UNITED STATES OMB APPROVAL
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)
Starrett Corporation
(Name of Issuer)
Common Stock, par value $1.00 per share
(Title of Class of Securities)
855 677 100
(CUSIP Number)
Oded Aboodi
1285 Avenue of the Americas
New York, New York 10019
(212) 641-5111
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 26, 1997
(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(b)(3) or (4), check the following box \ \
Check the following box if a fee is being paid with this
statement \ \. (A fee is not required only if the filing person:
(1) has a previous statement on file reporting beneficial
ownership of more than five percent of the class of securities
described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter the disclosures provided
in a prior cover page.
The information required in 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).
Note: Six copies of this statement, including all exhibits,
should be filed with the commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.<PAGE>
SCHEDULE 13D
CUSIP No. 855 677 100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ODED ABOODI (###-##-####)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) \X\
(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
NUMBER OF SHARES BENEFICIALLY OWNED BY? EACH REPORTING PERSON
WITH
7 SOLE VOTING POWER
387,360
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
387,360
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
387,360
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* \ \
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.2%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
SCHEDULE 13D
CUSIP No. 855 677 100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
OEA PARTNERS (22-240-9314)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) \X\
(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
New Jersey
NUMBER OF SHARES BENEFICIALLY OWNED BY? EACH REPORTING PERSON
WITH
7 SOLE VOTING POWER
50,000
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
50,000
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
50,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* \ \
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
SCHEDULE 13D
CUSIP No. 855 677 100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KADIMA PARTNERS (22-276496)
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
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY? EACH REPORTING PERSON
WITH
7 SOLE VOTING POWER
308,760
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
308,760
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
308,760
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* \ \
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.9%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
This Amendment to Schedule 13D is being filed on behalf of
Oded Aboodi, OEA Partners and Kadima Partners, and amends the Schedule
13D dated January 18, 1989, as heretofore amended, relating to shares
of Common Stock, $1.00 par value ("Common Stock") of Starrett
Corporation, a New York corporation, 909 Third Avenue, New York, New
York 10022, as set forth below.
The purpose of this filing is to report that Paul Milstein,
Henry Benach, Oded Aboodi and Irving Fischer (the "Shareholders") and
Starrett Acquisition, Inc., a New York corporation ("Acquisition") have
entered into an agreement relating to the proposed merger between
Acquisition and the Company.
Item 4. Purpose of Transaction.
Item 4 is hereby amended as follows:
On June 26, 1997, the Shareholders entered into an agreement
(the "Agreement") with Acquisition relating to a proposed merger (the
"Merger") between the Company and Acquisition pursuant to which all
shareholders of the Company will receive a cash payment of $12.25 per
share. The Agreement contains, among other things, a timetable for the
negotiation and consummation of the Merger, transfer restrictions
relating to the Common Stock held by the Shareholders, and an agreement
by the Shareholders to vote their shares of the Company's Common Stock
in favor of the Merger, grants Acquisition an option to purchase the
Shareholders' Common Stock under certain circumstances in which event,
if such option is exercised, Acquisition would be obliged to make an
all cash tender offer for all outstanding shares of the Company's
Common Stock at $12.25 per share, and gives the Shareholders a put of
their shares of Common Stock to Acquisition under certain
circumstances.
Item 6. Contracts, Arrangements, Undertakings or Relationships with
Respect to Securities of the Issuer.
On June 26, 1997 the Shareholders and Acquisition entered into
the Agreement relating to the proposed Merger.
Item 7. Material to be Filed as Exhibits.
This amendment includes the following exhibit:
- Agreement dated June 26, 1997 between Shareholders and
Acquisition.
SIGNATURE
After reasonable inquiry and to the best of our knowledge
and belief, the undersigned certifies that the information set forth in
this Statement on Schedule 13D is true, complete and correct.
