AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON MARCH 19, 1999.
REGISTRATION NO. 333-55923
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
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)
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300 ERIE BOULEVARD WEST
SYRACUSE, NEW YORK 13202
(315) 474-1511
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------------
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, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
JANET T. GELDZAHLER, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT AS DETERMINED BY MARKET CONDITIONS.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT WILL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
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 (333-55923) as our own for all purposes of the Act
and the Securities Exchange Act of 1934, as amended. The shares of common stock
that selling shareholders may sell under the Registration Statement will be
shares of our common stock rather than shares of NMPC common stock.
INCORPORATION OF CERTAIN INFORMATION 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 West Erie Boulevard
Syracuse, New York 13202
(315) 474-1500
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.
PART II
ITEM 15. 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" 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.
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<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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 Sullivan & Cromwell
23(a) Consent of Sullivan & Cromwell (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 17. 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.
(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.
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<PAGE>
(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 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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<PAGE>
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-3 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 19 day of March 1999.
NIAGARA MOHAWK HOLDINGS, INC.
By:
/s/ Steven W. Tasker
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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
William E. Davis Chief Executive Officer
/s/ Albert J. Budney, Jr.
- ---------------------- President March 19, 1999
Albert J. Budney, Jr.
/s/ David J. Arrington
- ---------------------- Senior Vice President and March 19, 1999
David J. Arrington Chief Administrative Officer
/s/ William F. Edwards
- ---------------------- Senior Vice President and March 19, 1999
William F. Edwards Chief Financial Officer
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<PAGE>
/s/ Gary J. Lavine
- ---------------------- Senior Vice President and March 19, 1999
Gary J. Lavine Chief Legal officer
/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/ Bonnie G. Hill
- --------------------- Director March 19, 1999
Dr. Bonnie G. Hill
/s/
- --------------------- Director March 19, 1999
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 March __, 1999
Anthony H. Gioia
/s/ Dr. Patti McGill Peterson
- --------------------- Director March 19, 1999
Dr. Patti McGill Peterson
/s/ Lawrence Burkhardt, III
- --------------------- Director March 19, 1999
Lawrence Burkhardt, III
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_________________ Director March __, 1999
Douglas M. Costle
_________________ Director March __, 1999
Donald B. Riefler
/s/ Stephen B. Schwartz
- ---------------------- Director March 19, 1999
Stephen B. Schwartz
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EXHIBIT 23
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 19, 1999
<TABLE>
<S> <C>
SULLIVAN & CROMWELL
NEW YORK TELEPHONE: (212) 558-4000
TELEX: 62694 (INTERNATIONAL) 127816 (DOMESTIC) 125 Broad Street, New York 10004-2498
CABLE ADDRESS: LADYCOURT, NEW YORK __________
FACSIMILE: (212) 558-3588 (125 Broad Street)
1701 PENNSYLVANIA AVE, N.W., WASHINGTON, D.C. 20006-5805
1888 CENTURY PARK EAST, LOS ANGELES 90067-1725
8, PLACE VENDOME, 75001 PARIS
ST. OLAVE'S HOUSE, 9a IRONMONGER LANE, LONDON EC2V 8EY
101 COLLINS STREET, MELBOURNE 3000
2-1, MARUNOUCHI 1-CHOME, CHIYODA-KU, TOKYO 100
NINE QUEEN'S ROAD, CENTRAL, HONG KONG
OBERLINDAU 54-56, 60323 FRANKFURT AM MAIN
</TABLE>
Exhibit 5(a)
March 19, 1999
Niagara Mohawk Holdings, Inc.,
300 Erie Boulevard West,
Syracuse, New York 13202.
Dear Sirs:
In connection with the registration under the Securities Act of 1933
(the "Act") of 20,546,264 shares (the "Securities") of Common Stock, par value
$0.01 per share, of Niagara Mohawk Holdings, Inc., a New York corporation (the
"Company"), we, as your counsel, have examined such corporate records,
certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion. Upon the
basis of such examination, we advise you that, in our opinion, when the
registration statement relating to the Securities (the "Registration Statement")
has become effective under the Act, the terms of the sale of the Securities have
been duly established in conformity with the Company's certificate of
incorporation, and the Securities
<PAGE>
have been duly issued and sold as contemplated by the Registration Statement,
the Securities will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the United
States and the Business Corporation Law of the State of New York and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
the Shares" in the Prospectus adopted by the filing of the Registration
Statement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
