UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.5)*
Niagara Corporation
(Name of Issuer)
Common Stock, par value $.001 per share
(Title of Class of Securities)
653349100
(CUSIP Number)
Michael J. Scharf
P.O. Box 1592
Ponte Vedra, Florida 32004
(904) 285-5678
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
September 13, 1996**
(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 the statement ( ).
(A fee is not required only if the reporting 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.)
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.
*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 disclosures provided in a prior cover page.
**Pursuant to Rule 13d-2(a), the event does not require this amendment to
be filed, and consequently this amended and restated Schedule 13D is
being filed on a voluntary basis.
The information required on 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).
SCHEDULE 13D
CUSIP NO. 653349100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Michael J. Scharf
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) ( )
(b) ( )
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
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
7 SOLE VOTING POWER
1,198,750 (including shares issuable upon
the exercise of Warrants)
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,198,750 (including shares issuable upon
PERSON the exercise of Warrants)
WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,198,750 (including shares issuable upon the exercise
of Warrants)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* (X)
(excludes 200,000 shares underlying Options which are
not exercisable**)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.7%
14 TYPE OF REPORTING PERSON*
IN
**The Options will become exercisable with respect to twenty percent
of the underlying Shares on each of the next five anniversaries of
September 13, 1996 (provided Mr. Scharf continues to be employed by
the Issuer or one of its subsidiaries on such date) except in
the event of a Change in Control of the Issuer. See Items 5(a) and 6
hereof.
Michael J. Scharf hereby amends (and restates, pursuant to
Rule 101(a)(2)(ii) of Regulation S-T) his Statement on Schedule
13D, dated August 30, 1993, as amended on September 30, 1993,
October 29, 1993, February 4, 1994, and June 7, 1995, relating to
the Common Stock, $.001 par value, of Niagara Corporation
(formerly International Metals Acquisition Corporation), a
Delaware corporation.
Item 1. Security and Issuer.
This Statement relates to the Common Stock, par value $.001
per share ("Shares"), of Niagara Corporation, a Delaware
corporation (the "Issuer"). The Issuer's principal executive
offices are located at 667 Madison Avenue, New York, New York 10021.
Item 2. Identity and Background.
(a)-(b) This Statement is being filed by Michael J. Scharf,
a United States citizen, whose business address is c/o Niagara
Corporation, 667 Madison Avenue, New York, New York 10021.
(c) Mr. Scharf is Chairman of the Board, President and
Chief Executive Officer of the Issuer. Mr. Scharf is also Vice
President, Secretary, Treasurer and a director of Financial
Services Acquisition Corporation ("FSAC"), located at 667
Madison Avenue, New York, New York 10021.
(d)-(e) During the last five years, Mr. Scharf has not been
convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) nor has he been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, Federal
or State securities laws or finding any violations with respect
to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
In May 1993, in connection with the initial issuance of
Shares by the Issuer (the "Initial Issuance"), Mr. Scharf
purchased 200,000 Shares for an aggregate consideration of
$8,000.
On August 20, 1993, in connection with the initial public
offering (the "IPO") by the Issuer of 2,875,000 Units (each Unit
consisting of one Share and two Redeemable Common Stock Purchase
Warrants ("Warrants")), Mr. Scharf purchased (including purchases
through IRA accounts) an additional 167,000 Shares, along with
334,000 Warrants, for an aggregate consideration of $1,002,000.
Each Warrant entitles the registered holder thereof to purchase
from the Issuer, until the close of business on August 13, 2000,
one Share for $5.50, subject to adjustment in certain circumstances.
As a result of the consummation on August 16, 1995 of the Acquisi-
tion described below in Item 6, the Warrants became exercisable.
On September 22, 1993, Mr. Scharf purchased an additional
50,000 Shares through a privately negotiated transaction at $4.75
per Share for an aggregate consideration of $237,500.
On October 22, 1993, Mr. Scharf purchased an additional
30,000 Shares through a privately negotiated transaction at
$4.625 per Share for an aggregate consideration of $138,750.
On November 9, 1993, Mr. Scharf purchased an additional
25,000 Warrants through an open market purchase at $1.125 per
Warrant for an aggregate consideration of $28,125.