DATED: June 30, 1997
/s/Oded Aboodi
Oded Aboodi
KADIMA PARTNERS
By:/s/Oded Aboodi
Oded Aboodi
General Partner
OEA PARTNERS
By:/s/Oded Aboodi
Oded Aboodi
General Partner
EXHIBIT *6/26/97*
AGREEMENT, dated as of June 26, 1997, among PAUL MILSTEIN
("Milstein"), HENRY BENACH ("Benach"), IRVING FISCHER ("Fischer") and
ODED ABOODI ("Aboodi"), each a shareholder of Starrett Corporation, a
New York corporation ("Starrett," and Milstein, Benach, Fischer and
Aboodi collectively being referred to herein as the "Shareholders"),
and STARRETT ACQUISITION, INC., a New York corporation ("Acquisition").
WHEREAS, Starrett is in the process of negotiating a merger with
Acquisition and another corporation controlled by Jacob A. Frydman,
pursuant to which each outstanding share of Starrett's common stock,
par value $1.00 per share (the "Starrett Common Stock"), shall be
exchanged for $12.25 in cash (the "Merger") and the surviving
corporation in the Merger shall purchase for $2,000,000 Milstein's 35%
equity interests in Gateway Estates Joint Venture, a New York joint
venture (the "Milstein Interests");
WHEREAS, the Merger shall be effected through an agreement and
plan of merger (the "Merger Agreement") to be negotiated by Starrett
and Acquisition which will provide for the Merger and the purchase of
the Milstein Interests and contain representations, warranties,
covenants and conditions of the constituent corporations customary for
transactions of this nature, including but not limited to opinions of
counsel, certificates of officers, approvals of shareholders, receipt
of a reasonably acceptable commitment for Acquisition's financing
within 40 days following the execution and delivery of this Agreement,
the right of Acquisition to conduct a complete business, legal and
financial due diligence investigation of Starrett (the "Due Diligence
Investigation") within 40 days following the execution and delivery of
this Agreement, a customary no-shop provision binding on Starrett, a
break-up fee payable by Starrett as provided in Section 2(f) hereof and
(without duplication) a break-up fee payable by Starrett of $5 million
plus Acquisition's expenses in connection with the Merger (not to
exceed $300,000) in the event that a closing does not take place under
the Merger Agreement by reason of a wilful breach by Starrett of
certain of its covenants;
WHEREAS, Milstein and the entities listed on Schedule A (the
"Milstein Group") collectively own 2,153,386 shares of the Starrett
Common Stock;
WHEREAS, Benach is the owner of 690,248 shares of the Starrett
Common Stock;
WHEREAS, Fischer is the owner of 72,040 shares of the Starrett
Common Stock;
WHEREAS, Aboodi and the entities listed on Schedule B (the
"Aboodi Group") collectively own 387,360 shares of the Starrett Common
Stock (the shares of Starrett Common Stock owned by the Milstein Group,
Benach, Fischer and the Aboodi Group are collectively referred to as
the "Shares");
WHEREAS, the Shareholders are executing this Agreement as an
inducement to Acquisition and its affiliates to facilitate the Merger
and the financing thereof.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Agreement to Vote Shares. Each of the
Shareholders agrees, and Milstein and Aboodi
respectively agree to cause the other members of
the Milstein Group and the Aboodi Group
respectively, to vote the Shares and any other
shares of Starrett Common Stock which he or they,
directly or indirectly, control, at any meeting
or in connection with any written consent of
Starrett shareholders (a) in favor of the Merger,
(b) in favor of the Merger Agreement, (c) against
any other transaction, including any merger, sale
or other business combination between Starrett
and any other person or entity, or any other
action which would make it impractical for
Starrett to effect the Merger, and (d) against
any amendment of Starrett's Certificate of
Incorporation or By-laws or other proposal or
transaction involving Starrett or any of its
subsidiaries which amendment or other proposal or
transaction would in any manner impede,
frustrate, prevent or nullify, or result in a
breach of any covenant, representation or
warranty or any other obligation or agreement of
Starrett under or with respect to, the Merger,
the Merger Agreement or any of the other
transactions contemplated by the Merger
Agreement.
