AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 27, 1997.
REGISTRATION NO. 333-35691
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
NIAGARA CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 3316 59-3182820
(State or other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification
Incorporation or Classification No.)
Organization) Code Number)
667 MADISON AVENUE
NEW YORK, NEW YORK 10021
(212) 317-1000
(Address , including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
----------------------
MICHAEL J. SCHARF
CHAIRMAN OF THE BOARD,
CHIEF EXECUTIVE OFFICER AND PRESIDENT
NIAGARA CORPORATION
667 MADISON AVENUE
NEW YORK, NEW YORK 10021
(212) 317-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
COPY TO:
ROBERT M. CHILSTROM, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES
EFFECTIVE.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box: |X|
----------------------
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 SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
==========================================================================
[FLAG]
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED OCTOBER 27, 1997
285,715 SHARES OF COMMON STOCK
NIAGARA CORPORATION
This Prospectus relates to the offer and sale by certain selling
stockholders (the "Selling Stockholders"), from time to time, of 285,715
shares of Common Stock, par value $0.01 per share (the "Offered Shares"),
of Niagara Corporation (formerly International Metals Acquisition
Corporation), a Delaware corporation ("Niagara"), issued in connection
with the financing of Niagara's acquisition of LaSalle Steel Company on
April 18, 1997.
Pursuant to this Prospectus, the Offered Shares may be sold by the
Selling Stockholders, from time to time while the Registration Statement
to which this Prospectus relates is effective, on the open market, on the
Nasdaq National Market, in privately negotiated transactions, in an
underwritten offering, or through a combination of such methods, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Offered Shares are
intended to be sold through one or more broker-dealers or directly to
purchasers. Such broker-dealers may receive compensation in the form of
commissions, discounts or concessions from the Selling Stockholders
and/or purchasers of the Offered Shares for whom such broker-dealers may
act as agent, or to whom they may sell as principal, or both (which
compensation as to a particular broker-dealer may be in excess of
customary concessions). The Selling Stockholders and any broker-dealers
who act in connection with the sale of Offered Shares hereunder may be
deemed to be "underwriters" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and any commissions received by
them and proceeds of any resale of the Offered Shares may be deemed to be
underwriting discounts and commissions under the Securities Act. See
"Selling Shareholders" and "Plan of Distribution."
Niagara's Common Stock is quoted on the Nasdaq National Market
under the symbol "NIAG." On October 24, 1997, the per share closing price
of the Common Stock as reported on the Nasdaq National Market was $10.25.
None of the proceeds from the sale of the Offered Shares by the
Selling Stockholders will be received by Niagara. Niagara will pay
substantially all of the expenses with respect to the offering and sale
of the Offered Shares to the public, including the costs associated with
registering the Offered Shares under the Securities Act. Normal
underwriting commissions and brokers fees, however, as well as any
applicable transfer taxes and other selling expenses, are payable
individually by the Selling Stockholders.
INVESTORS SHOULD CAREFULLY CONSIDER CERTAIN RISK FACTORS RELATING TO
NIAGARA AND AN INVESTMENT IN THE COMMON STOCK. SEE "RISK FACTORS"
BEGINNING ON PAGE 8.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1997.
AVAILABLE INFORMATION
Niagara is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information filed
by Niagara can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's Regional Offices at Seven
World Trade Center, Suite 1300, New York, New York 10048 and Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material also can be obtained from the Public
Reference Section of the Commission, Washington, D.C. 20549 at prescribed
rates. In addition, material filed by Niagara can be inspected at the
offices of The Nasdaq Stock Market, Reports Section, 1735 K Street N.W.,
Washington, D.C. 20006.
Niagara has filed with the Commission a Registration Statement on
Form S-3 (together with any amendments or supplements thereto, the
"Registration Statement") under the Securities Act with respect to the
securities to be issued under this Prospectus. This Prospectus omits
certain of the information contained in the Registration Statement and
the exhibits and schedules thereto in accordance with the rules and
regulations of the Commission. For further information regarding Niagara
and the shares offered hereby, reference is made to the Registration
Statement and the exhibits and schedules filed therewith, which may be
inspected without charge at the office of the Commission at 450 Fifth
Street N.W., Washington, D.C. 20549 and copies of which may be obtained
from the Commission at prescribed rates. Statements contained in this
Prospectus as to the contents of any contract or other document referred
to herein are not necessarily complete, and in each instance reference is
made to the copy of such contract or other document filed as an exhibit
to the Registration Statement, each such statement being qualified in all
respects by such reference.