On January 24, 1994, Mr. Scharf purchased an additional
39,250 Units through an open market purchase at approximately
$6.58 per Unit for an aggregate consideration of $258,176.78.
Pursuant to Rule 13d-3 under the Securities and Exchange
Act of 1934, as amended (the "Exchange Act"), Mr. Scharf may be
deemed to be the beneficial owner of 100,000 Shares acquired by
the Michael J. Scharf 1987 Grantor Income Trust and 100,000
Shares acquired by the Scharf Family 1989 Trust. Each such
acquisition was made in connection with the Initial Issuance for
$4,000. In addition, Mr. Scharf may be deemed to be the
beneficial owner of 75,000 Warrants acquired by the Michael J.
Scharf 1987 Grantor Income Trust on November 9, 1993 through an
open market purchase at $1.125 per Warrant for an aggregate
consideration of $84,375. The Michael J. Scharf 1987 Grantor
Income Trust and the Scharf Family 1989 Trust are collectively
referred to as the "Scharf Trusts." Mr. Scharf is the trustee of
the Scharf Trusts.
The funds used to make the foregoing purchases were Mr.
Scharf's personal funds and the internal funds of each of the
Scharf Trusts, as the case may be.
As described in Item 5(a) hereof, in connection with his
serving as President and Chief Executive Officer of the Issuer,
on September 13, 1996, Mr. Scharf was granted options to purchase
an aggregate of 200,000 Shares at $5.50 per Share.
Item 4. Purpose of Transaction.
Mr. Scharf acquired the Shares for investment purposes and
in connection with his serving as Chairman of the Board,
President and Chief Executive Officer of the Issuer. Subject to
the matters referred to below (including Item 6 hereof), Mr.
Scharf may maintain his investment at its current level, acquire
additional securities of the Issuer, sell or dispose of, or
convert all or part of his investment. In any such case, the
decision by Mr. Scharf would depend upon a continuing evaluation
of the Issuer's business, prospects and financial condition, the
market for the securities, other business and investment
opportunities available to him, his positions at the Issuer and
its subsidiaries, general economic conditions, stock market and
money market conditions, availability of funds and other factors
and future developments that he may deem relevant from time to
time. Any acquisition or disposition of securities of the Issuer
by Mr. Scharf may be effected through open market or privately
negotiated transactions, gifts or otherwise.
Except to the extent set forth above, or in any other Item
hereof, and except in his capacity as Chairman of the Board,
President and Chief Executive Officer of the Issuer, which from
time to time may consider various transactions involving its
securities, Mr. Scharf does not have any present plans or
proposals that relate to or would result in any of the actions
required to be described in Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) As described in Item 3 hereof, Mr. Scharf directly
owns (including through IRA accounts) (i) 486,250 Shares and (ii)
437,500 Warrants, representing the right to receive, upon
exercise thereof at $5.50 per Warrant, an aggregare of 437,500
Shares. Pursuant to Rule 13d-3 under the Exchange Act, Mr.
Scharf may be deemed to be the beneficial owner of an additional
200,000 Shares and 75,000 Warrants owned in the aggregate by the
Scharf Trusts for which Mr. Scharf is the trustee. Accordingly,
Mr. Scharf may be deemed to be the beneficial owner of an
aggregate of 1,198,750 Shares, representing approximately 28.7% of
the sum of (i) 3,668,750 outstanding Shares (based upon
information contained in the Issuer's most recent report on Form
10-Q for the period ended June 30, 1996 filed by the Issuer with
the Securities and Exchange Commission) and (ii) 512,500 Shares
underlying the 512,500 Warrants owned by Mr. Scharf and the
Scharf Trusts.