SECTION 2. Option to Purchase Shares and Interests.
a. Grant of Option. Each of the Shareholders grants, and
Milstein and Aboodi respectively agree to cause the other
members of the Milstein Group and the Aboodi Group
respectively to grant, to Acquisition an exclusive and
irrevocable option to purchase all of the Shares owned by
him or them, and Milstein grants to Acquisition an exclusive
and irrevocable option to purchase all of the Milstein
Interests (collectively, the "Option"), at the exercise
price specified in subsection (b) hereof, during the period
and subject to the conditions to exercise specified in
subsection (c) hereof.
b. Exercise Price. The exercise price for the Shares subject
to the Option shall be $12.25 per share. The aggregate
exercise price for the Milstein Interests subject to the
Option shall be $2,000,000.
c. Exercise of Options.
(i) The Option is exercisable solely upon (w) a termination
of the Merger Agreement because of a breach by Starrett of any of its
covenants under the Merger Agreement; (x) a termination of the Merger
Agreement by Starrett as may be required pursuant to the fiduciary
duties of Starrett's Board of Directors in accordance with the New York
Business Corporation Law; (y) a tender offer to the shareholders of
Starrett by a party other than Acquisition, an affiliate of
Acquisition, the Shareholders or their affiliates, to purchase the
outstanding shares of Starrett Common Stock for a purchase price in
excess of $12.25 per share in cash; or (z) a termination of the Merger
Agreement because of the failure of two-thirds of the then outstanding
shares of Starrett Common Stock to be voted in favor of the Merger
(each, an "Exercise Event"), and if exercisable, may be exercised at
any time prior to the Expiration Date (as defined below); provided that
the Option must be exercised in whole with respect to all of the
Shares and Milstein Interests, and not in part.
(ii) The "Expiration Date" shall be 10 business days after
the occurrence of an Exercise Event.
(iii) To exercise the Option, Acquisition shall, prior to
the Expiration Date, send a written notice (a "Notice of Exercise") to
the Shareholders specifying the date of the closing (the "Closing") of
the purchase (which date shall be no earlier than five nor later than
ten business days after the date such Notice is received by Milstein),
together with a good faith deposit of $5 million paid by check payable
to Milstein on account of the exercise price; provided that, if
Acquisition has sent a Notice of Exercise prior to the Expiration Date,
the Closing shall be extended during the pendency of any legal action
or proceeding which has enjoined the Closing, until 15 days after the
date such injunction is no longer pending, but in no event for a
period of more than 60 days. The Closing shall take place at 10:00
a.m. at the offices of Frydman & Company on the date specified in such
Notice, subject to such extension. If the Closing shall not take
place because such injunction is pending for a period of more than 60
days, the Shareholders shall promptly return to Acquisition the $5
million good faith deposit and this Agreement shall terminate.
(iv) At the Closing, Acquisition shall wire transfer in
accordance with Schedule C hereto the amount determined by multiplying
the number of Shares by $12.25, less the $5 million good faith
deposit. With respect to the Milstein Interests, at the Closing
Acquisition shall wire transfer to the account of Milstein the sum of
$2,000,000. At the Closing, each of the Shareholders shall deliver
to Acquisition certificates representing all of the Shares owned by
him, or in the case of Milstein or Aboodi, all of the Shares owned by
the Milstein Group and the Aboodi Group respectively, duly endorsed in
blank or accompanied by stock powers executed in blank, and with all
necessary transfer taxes paid, and Milstein shall deliver to
Acquisition evidence of the transfer of all of the Milstein Interests.