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR"
PROVISIONS OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
The Private Securities Litigation Reform Act of 1995 provides a new
"safe harbor" for certain forward-looking statements. The factors
discussed under "Risk Factors" below, among others, could cause actual
results to differ materially from those contained in forward-looking
statements made in this Prospectus, including, without limitation, in
"The Company," in future filings by the Company with the Commission, in
the Company's press releases and in oral statements made by authorized
officers of the Company. When used in this Prospectus, the words
"estimate," "project," "anticipate," "expect," "intend," "believe" and
other similar expressions are intended to identify forward-looking
statements.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, or portions of documents, previously filed
by Niagara with the Commission are incorporated by reference in this
Prospectus:
1. Niagara's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (as amended on October 27, 1997).
2. Niagara's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
3. Niagara's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997 (as amended on October 27, 1997).
4. Niagara's Current Reports on Form 8-K, dated January 29, 1997
and May 2, 1997 (as amended on July 2, 1997 and October 27, 1997).
5. The description of the Common Stock contained in the Niagara's
Registration Statement on Form 8-A, dated August 10, 1993.
All documents subsequently filed by Niagara pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of
the offering of the shares hereunder shall be deemed to be incorporated
herein by reference and shall be a part hereof from the date of the
filing of such documents. Any statements contained in a document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or replaced for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or replaces such statement. Any such statement so
modified or replaced shall not be deemed, except as so modified or
replaced, to constitute a part of this Prospectus.
Niagara will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of the documents incorporated by reference
herein, other than exhibits to such documents not specifically
incorporated by reference. Such requests should be directed to Niagara
Corporation, 667 Madison Avenue, New York, New York 10021, Attention:
Secretary (telephone: (212) 317-1000).
ADDRESS AND TELEPHONE NUMBER
The mailing address and telephone number of Niagara's principal
executive offices are as follows:
Niagara Corporation
667 Madison Avenue
New York, New York 10021
Telephone: (212) 317-1000.
THE COMPANY
CORPORATE HISTORY
Niagara was organized on April 27, 1993 with the objective of
acquiring an operating business engaged in the metals processing and
distribution industry or metals-related manufacturing industry.
On August 16, 1995, Niagara purchased all outstanding shares of
capital stock of Niagara Cold Drawn Corp. ("Niagara Cold Drawn"), a
leading manufacturer of cold drawn steel bars in the northeast and
southeast regions of the United States, for $10,744,045 in cash.
On January 31, 1996, Niagara Cold Drawn purchased all outstanding
shares of capital stock of Southwest Steel Company, Inc. ("Southwest"), a
manufacturer of cold drawn steel bars servicing the southwest region of
the United States. As consideration for such shares, Niagara Cold Drawn
paid $1,920,000 in cash and $1,156,773 principal amount of Niagara Cold
Drawn promissory notes guaranteed by Niagara. In connection with this
acquisition, Niagara Cold Drawn discharged $8,518,691 of Southwest
indebtedness and Niagara guaranteed $898,000 of Southwest indebtedness.
On May 8, 1996, pursuant to the provisions of the Southwest stock
purchase agreement, Niagara Cold Drawn asserted indemnification claims in
the aggregate amount of approximately $1,300,000 against the former
Southwest stockholders. On May 22, 1996, Niagara Cold Drawn brought an
action against such stockholders relating to these claims. The defendants
have denied liability in their answer.
During 1996, Southwest completed construction of a new plant
outside Dallas, Texas and closed existing facilities in Tulsa, Oklahoma.
On November 1, 1996, Southwest was merged into Niagara Cold Drawn.
On April 18, 1997, Niagara Cold Drawn purchased from Quanex
Corporation ("Quanex") all outstanding shares of capital stock of LaSalle
Steel Company ("LaSalle," and, collectively with Niagara and Niagara Cold
Drawn, the "Company"), one of the largest domestic producers of cold
drawn steel. In consideration for the sale of such shares (i) Niagara
Cold Drawn paid Quanex $65,500,000 in cash at the closing and (ii) Quanex
or Niagara Cold Drawn, as the case may be, will pay the other an amount
based on changes in LaSalle's stockholder's equity between October 31,
1996 and March 31, 1997, as reflected on LaSalle's balance sheets as of
such dates. The LaSalle stock purchase agreement also provides that
Quanex or Niagara Cold Drawn, as the case may be, pay the other an amount
based on cash activity in the intercompany account between Quanex and
LaSalle from April 1, 1997 through April 18, 1997. On July 2, 1997,
Niagara and Niagara Cold Drawn submitted to Quanex a statement disputing
the amounts reflected on the balance sheet of LaSalle as of March 31,
1997 for inventory reserves, doubtful account allowances and certain
accrued expenses and reserves, in the aggregate amount of $2,136,584. Any
dispute between Niagara and Niagara Cold Drawn and Quanex concerning such
financial statement is subject to binding arbitration by an independent
accounting firm.