On September 13, 1996, the Compensation Committee of the
Board of Directors of the Issuer (the "Compensation Committee")
granted to Mr. Scharf, in connection with his serving as
President and Chief Executive Officer of the Issuer, (i) an
incentive stock option (the "Incentive Stock Option") to purchase
an aggregate of 100,000 Shares and (ii) a non-qualified stock
option (the "Non-Qualified Stock Option," and, together with the
Incentive Stock Option, the "Options") to purchase an aggregate
of 100,000 Shares, each at $5.50 per Share. As described in Item
6 hereof, no portion of the Options will become exercisable until
September 13, 1997 except in the event of a "Change in Control"
of the Issuer (as defined in the Issuer's 1995 Stock Option
Plan). Accordingly, the Shares underlying the Options have not
been included for purposes of this Statement in calculating the
number of Shares beneficially owned by Mr. Scharf.
(b) Mr. Scharf has the sole power to vote and direct the
voting of and, subject to the terms of the Letter Agreements
(described below in Item 6), to dispose of and direct the
disposition of the securities referred to in Item 5(a) above.
(c) In accordance with the provisions of the Letter
Agreements, on August 13, 1993, Mr. Scharf entered into a Stock
Escrow Agreement (on behalf of himself and in his capacity as
trustee of the Scharf Trusts)(the "Escrow Agreement") with the
Issuer, Gilbert D. Scharf (Mr. Scharf's brother), Gerald L. Cohn,
Andrew R. Heyer and William H. Hyman (collectively with Mr.
Scharf and the Scharf Trusts, the "Initial Stockholders") and
Continental Stock Transfer and Trust Company (the "Escrow
Agent"), and pursuant to the terms thereof, deposited the 400,000
Shares owned by him and the Scharf Trusts prior to the IPO (the
"Escrow Shares") with the Escrow Agent. In accordance with the
terms of the Escrow Agreement, the Escrow Shares were released
from escrow on August 20, 1996.
The foregoing is merely a summary of certain provisions of
the Escrow Agreement and is qualified in its entirety by
reference to the full text thereof, a copy of which is attached
hereto as Exhibit 1 and incorporated herein by reference.
Other than as described in this Statement (including in Item
5(a) above), no other transactions in securities of the Issuer
were effected during the past sixty days by Mr. Scharf.
(d) No person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds
from the sale of, the Shares owned by Mr. Scharf.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings, or
Relationships with Respect to Securities of the Issuer
On May 26, 1993, Mr. Scharf entered into three agreements
(one on behalf of himself and the others as trustee of the Scharf
Trusts, the "Letter Agreements") with GKN Securities Corp., an
underwriter of the Shares sold in the IPO ("GKN"). Pursuant to
the Letter Agreements, Mr. Scharf agreed among other things, to
(i) vote all the Escrow Shares in accordance with the vote of the
majority in interest of all other public stockholders of the
Issuer with respect to any Business Combination (as defined in
the Letter Agreements); (ii) in the event that the Issuer failed
to consummate a Business Combination within a specified time
period and is required to liquidate, to waive his rights to
receive any liquidation distribution with respect to the Escrow
Shares; (iii) to first present to the Issuer for its
consideration any suitable opportunity for a Business
Combination; (iv) not to submit to the Issuer for consideration,
or vote for the approval of, any Business Combination which
involves a company affiliated with him; (v) not to accept a
finder's fee in the event he originates a Business Combination;
(vi) not to accept any compensation for services rendered to the
Issuer prior to the consummation of a Business Combination; (vii)
to enter into the Escrow Agreement; and (viii) to offer GKN, for
five years from August 13, 1993, a right of first refusal to
purchase for its account or to sell for his account any Shares
sold by him pursuant to Rule 144 under the Securities Act of
1933, as amended. The Acquisition described below constituted a
Business Combination, and, accordingly, the provisions of the
Letter Agreements described above in clauses (i) through (vi) are
no longer applicable.
The foregoing is merely a summary of certain provisions of
the Letter Agreements and is qualified in its entirety by
reference to the full text thereof, copies of which are attached
hereto as Exhibits 2,3 and 4, respectively, and incorporated
herein by reference.
As described in Item 5(c) above, on August 13, 1993, Mr.
Scharf entered into the Escrow Agreement, and, on August 20,
1996, the Escrow Shares were released from escrow.