d. Put of Shares to Acquisition. If a party other than
Acquisition, an affiliate of Acquisition, the Shareholders
or their affiliates make a tender offer to the shareholders
of Starrett to purchase the outstanding shares of Starrett
Common Stock for a purchase price in excess of $12.25 per
share in cash, and such tender offer occurs prior to
Acquisition's exercise of the Option and prior to the
Merger, the Shareholders shall have the option to require
Acquisition to purchase the Shares for a purchase price of
$12.25 per share in cash, and Milstein shall have the option
to require Acquisition to purchase the Milstein Interests
for a purchase price of $2,000,000 in cash (together, the
"Put"); provided, however, that the Put of the Shares and
the Milstein Interests must cover all of the Shares and the
Milstein Interests, and may not be made in part, and the
Put shall be void and of no effect if prior to the
expiration of the 40-day Due Diligence Investigation period
Acquisition gives notice to the Shareholders terminating the
Merger Agreement and this Agreement. To exercise the Put,
the Shareholders shall send a written notice (the "Put
Notice of Exercise") to Acquisition specifying the date of
the closing (the "Put Closing") of the purchase (which shall
be no earlier than five nor later than ten business days
after the date the Put Notice of Exercise is received by
Acquisition, but in no event earlier than the expiration of
the 40-day Due Diligence Investigation period). The Put
Closing shall take place at 10:00 a.m. at the office of
Frydman & Company on the date specified in such Put Notice
of Exercise.
e. Post Closing Covenant. Acquisition agrees that in the
event that the Option is exercised in accordance with
Section 2 hereof and provided that no Merger shall have
occurred prior thereto, it will within 90 days after the
Closing make a tender offer to the remaining shareholders of
Starrett to purchase all their shares of Starrett Common
Stock at a price of $12.25 per share in cash, which tender
offer shall be consummated within 60 days after the
commencement of the tender offer; provided that such 60-day
period shall be extended for the number of days that any
administrative or judicial order prohibits or enjoins the
consummation of the tender offer. Acquisition further
agrees that upon the exercise of the Option and until the
Merger or consummation of such tender offer, Acquisition
will (i) continue to operate Starrett in the ordinary course
of business; (ii) not transfer the Shares; and (iii) operate
Starrett so that (A) there is no "business combination" (as
such term is used in Section 912(a)(5) of the New York
Business Corporation Law) with any person or entity who at
any time from and after the date hereof is an associate or
affiliate of Acquisition and (B) there is no payment by
Starrett of material compensation to, or entering into by
Starrett of a material transaction or business relationship
(not described in clause (A) above), or any commitment for
any such compensation, transaction or relationship, with
Acquisition or any associate or affiliate of Acquisition
unless such compensation, transaction, relationship or
commitment is unanimously approved by the Starrett Board of
Directors, which Board of Directors shall at the time of
such approval contain at least two independent directors (as
such term is used in the American Stock Exchange Listing
Standards and Requirements).
f. Termination of Option. Notwithstanding, the foregoing
provisions of Sections 2(a), (d) and (e), if a tender offer
is made to the shareholders of Starrett by a party other
than Acquisition, an affiliate of Acquisition, the
Shareholders or their affiliates, to purchase the
outstanding shares of Starrett Common Stock for a purchase
price in excess of $12.25 per share in cash, and if the
Board of Directors of Starrett recommends to its
shareholders the acceptance of such tender offer, the Option
and the Put shall terminate and (i) the Shareholders shall
cause Starrett to pay to Acquisition a break-up fee of $2.5
million plus $500,000 on account of Acquisition's expenses
in connection with the Merger and (ii) the Shareholders
shall pay to Acquisition an additional break-up fee in the
amount of the greater of (I) $2.25 million or (II) the
product of the number of Shares owned by the Shareholders
and the difference between the net tender offer price per
share in such tender offer and $12.25. Such payments shall
be made contemporaneously with said recommendation of
Starrett's Board of Directors; provided that if the product
set forth in clause (ii) (II) exceeds $2.25 million, $2.25
million shall be paid by the Shareholders at such time and
any excess shall be paid by the Shareholders
contemporaneously with the payment of the net tender offer
price per share in such tender offer to the Shareholders.