The acquisition of LaSalle and the refinancing of existing Niagara
Cold Drawn indebtedness was financed pursuant to (i) a revolving credit
and term loan agreement with Niagara Cold Drawn and LaSalle (guaranteed
by Niagara), providing for a $50,000,000 three-year revolving credit
facility and a $40,000,000 term loan and (ii) the issuance and sale of
$20,000,000 aggregate principal amount of 12.5% senior subordinated notes
of Niagara Cold Drawn due April 18, 2005 (the "Subordinated Notes"). In
connection with this financing, the purchasers of the Subordinated Notes
were issued the 285,715 shares of Common Stock offered hereunder.
PRODUCTS
Following the acquisition of LaSalle, Niagara, through its
wholly-owned subsidiaries, became the largest independent producer of
cold drawn steel bars in the United States. The manufacture of these bars
involves several steps. Hot-rolled steel bars are cleaned of mill scale
by a process that involves shotblasting the surface of the bars with
hardened steel shot. After shotblasting, the bars are mechanically drawn,
or pulled, through a tungsten carbide die containing an orifice
one-sixteenth of an inch smaller in cross-section than the size of the
hot-rolled bar. Drawing the hot-rolled steel bar in this manner elongates
the bar and creates a quality micro-finished surface. The bars are then
cut to length and straightened. As an additional step, bars may be turned
and/or ground to very close tolerance levels. This process produces steel
bars with (i) a smooth and shiny surface, (ii) uniform shape, with close
size tolerance, (iii) enhanced strength characteristics and (iv) improved
machinability. These characteristics are essential for many industrial
applications.
Niagara Cold Drawn manufactures round bars ("Rounds"), ranging from
one-quarter inch to six inches in diameter, and rectangular, square and
hexagonal bars ("Shapes") in a variety of sizes, the majority of which
are drawn in sizes one-quarter inch to 6 inches thick and up to 15 inches
wide. The bars are produced in lengths from 10 to 20 feet, with most
being 10 to 12 feet in length. Niagara Cold Drawn's products include (i)
cold drawn bars which are used in machining applications, automotive and
appliance shafts, screw machine parts and machinery guides, (ii) turned,
ground and polished bars which are used in precision shafting and (iii)
drawn, ground and polished bars which are used in chrome-plated
hydraulic cylinder shafts. Niagara Cold Drawn also offers turning and
polishing services (on bars not owned by the Company) which are used in
induction hardened parts and spline shafts.
LaSalle is a technological leader in the development of specialized
cold drawn steel products, having obtained numerous foreign and domestic
patents throughout its history. LaSalle pioneered the large drawbenches
commonly used in cold finishing today and developed the principle of
stress-relieving cold finished steel bars. LaSalle employs a number of
advanced processing techniques in the manufacture of value-added steel
bars including thermal treatment and chrome plating. In addition to cold
drawn bars, LaSalle's products include (i) custom cut bars shipped on a
"just-in-time" basis which are used in steering columns and shock
absorbers, (ii) stress relieved bars which are used in high strength
shafting, gears and drive mechanisms, (iii) quench and tempered bars
which are used in high strength bolting and high impact rod cylinders and
(iv) chrome plated bars which are used in hydraulic and pneumatic
cylinders.
CUSTOMERS
The Company sells its products primarily to steel service centers,
which accounted for approximately 75% of sales for the six months ended
June 30, 1997, with the balance of sales to original equipment
manufacturers ("OEMs") and the screw machine industry. Steel service
centers purchase and warehouse large quantities of standardized steel
products which are then sold directly to OEMs. OEMs use cold drawn steel
bars in a wide range of products. The Company concentrates its sales
efforts on steel service centers, which purchase relatively standardized
products on a regular basis. By focusing on this market, the Company
attempts to minimize the risk of holding obsolete inventory.