On June 1, 1995, the Issuer entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement") with the stockholders
(the "Stockholders") of Niagara Cold Drawn Corp., a Delaware
corporation ("Niagara Cold Drawn"), pursuant to which, and
subject to certain conditions, the Issuer agreed to purchase,
and the Stockholders agreed to sell, all of the outstanding
shares of capital stock of Niagara Cold Drawn (the
"Acquisition"). In connection with the execution of the Stock
Purchase Agreement, Mr. Scharf executed a letter dated June 1,
1995 (the "Voting Letter") pursuant to which he agreed to vote at
a meeting of the Issuer's stockholders all Shares as to which he
had voting control (excluding the Escrow Shares) in favor of the
proposal to approve and adopt the Stock Purchase Agreement and
the Acquisition. On August 15, 1995, the Issuer's stockholders
approved the Stock Purchase Agreement, and on August 16, 1995,
the Acquisition was consummated.
The foregoing is merely a summary of the Voting Letter and
is qualified in its entirety by reference to the full text
thereof, a copy of which is attached hereto as Exhibit 5 and
incorporated herein by reference.
As described in Item 5(a) above, on September 13, 1996, the
Compensation Committee granted the Options to Mr. Scharf. The
option agreements evidencing the Options (the "Option
Agreements") provide that (i) such Options will become
exercisable as to 20% of the underlying Shares on each of the
next five anniversaries of the date of grant, provided that Mr.
Scharf continues to be employed by the Issuer or one of its
subsidiaries (collectively, the "Company") on such date and (ii)
notwithstanding the forgoing, such Options will become
exercisable in full upon a Change in Control of the Issuer (as
defined in the Issuer's 1995 Stock Option Plan). The Option
Agreements also provide that such Options will expire on the
earlier of (i) the tenth anniversary of the date of grant and
(ii) 90 days after the termination of Mr. Scharf's employment
with the Company for any reason.
The foregoing is merely a summary of certain provisions of
the Option Agreements, and is qualified in its entirety by
reference to the full text thereof, copies of which are attached
hereto as Exhibits 6 and 7, respectively, and incorporated herein
by reference.
Except as set forth herein, Mr. Scharf does not have any
contracts, arrangements, understandings or relationships with any
person with respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Stock Escrow Agreement, dated August 13, 1993, by
and among the Issuer, the Initial Stockholders and
the Escrow Agent (incorporated by reference to
Exhibit 1 to the Statement on Schedule 13D of
Michael J. Scharf, dated August 30, 1993).
Exhibit 2 - Letter Agreement, dated May 26, 1993, by and between
Michael J. Scharf and GKN Securities Corp
(incorporated by reference to Exhibit 2 to the
Statement on Schedule 13D of Michael J. Scharf,
dated August 30, 1993).
Exhibit 3 - Letter Agreement, dated May 26, 1993, by and between
the Michael J. Scharf 1987 Guarantor Income Trust
and GKN Securities Corp (incorporated by reference
to Exhibit 3 to the Statement on Schedule 13D of
Michael J. Scharf, dated August 30, 1993).
Exhibit 4 - Letter Agreement, dated May 26, 1993, by and between
the Scharf Family 1989 Trust and GKN Securities Corp
(incorporated by reference to Exhibit 4 to the
Statement on Schedule 13D of Michael J. Scharf,
dated August 30, 1993).
Exhibit 5 - Letter, dated June 1, 1995, from Michael Scharf to
all of the stockholders of Niagara Cold Drawn Corp.
(incorporated by reference to Exhibit 5 to Amendment
No. 4 to the Statement on Schedule 13D of Michael J.
Scharf, dated June 7, 1995).
Exhibit 6 - Stock Option Agreement, dated as of September 13,
1996, by and between the Issuer and Michael Scharf.
Exhibit 7 - Stock Option Agreement, dated as of September 13,
1996, by and between the Issuer and Michael Scharf.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this Statement is true, complete and correct.
Dated: October 10, 1996
/s/ Michael J. Scharf
Michael J. Scharf
Exhibit Index
Exhibit 1 - Stock Escrow Agreement, dated August 13, 1993, by
and among the Issuer, the Initial Stockholders and
the Escrow Agent (incorporated by reference to
Exhibit 1 to the Statement on Schedule 13D of
Michael J. Scharf, dated August 30, 1993).