Other than the provisions of this Section 2(f), this
Agreement and the Merger Agreement shall terminate upon the
termination of the Option and the Put, except that the
obligation of Starrett to make the payments described in
this Section 2(f) shall survive such termination.
SECTION 3. Letter of Credit. Acquisition agrees, upon the
execution and delivery of this Agreement, to
deliver to the Shareholders an irrevocable stand-
by letter of credit in the amount of $5 million,
which letter of credit shall be drawn on a bank
located in New York City reasonably acceptable to
the Shareholders which shall provide that (a) if
Acquisition does not consummate the Merger in
accordance with the Merger Agreement, other than
by reason of any conditions to the obligation of
Acquisition consummating the Merger under the
Merger Agreement failing to be satisfied other
than through the fault of Acquisition, or (b)
Acquisition breaches its obligation to purchase
the Shares and the Milstein Interests pursuant to
the Put provided for in Section 2(d), or (c)
Acquisition breaches its post-closing covenant
provided for in Section 2(e), the Shareholders
(for the benefit of themselves or their
designees) shall have the right immediately to
draw down such letter of credit. If the Merger
Agreement has not been executed and delivered by
Starrett or Acquisition within 10 business days
of the date hereof, or if the Merger Agreement
has been so executed and delivered, but all of
the conditions to the obligation of Acquisition
consummating the Merger under the Merger
Agreement (other than the approval of two-thirds
of the shares of Starrett Common Stock and other
than through the fault of Acquisition) have not
been satisfied or waived prior to October 31,
1997 and the Merger Agreement has terminated, the
letter of credit shall terminate and may not be
drawn down on. Furthermore, the letter of credit
shall terminate and may not be drawn down on if
any of the following events occurs: (a) failure
of the Board of Directors of Starrett to approve
the execution and delivery of the Merger
Agreement; (b) failure to occur of the expiration
or termination of the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act") prior to October 31, 1997
other than by reason of Acquisition's breach of
its obligations under the Merger Agreement with
respect thereto; (c) termination of the Merger
Agreement by Acquisition, in its sole discretion
and after notice to Starrett, on or prior to the
last day of the 40-day Due Diligence
Investigation period; (d) failure of the
Shareholders to deliver the Shares in the event
that Acquisition exercises the Option pursuant to
Section 2 hereof; (e) the occurrence of the
Expiration Date without the Option having been
exercised, provided that the Merger Agreement has
terminated; or (f) if the Option has been
exercised, August 10, 1998.
SECTION 4 Covenants. Each of Benach and Fischer agree,
and each of Milstein and Aboodi agree on behalf
of themselves and the members of the Milstein
Group and the Aboodi Group respectively, that:
a. He or they shall not, except consistent with the terms of
this Agreement, (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any
sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Shares or any interest
therein, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of
any or all of the Shares or any interest therein, (iii)
take any other action that would in any way restrict, limit
or interfere with the performance of their obligations
hereunder or the transactions contemplated hereby, or (iv)
grant any proxies or powers of attorney with respect to any
of the Shares, deposit any Shares into a voting trust or
enter into a voting agreement with respect to such Shares.
Notwithstanding the foregoing, members of the Milstein Group
and the Aboodi Group may transfer their Shares to other
members of the Milstein Group and the Aboodi Group,
respectively, or in the case of the Milstein Group, other
members of the Milstein family, trusts or estates for their
benefits or foundations controlled by them, subject to such
transferees becoming parties to and bound by all of the
terms of this Agreement.