The Company has approximately 650 active customers in the United
States and Canada and is not dependent upon any one geographical market.
For the six months ended June 30, 1997, the Company's 10 largest
customers (by tons shipped) represented approximately 65% of sales, and
its 3 largest customers, Alro Steel Corporation, A.M. Castle & Co. and
Earle M. Jorgensen Co., represented approximately 49% of sales. The loss
of any of the three largest customers would have a material adverse
effect on sales.
MARKETING
The Company markets its products through salaried in-house sales
personnel and sales representatives compensated on a commission-only
basis. Such sales representatives and in-house personnel cover
approximately 90% of the United States and certain regions of Canada.
STRATEGY
The Company's business strategy focuses on improving product
quality and customer service and on maintaining strict cost controls.
With the acquisition of LaSalle, the Company can offer a full product
line on a national level.
The Company seeks to obtain a competitive advantage through its
ability to supply customers on a timely basis with an extensive range of
sizes and Shapes of high quality cold drawn steel bars. In this regard,
the Company maintains finished goods inventories of the most commonly
ordered sizes and Shapes.
In order to improve profitability, the Company has chosen to
specialize on higher margin and value-added products. In addition, the
Company is implementing a system of inventory management to supply more
efficiently multiple locations of steel service center companies.
RAW MATERIALS
The Company purchases raw materials, which consists of hot-rolled
steel bars, from integrated steel mills and mini-mills. The cost of
hot-rolled steel bars purchased from mini-mills is primarily dependent on
the price of scrap steel. Since the price of scrap steel is subject to
substantial price fluctuations, the price of hot-rolled steel bars is
subject to similar fluctuations. The Company obtains raw material from
both domestic and foreign suppliers and is generally able to pass along
to customers increases in the price of hot-rolled steel.
COMPETITION
The cold drawn steel bar market is highly competitive, based on
price, product quality and customer service. The Company's strategy is to
seek to remain competitive on price and surpass its competitors in
product quality and customer service. Its principal competitors are
domestic companies, including both integrated and independent cold drawn
steel bar producers.
The Company believes that the ability to offer a full line of cold
finished bar products and the proximity of facilities to major steel
service center markets are key competitive factors in the industry. Close
geographic proximity results in reduced freight costs and faster delivery
of customer orders. The cold drawn steel industry allocates freight costs
among suppliers and customers based on an "equalizing" system whereby the
customer pays freight cost equal to that of the nearest supplier. The
Company's five manufacturing facilities (located in Buffalo, New York;
Chattanooga, Tennessee; Midlothian, Texas; and Hammond and Griffith,
Indiana) provide close proximity to many customers.
The Company competes in a narrow segment of the steel industry, but
its business is affected by conditions within the broader steel industry
and in particular the automotive and machine tool industries.
Consequently, a significant downturn in the broader steel industry (which
generally results from a downturn in the U.S. economy as a whole) or the
automotive or machine tool industries may result in a similar downturn in
the cold drawn steel bar market and have an adverse effect on the
Company.
EMPLOYEES
As of August 31, 1997, the Company employed approximately 650
persons. It believes that its relationship with its employees is good.
All of LaSalle's 279 hourly employees at its Hammond, Indiana facility as
of such date were covered by a collective bargaining agreement with The
Progressive Steelworker's of Hammond, Inc. which expires on May 17, 1998.
All of LaSalle's 20 hourly employees at its Griffith, Indiana facility as
of such date were covered by a collective bargaining agreement with the
United Steel Workers of America and its local affiliate which expires on
February 19, 2000.
ENVIRONMENTAL MATTERS
Under applicable state and federal laws, including the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), Niagara Cold Drawn and LaSalle may be
responsible for costs required to remove or remediate previously
disposed wastes or hazardous substances at locations owned or operated by
them or at locations owned or operated by third parties where they, or a
company from which they acquired assets, arranged for the disposal of
such materials. Claims for such costs have been made against LaSalle with
respect to three such third-party sites. Management believes that, in two
cases, the volumes of waste allegedly attributable to LaSalle and the
share of costs for which it may be liable are de minimis. In the third
case, LaSalle has received an insurance settlement in an amount that
exceeds the financial contribution it has been required to make to date.
Because liability under CERCLA and analogous state laws is generally
joint and several and because further remediation work may be required at
these sites, LaSalle may be required to contribute additional funds.