Exhibit 2 - Letter Agreement, dated May 26, 1993, by and between
Michael J. Scharf and GKN Securities Corp
(incorporated by reference to Exhibit 2 to the
Statement on Schedule 13D of Michael J. Scharf,
dated August 30, 1993).
Exhibit 3 - Letter Agreement, dated May 26, 1993, by and between
the Michael J. Scharf 1987 Guarantor Income Trust
and GKN Securities Corp (incorporated by reference
to Exhibit 3 to the Statement on Schedule 13D of
Michael J. Scharf, dated August 30, 1993).
Exhibit 4 - Letter Agreement, dated May 26, 1993, by and between
the Scharf Family 1989 Trust and GKN Securities Corp
(incorporated by reference to Exhibit 4 to the
Statement on Schedule 13D of Michael J. Scharf,
dated August 30, 1993).
Exhibit 5 - Letter, dated June 1, 1995, from Michael Scharf to
all of the stockholders of Niagara Cold Drawn Corp.
(incorporated by reference to Exhibit 5 to Amendment
No. 4 to the Statement on Schedule 13D of Michael J.
Scharf, dated June 7, 1995).
Exhibit 6 - Stock Option Agreement, dated as of September 13,
1996, by and between the Issuer and Michael Scharf.
Exhibit 7 - Stock Option Agreement, dated as of September 13,
1996, by and between the Issuer and Michael Scharf.
STOCK OPTION AGREEMENT
AGREEMENT made as of September 13, 1996, by and
between Niagara Corporation (formerly International
Metals Acquisition Corporation), a Delaware corporation
("Niagara"), and Michael Scharf (the "Executive").
WHEREAS, on August 15, 1995, Niagara's Board of
Directors (the "Board") approved the International Metals
Acquisition Corporation 1995 Stock Option Plan (the
"Plan");
WHEREAS, on May 16, 1996, Niagara's
stockholders approved the Plan; and
WHEREAS, the Compensation Committee of the
Board desires to grant to the Executive an Incentive
Stock Option under the Plan to acquire an aggregate of
100,000 shares of Niagara common stock, par value $.001
per share (the "Stock"), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as
follows:
1. Definitions. Capitalized terms not
otherwise defined herein shall have the meanings set
forth in the Plan.
2. Grant of Option. The Executive is hereby
granted an Incentive Stock Option (the "Option") to
purchase an aggregate of 100,000 shares of Stock,
pursuant to the terms of this Agreement and the
provisions of the Plan.
3. Option Price. The exercise price of the
Option shall be $5.50 per share of Stock issuable
pursuant to the exercise thereof.
4. Conditions to Exercisability. (a) The
Option shall become exercisable as to twenty percent
(20%) of the shares of Stock covered by the Option on
each of the next five anniversaries of this Agreement,
provided that the Executive continues to be employed by
Niagara or one of its subsidiaries (collectively, the
"Company") on such date.
(b) Notwithstanding the foregoing, the
Option shall become exercisable in full upon the
occurrence of a Change in Control of Niagara (as defined
in the Plan).
5. Period of Option. This Option shall expire
on the earliest to occur of:
(a) the tenth anniversary of the date of
this Agreement; and
(b) 90 days after the termination of the
Executive's employment with the Company for any reason.
6. Exercise of Option. (a) The Option shall
be exercised in the following manner: the Executive shall
deliver to Niagara written notice specifying the number
of shares of Stock which he elects to purchase. The
Executive must include with such notice full payment of
the exercise price for the Stock being purchased pursuant
to such notice. Payment of the exercise price must be
made in cash or in shares of Stock having a Fair Market
Value equal to such Option price or in a combination of
cash and Stock. In lieu of full payment of the exercise
price in cash, upon request of the Executive, Niagara
may, in its discretion, allow the Executive to exercise
the Option or a portion thereof through a cashless
exercise procedure.
(b) Upon the disposition of shares of
Stock acquired pursuant to the exercise of the Option,
Niagara shall have the right to require the payment of
the amount of any taxes which are required by law to be
withheld with respect to such disposition.