b. Solely in their capacities as shareholders of Starrett, and
not in any fiduciary capacity, he or they shall not, nor
shall they permit any investment banker, attorney or other
adviser or representative retained or engaged by them to,
directly or indirectly, (i) solicit, initiate or encourage
the submission of, any takeover proposal; (ii) participate
in any substantive discussions or negotiations regarding, or
furnish to any person any substantive information with
respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any takeover
proposal; or (iii) agree to or endorse an acquisition
transaction with any person (other than Acquisition or its
affiliates) or any agreement, arrangement or understanding
with respect to any such acquisition transaction or which
would require Starrett to abandon, terminate or fail to
consummate the Merger or any other transaction contemplated
by this Agreement. Notwithstanding the foregoing, any action
by an investment banker, attorney, or other adviser or
representative of Starrett, or by an officer or director of
Starrett (including action by the Shareholders acting in
such fiduciary capacity), on behalf of Starrett and not on
behalf of the Shareholders, which would be a violation of
the preceding sentence if taken by the Shareholders in their
capacity as Shareholders, shall not be deemed a violation of
this Section 4(b) by the Shareholders; and
c. He or they will not enter into any transaction, take any
action, or directly or indirectly cause any event to occur
that would result in any of the representations or
warranties of the Shareholders herein contained not being
true and correct at and as of the time immediately after
the occurrence of such transaction, action or event.
SECTION 5. Representations and Warranties. Each of Benach
and Fischer represent and warrant, and each of
Milstein and Aboodi represent and warrant on
behalf of themselves and the members of the
Milstein Group and the Aboodi Group respectively,
that:
a. Except as otherwise set forth on Schedule C, he or they
are the record and beneficial owners of the Shares set forth
on Schedule C and, except for the Shares, he or they are
not the record or beneficial owner of any shares of Starrett
Common Stock.
b. This Agreement has been duly executed and delivered by
such Shareholder and constitutes the legal, valid and
binding obligation of such Shareholder, enforceable against
such Shareholder in accordance with its terms. Neither the
execution and delivery of this Agreement nor the
consummation by such Shareholder of the transactions
contemplated hereby will result in a violation of, or a
default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or
restriction of any kind to which such Shareholder is a party
or bound or to which the Shares are subject. Consummation
by such Shareholder of the transactions contemplated hereby
will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to such
Shareholder or the Shares, except for any filing under the
HSR Act and the filing of an amendments to the Schedules
13D filed by such Shareholder with respect to the Starrett
Common Stock.
c. The Shares owned by him or them and the certificates
representing such Shares are now and at all times during the
term hereof will be held by such Shareholder, members of the
Milstein Group or members of the Aboodi Group, as the case
may be, or by a nominee or custodian for his or their
benefit, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies
arising hereunder.
d. No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection
with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Shareholder.
e. Neither such Shareholder and, in the case of each of
Milstein and Aboodi, no member of the Milstein Group or the
Aboodi Group respectively, is a resident of a state having
community property laws.
SECTION 6. Certain Events. Each of Benach and Fischer
agree, and each of Milstein and Aboodi agree on
behalf of themselves and the members of the
Milstein Group and the Aboodi Group respectively
agree, that this Agreement and the obligations
hereunder shall attach to the Shares owned by him
or them and shall be binding upon any person or
entity to which legal or beneficial ownership of
such Shares shall pass, whether by operation of
law or otherwise, including without limitation
such person's heirs, guardians, administrators or
successors. In the event of any stock split,
stock dividend, merger, reorganization,
recapitalization or other change in the capital
structure of Starrett affecting the Starrett
Common Stock, or the acquisition of additional
shares of Starrett Common Stock or other voting
securities of Starrett by such Shareholder, this
Agreement and the obligations hereunder shall
attach to any additional shares of Starrett
Common Stock or other voting securities of
Starrett issued to or acquired by such
Shareholder. In the event of a stock dividend or
distribution, or any change in Starrett Common
Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares
or the like, the term "Shares" shall be deemed to
refer to and include the Shares as well as all
such stock dividends and distributions and any
shares into which or for which any or all of the
Shares may be changed or exchanged.
