AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 1999.
REGISTRATION NO. 333-13781
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NIAGARA MOHAWK HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 16-1549726
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
300 ERIE BOULEVARD WEST
SYRACUSE, NEW YORK 13202
(315) 474-1511
(Address of Principal Executive Offices, including Zip Code)
EMPLOYEE SAVINGS FUND PLAN FOR REPRESENTED EMPLOYEES
OF NIAGARA MOHAWK POWER CORPORATION
EMPLOYEE SAVINGS FUND PLAN FOR NON-REPRESENTED EMPLOYEES
OF NIAGARA MOHAWK POWER CORPORATION
(FULL TITLE OF PLANS)
WILLIAM F. EDWARDS
NIAGARA MOHAWK HOLDINGS, INC.
SENIOR VICE PRESIDENT &
CHIEF FINANCIAL OFFICER
300 ERIE BOULEVARD WEST
SYRACUSE, NEW YORK 13202
(315) 474-1511
(Name, address, and telephone number, including area code, of agent for service)
THIS POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT (NO.
333-13781) SHALL BECOME EFFECTIVE UPON FILING IN ACCORDANCE WITH RULE 464 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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On March 18, 1999, the shares of our common stock were exchanged for the
shares of common stock of Niagara Mohawk Power Corporation ("NMPC") pursuant to
an Agreement and Plan of Exchange that we entered into on May 14, 1998. We are
filing this post-effective amendment pursuant to Rule 414(d) under the
Securities Act of 1933, as amended (the "Act"), so that we may expressly adopt
this registration statement (333-13781) as our own for all purposes of the Act
and the Securities Exchange Act of 1934, as amended. The shares of common stock
issuable under NMPC's Employee Savings Fund Plans for Represented Employees and
for Non-Represented Employees which are registered under the Registration
Statement will be shares of our common stock rather than shares of NMPC common
stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate into the prospectus information that we have
filed with it or will file in the future. This means that we can disclose
important information to you by referring you to our SEC filings. Information
that we file later with the SEC will automatically update and supersede the
information in this prospectus. As successor to NMPC, we are incorporating into
the prospectus the documents listed below and any future filings made with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934 until all of the common stock registered in this Registration Statement has
been sold:
1. The description of Niagara Mohawk Holdings, Inc. common stock contained in
Amendment No. 2 to its Registration Statement on Form S-4 dated May 29, 1998.
2. Annual Report on Form 10-K filed by NMPC for the year ended December 31,
1998.
3. Our Current Report on Form 8-K dated March 19, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning:
Leon T. Mazur
Niagara Mohawk Holdings, Inc.
300 Erie Boulevard West
Syracuse, New York 13202
(315) 474-1511
You should rely only on the information contained in this prospectus, any
supplement to it and the SEC filings that we have incorporated by reference. We
have not authorized anyone else to provide you with different information. You
should not assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of those documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock being offered hereby has been
passed upon by Gary J. Lavine, Esq., Senior Vice President and Chief Legal
Officer of the Company. Mr. Lavine owns or has the right to acquire a number of
shares of Common Stock equal to less than 0.01% of the Company's outstanding
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 721 through 726 of the Business Corporation Law of the State of New
York (the "BCL") provide for indemnification of the Company's officers and
directors under certain conditions and subject to specific limitations. The BCL
permits New York corporations to supplement the statutory indemnification with
additional "non-statutory"
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indemnification for directors and officers meeting a specified standard of
conduct and to advance to officers and directors litigation expenses under
certain circumstances. As permitted by the BCL, Article VI of the Company's
By-Laws provides for indemnification of, and advancement of litigation expenses
incurred by, directors and officers of the Company.
The Company has also obtained insurance providing for indemnification of
directors and officers against certain expenses and liabilities. In addition,
pursuant to a 1986 amendment to the BCL, NMPC has entered into agreements with
certain of the officers and directors of NMPC providing for indemnification for
the liability of officers and directors not covered by the policy mentioned
above and the Company has agreed to enter into similar arrangements with its
officers who are not officers of NMPC. Such additional indemnification does not
cover acts committed in bad faith or acts which were the result of active and
deliberate dishonesty. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Furthermore, Article Thirteen of the Restated Certificate of Incorporation of
the Company limits, with certain exceptions, the personal liability of a
director of the Company to the Company or its shareholders for damages for any
breach of duty in such capacity to the fullest extent permitted by the BCL.
ITEM 8. EXHIBITS
Index to Exhibits
3(a) Restated Certificate Incorporation of Niagara Mohawk Holdings, Inc.
under Section 807 of the Business Corporation Law of New York.*
3(b) By-Laws of Niagara Mohawk Holdings, Inc.*
5(a) Opinion of Gary J. Lavine
23(a) Consent of Gary J. Lavine (included in Exhibit 5(a))
23(b) Consent of PricewaterhouseCoopers LLP
* Incorporated by reference to the Current Report on Form 8-K of
Niagara Mohawk Holdings, Inc. filed on March 19, 1999.
ITEM 9. UNDERTAKINGS
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
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(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, 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. If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of this chapter at the
start of any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by Section
10(a)(3) of the Act need not be furnished, provided, that the
registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act or Rule 3-19 of
this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the Form F-3.
(b) 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 provisions described under "Item 15,
Indemnification of Directors and Officers" above, 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 the 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.
(c) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(d) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the
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prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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
post-effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Syracuse,
State of New York, on the 23rd day of March 1999.
NIAGARA MOHAWK HOLDINGS, INC.