(c) The Executive will not be deemed to
be a holder of any shares of Stock pursuant to exercise
of the Option until the date of the issuance of a stock
certificate to him for such shares and until such shares
are paid for in full.
7. Entire Agreement. This Agreement and the
Plan contain all the understandings between the parties
hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral
or in writing, previously entered into by them with
respect thereto. The Executive represents that, in
executing this Agreement, he does not rely and has not
relied upon any representation or statement not set forth
therein made by the Company with regard to the subject
matter, bases or effect of this Agreement or otherwise.
8. Amendment or Modification, Waiver. No
provision of this Agreement may be amended or waived
unless such amendment or waiver is agreed to in writing,
signed by the Executive and by a duly authorized director
or officer of Niagara. No waiver by any party hereto of
any breach by another party hereto of any condition or
provision of this Agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same time, any prior time
or any subsequent time.
9. Notices. Any notice to be given hereunder
shall be in writing and shall be deemed given when
delivered personally, sent by courier or telecopy or
registered or certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at
the address indicated below or to such other address as
such party may subsequently give notice of hereunder in
writing:
To the Executive at:
P.O. Box 1592
Ponte Vedra, Florida 32004
To Niagara at:
Niagara Corporation
667 Madison Avenue
New York, New York 10021
With a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attn: Milton G. Strom
Telecopy: (212) 735-2000
Any notice delivered personally or by courier
under this Section 9 shall be deemed given on the date
delivered and any notice sent by telecopy or registered
or certified mail, postage prepaid, return receipt
requested, shall be deemed given on the date telecopied
or mailed.
10. Severability. If any provision of this
Agreement or the application of any such provision to any
party or circumstances shall be determined by any court
of competent jurisdiction to be invalid and unenforceable
to any extent, the remainder of this Agreement or the
application of such provision to such person or
circumstances other than those to which it is so
determined to be invalid and unenforceable, shall not be
affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent
permitted by law.
11. Survival. The respective rights and
obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to
the intended preservation of such rights and obligations.
12. Governing Law. This agreement will be
governed by and construed in accordance with the laws of
the State of Delaware, without regard to its conflicts of
laws principles.
13. Headings. All descriptive headings of
sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading
of any section or paragraph.
14. Construction. This Agreement is made
under and subject to the provisions of the Plan, and all
of the provisions of the Plan are hereby incorporated
herein as provisions of this Agreement. If there is a
conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan will
govern. By signing this Agreement, the Executive
confirms that he has received a copy of the Plan and has
had an opportunity to review the contents thereof.
15. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above
written.
NIAGARA CORPORATION
By:/s/ Gilbert D. Scharf
Gilbert D. Scharf
Vice President
/s/ Michael Scharf
Michael Scharf
STOCK OPTION AGREEMENT
AGREEMENT made as of September 13, 1996, by and
between Niagara Corporation (formerly International
Metals Acquisition Corporation), a Delaware corporation
("Niagara"), and Michael Scharf (the "Executive").
WHEREAS, on August 15, 1995, Niagara's Board of
Directors (the "Board") approved the International Metals
Acquisition Corporation 1995 Stock Option Plan (the
"Plan");
WHEREAS, on May 16, 1996, Niagara's
stockholders approved the Plan; and
WHEREAS, the Compensation Committee of the
Board desires to grant to the Executive a Non-Qualified
Stock Option under the Plan to acquire an aggregate of
100,000 shares of Niagara common stock, par value $.001
per share (the "Stock"), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as
follows:
1. Definitions. Capitalized terms not
otherwise defined herein shall have the meanings set
forth in the Plan.
2. Grant of Option. The Executive is hereby
granted a Non-Qualified Stock Option (the "Option") to
purchase an aggregate of 100,000 shares of Stock,
pursuant to the terms of this Agreement and the
provisions of the Plan.
3. Option Price. The exercise price of the
Option shall be $5.50 per share of Stock issuable
pursuant to the exercise thereof.