SECTION 7. Further Assurances. The Shareholders and
Acquisition shall, upon request of the other,
execute and deliver any additional documents and
take such further actions as may reasonably be
deemed by the Shareholders or Acquisition to be
necessary or desirable to carry out the
provisions hereof.
SECTION 8. Termination. This Agreement shall terminate if
the Merger Agreement is not executed within ten
business days of the date hereof for any reason,
and shall terminate on the earliest of (i) the
consummation of the Merger, (ii) the termination
of the last period of time during which
Acquisition could have exercised the Option
pursuant to Section 2, provided that if
Acquisition has exercised the Option pursuant to
Section 2, the obligations of Acquisition under
Section 2(e) of this Agreement shall survive its
termination, or (iii) termination of the Merger
Agreement other than for reasons set forth in
subsections (w), (x), (y) and (z) of Section
2(c)(i) hereof.
SECTION 9. Agreements and Representations of Shareholders.
As among the Shareholders, the agreement or
representation of a Shareholder shall constitute
an agreement or representation of such
Shareholder individually and severally, not
jointly, and shall not constitute an agreement or
representation by such Shareholder on the part of
the other Shareholders, except that the agreement
or representation of Milstein or Aboodi on behalf
of the Milstein Group or the Aboodi Group shall
be the agreement or representation of Milstein or
Aboodi and his respective Group jointly.
SECTION 10. Miscellaneous.
a. All communication under this Agreement shall be in writing
and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to Acquisition:
111 Fulton Street
New York, New York 10038
(212) 732-0300
with a copy to:
Edward H. Cohen, Esq.
Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022
(212) 940-8580
If to the Shareholders:
c/o Paul Milstein
1271 Avenue of the Americas
New York, New York 10020
(212) 708-0800
with a copy to:
Edwin Petz
Milstein Properties
1271 Avenue of the Americas
New York, New York 10020
(212) 708-0800
and
Peter G. Samuels, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York
(212) 969-3000
b. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
c. This Agreement constitutes the entire agreement relating
to the subject matter covered herein, and supersedes all
prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
d. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York,
regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
e. Neither this Agreement nor any of the rights, interests
or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any
of the parties without the prior written consent of the
other parties, except by laws of descent and except as
provided in Section 4(a).
f. If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any
extent, be held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain
in full force and effect, shall not in any way be affected,
impaired or invalidated, and shall be enforced to the
fullest extent permitted by law.
g. The Shareholders each agree that irreparable damage would
occur and that Acquisition would not have any adequate
remedy at law in the event that any of the provisions of
this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is
accordingly agreed that Acquisition shall be entitled to an
injunction or injunctions to prevent breaches by any
Shareholder of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court, in
addition to any other remedy to which he is entitled at law
or in equity. In addition, each of the parties hereto (i)
consents to submit such party to the personal jurisdiction
of any Federal court located in the State of New York or
any New York state court in the event any dispute arises
out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not
attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and
(iii) agrees that such party will not bring any action
relating to this Agreement of any of the transactions
contemplated hereby in any court other than a Federal court
sitting in the State of New York or a New York state court.
h. No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it
shall be in writing and signed by such party.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
Paul Milstein
Henry Benach
Irving Fischer
Oded Aboodi
STARRETT ACQUISITION, INC.
By:
Jacob Frydman
President
SCHEDULE A
MILSTEIN GROUP
PIM Holding
Bradley Associates
Builtland Partners
SVM Holding
Milstein Foundation
Milstein Non Reporting
SCHEDULE B
ABOODI GROUP
OEA Partners
Kadima Partners
SCHEDULE C
Shareholder or Member of Group Number of Shares Owned
Henry Benach 586,196
Irving Fischer 71,000
Paul Milstein 303,000
PIM Holding
Bradley Associates
Builtland Partners
SVM Holding
Milstein Foundation
Milstein Non Reporting
Oded Aboodi 28,600
OEA Partners
Kadima Partners