By:
/s/ Steven W. Tasker
--------------------------------
Name: Steven W. Tasker
Title: Vice President-Controller
Pursuant to the requirements of the Securities Act of 1933, this
post-effective Amendment to the Registration Statement has been signed by the
following persons in the capacities indicated on March 19, 1999.
Signature Title Date
--------- ----- ----
/s/ William E. Davis Chairman of the Board and March 19, 1999
- ----------------------------- Chief Executive Officer
William E. Davis
/s/ Albert J. Budney, Jr. President March 19, 1999
- -----------------------------
Albert J. Budney, Jr.
/s/ David J. Arrington Senior Vice President and March 19, 1999
- ----------------------------- Chief Administrative Officer
David J. Arrington
/s/ William F. Edwards Senior Vice President and March 19, 1999
- ----------------------------- Chief Financial Officer
William F. Edwards
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/s/ Gary J. Lavine Senior Vice President and March 19, 1999
- ----------------------------- Chief Legal officer
Gary J. Lavine
/s/ Salvatore H. Alfiero Director March 19, 1999
- -----------------------------
Salvatore H. Alfiero
/s/ Albert J. Budney, Jr. Director March 19, 1999
- -----------------------------
Albert J. Budney, Jr.
/s/ Dr. Bonnie G. Hill Director March 19, 1999
- -----------------------------
Dr. Bonnie G. Hill
Director
- -----------------------------
Clark A. Johnson
/s/ Henry A. Panasci, Jr. Director March 19, 1999
- -----------------------------
Henry A. Panasci, Jr.
/s/ William F. Allyn Director March 19, 1999
- -----------------------------
William F. Allyn
/s/ William E. Davis Director March 19, 1999
- -----------------------------
William E. Davis
/s/ William J. Donlon Director March 19, 1999
- -----------------------------
William J. Donlon
Director
- -----------------------------
Anthony H. Gioia
/s/ Dr. Patti McGill Peterson Director March 19, 1999
- -----------------------------
Dr. Patti McGill Peterson
/s/ Lawrence Burkhardt Director March 19, 1999
- -----------------------------
Lawrence Burkhardt, III
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Director
- -----------------------------
Douglas M. Costle
/s/ Donald B. Riefler Director March 19, 1999
- -----------------------------
Donald B. Riefler
/s/ Stephen B. Schwartz Director March 19, 1999
- -----------------------------
Stephen B. Schwartz
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The Plans. Pursuant to the requirements of the Securities Act, the
administrator of the Plans has duly caused this post-effective amendment to the
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Syracuse, State of New York, on the
22nd of March, 1999.
EMPLOYEE SAVINGS FUND PLAN
FOR REPRESENTED EMPLOYEES OF
NIAGARA MOHAWK POWER CORPORATION
EMPLOYEE SAVINGS FUND PLAN
FOR NON-REPRESENTED EMPLOYEES OF
NIAGARA MOHAWK POWER CORPORATION
By: /s/ David J. Arrington
----------------------------------------
(David J. Arrington, Chairman,
Employee Savings Fund Plan Committee)
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EXHIBIT 5(a)
NIAGARA MOHAWK HOLDINGS, INC.
March 23, 1999
Niagara Mohawk Holdings, Inc.
300 Erie Boulevard West
Syracuse, New York 13202
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of 5,000,000 shares (the "Shares") of the Common Stock,
par value $0.01 per share of Niagara Mohawk Holdings, Inc., a New York
corporation (the "Company"), that may be issued from time to time in connection
with Niagara Mohawk Power Corporation's Represented Employees' Savings Fund
Plan, as amended, and the Niagara Mohawk Power Corporation's Non-Represented
Employees' Savings Fund Plan, as amended (collectively, the "Plans"), I, as
Senior Vice President and Chief Legal Officer of the Company, have examined such
corporation records, certificates and other documents, and such questions of
law, as I have considered necessary or appropriate for the purposes of this
opinion.
Upon the basis of such examination, I advise you that, in my opinion,
when the registration statement relating to the Shares (the "Registration
Statement") has become effective under the Act, the terms of the sale of the
Shares have been duly established in conformity with the Company's certificate
of incorporation, as amended, so as not to violate any applicable law or result
in a default under or breach of any agreement or instrument binding on the
Company and so as to comply with any requirements or
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restriction imposed by any court or governmental body having jurisdiction over
the Company, all regulatory consents or approvals (including without limitation
those of the Public Service Commission of the State of New York) for the
issuance and sale of the Shares have been obtained and the Shares have been duly
issued, fully paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the State of New York, and I am expressing no opinion as
to the effect of the laws of any other jurisdiction.
I have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by me to be
responsible.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to me under the heading "Interests
of Named Experts and Counsel" in the Registration Statement. In giving such
consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
/s/ Gary J. Lavine
-2-
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (Nos. 33-36189, 33-42771 and 333-13781) and to the
incorporation by reference in the Prospectus constituting part of the
Registration Statement on Form S-3 (Nos. 33-50703, 33-51073, 33-54827, 33-55546
and 333-55923) and in the Prospectus/Proxy Statement constituting part of the
Registration Statement on Form S-4 (No. 333-49769) of Niagagra Mohawk Power
Corporation, and as such Registration Statements may be adopted by Niagara
Mohawk Holdings, Inc., of our report dated January 28, 1999 appearing in the
Form 10-K dated March 9, 1999 of Niagara Mohawk Power Corporation. We also
consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears in Form 10-K.
/s/ PricewaterhouseCoopers LLP
- ---------------------------------
PricewaterhouseCoopers LLP
Syracuse, New York
March 23, 1999