4. Conditions to Exercisability. (a) The
Option shall become exercisable as to twenty percent
(20%) of the shares of Stock covered by the Option on
each of the next five anniversaries of this Agreement,
provided that the Executive continues to be employed by
Niagara or one of its subsidiaries (collectively, the
"Company") on such date.
(b) Notwithstanding the foregoing, the
Option shall become exercisable in full upon the
occurrence of a Change in Control of Niagara (as defined
in the Plan).
5. Period of Option. This Option shall expire
on the earliest to occur of:
(a) the tenth anniversary of the date of
this Agreement; and
(b) 90 days after the termination of the
Executive's employment with the Company for any reason.
6. Exercise of Option. (a) The Option shall
be exercised in the following manner: the Executive shall
deliver to Niagara written notice specifying the number
of shares of Stock which he elects to purchase. The
Executive must include with such notice full payment of
the exercise price for the Stock being purchased pursuant
to such notice. Payment of the exercise price must be
made in cash or in shares of Stock having a Fair Market
Value equal to such Option price or in a combination of
cash and Stock. In lieu of full payment of the exercise
price in cash, upon request of the Executive, Niagara
may, in its discretion, allow the Executive to exercise
the Option or a portion thereof through a cashless
exercise procedure.
(b) Upon the disposition of shares of
Stock acquired pursuant to the exercise of the Option,
Niagara shall have the right to require the payment of
the amount of any taxes which are required by law to be
withheld with respect to such disposition.
(c) The Executive will not be deemed to
be a holder of any shares of Stock pursuant to exercise
of the Option until the date of the issuance of a stock
certificate to him for such shares and until such shares
are paid for in full.
7. Entire Agreement. This Agreement and the
Plan contain all the understandings between the parties
hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral
or in writing, previously entered into by them with
respect thereto. The Executive represents that, in
executing this Agreement, he does not rely and has not
relied upon any representation or statement not set forth
therein made by the Company with regard to the subject
matter, bases or effect of this Agreement or otherwise.
8. Amendment or Modification, Waiver. No
provision of this Agreement may be amended or waived
unless such amendment or waiver is agreed to in writing,
signed by the Executive and by a duly authorized director
or officer of Niagara. No waiver by any party hereto of
any breach by another party hereto of any condition or
provision of this Agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same time, any prior time
or any subsequent time.
9. Notices. Any notice to be given hereunder
shall be in writing and shall be deemed given when
delivered personally, sent by courier or telecopy or
registered or certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at
the address indicated below or to such other address as
such party may subsequently give notice of hereunder in
writing:
To the Executive at:
P.O. Box 1592
Ponte Vedra, Florida 32004
To Niagara at:
Niagara Corporation
667 Madison Avenue
New York, New York 10021
With a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attn: Milton G. Strom
Telecopy: (212) 735-2000
Any notice delivered personally or by courier
under this Section 9 shall be deemed given on the date
delivered and any notice sent by telecopy or registered
or certified mail, postage prepaid, return receipt
requested, shall be deemed given on the date telecopied
or mailed.
10. Severability. If any provision of this
Agreement or the application of any such provision to any
party or circumstances shall be determined by any court
of competent jurisdiction to be invalid and unenforceable
to any extent, the remainder of this Agreement or the
application of such provision to such person or
circumstances other than those to which it is so
determined to be invalid and unenforceable, shall not be
affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent
permitted by law.
11. Survival. The respective rights and
obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to
the intended preservation of such rights and obligations.
12. Governing Law. This agreement will be
governed by and construed in accordance with the laws of
the State of Delaware, without regard to its conflicts of
laws principles.
13. Headings. All descriptive headings of
sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading
of any section or paragraph.
14. Construction. This Agreement is made
under and subject to the provisions of the Plan, and all
of the provisions of the Plan are hereby incorporated
herein as provisions of this Agreement. If there is a
conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan will
govern. By signing this Agreement, the Executive
confirms that he has received a copy of the Plan and has
had an opportunity to review the contents thereof.
15. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above
written.
NIAGARA CORPORATION
By:/s/ Gilbert D. Scharf
Gilbert D. Scharf
Vice President
/s/ Michael Scharf
Michael Scharf