However, based on its volumetric share of wastes disposed and the
participation of other potentially liable parties, management does not
believe that LaSalle's share of additional costs will have a material
adverse effect on the Company's business or financial position.
RISK FACTORS
Prospective purchasers of the Common Stock offered hereby should carefully
consider the following risk factors, in addition to other information
contained in or incorporated by reference in this Prospectus.
CYCLICALITY
The Company's products are used in the automotive, machine tool,
construction and manufacturing industries, among others. As a result,
demand for such products is closely tied to the economic cycles that
drive these businesses. For this reason, the Company's financial
performance has been, and will likely continue to be, cyclical in nature.
COMPETITION FROM LARGER, VERTICALLY INTEGRATED COMPETITORS
The Company's three largest competitors, Republic Engineered
Steels, Inc., Nucor Corporation, and Bar Technologies, Inc., are
vertically integrated with both hot rolling and cold drawing
capabilities. This integration could result in lower raw material costs
to these competitors.
EXPIRATION OF UNION CONTRACTS
All of LaSalle's 279 hourly employees (as of August 31, 1997) at
its Hammond, Indiana facility are covered by a collective bargaining
agreement with The Progressive Steelworker's of Hammond, Inc. which
expires on May 17, 1998. All of LaSalle's 20 hourly employees (as of
August 31, 1997) at its Griffith, Indiana facility are covered by a
collective bargaining agreement with the United SteelWorkers Union and
its local affiliate which expires on February 19, 2000. There is no
assurance that the Company will be able to negotiate new agreements on
favorable economic terms.
ENVIRONMENTAL MATTERS
As manufacturers of cold finished steel, Niagara Cold Drawn and
LaSalle are subject to extensive regulations concerning the discharge of
materials into the environment and the remediation of environmental
contamination at their plant sites or at offsite disposal locations.
While the costs of complying with current regulations and the Company's
share of remediation expenses at locations where Niagara Cold Drawn or
LaSalle has been identified as a responsible party have not adversely
affected the Company in any material respect, there is no assurance that
substantial additional costs will not be required as a result of more
stringent regulations, an increase in the Company's share of remediation
costs at those locations where Niagara Cold Drawn or LaSalle have been
identified as a responsible party, or the discovery of additional
contamination at the Company's facilities or at other locations for which
the Company would be responsible.
HIGH DEGREE OF LEVERAGE
The capitalization of the Company at June 30, 1997 includes $85.5
million of indebtedness, representing a ratio of debt to capitalization
of 82.5%. This high degree of leverage poses a risk that, in a
significant economic downturn, the Company may not generate enough cash
to service debt and adequately fund operations. Under certain
circumstances, the Company is required to use the net proceeds from the
exercise of its outstanding warrants to prepay certain indebtedness at a
premium.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of a substantial number of shares of Common Stock in the
public market could adversely affect the market price for the Common
Stock. In addition to 3,954,465 shares of Common Stock, Niagara currently
has outstanding 6,050,000 warrants which are exercisable for an equal
number of shares of Common Stock at $5.50 per share (subject to
anti-dilution adjustments). The Company may in the future cause the
Common Stock issuable pursuant to stock options granted to employees and
directors of the Company to be registered under the Securities Act.
ANTI-TAKEOVER EFFECT OF POTENTIAL ISSUANCES OF PREFERRED STOCK
Niagara's Restated Certificate of Incorporation authorizes
Niagara's Board of Directors to issue, without stockholder approval, up
to 500,000 shares of Preferred Stock, par value $.001 per share, with
such voting powers, designations, preferences, rights, qualifications,
limitations and restrictions as may be permitted under the General
Corporation Law of the State of Delaware. Niagara has no current
intention to issue any of such shares. This provision may be deemed to be
"anti-takeover" in nature in that it may deter, discourage or make more
difficult the acquisition of control of Niagara by another entity or
person through a tender offer, merger, proxy contest or other transaction
or series of transactions.
NO ANTICIPATED DIVIDENDS
The agreements entered into by Niagara, Niagara Cold Drawn and
LaSalle in connection with the financing of Niagara Cold Drawn's
acquisition of LaSalle on April 18, 1997 and the refinancing of existing
Niagara Cold Drawn indebtedness carry restrictions on, among other
things, the payment of dividends. As a result, Niagara's Board of
Directors does not anticipate authorizing the payment of any dividends on
the Common Stock in the foreseeable future.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the resale of
the Offered Shares by the Selling Stockholders.
THE SELLING STOCKHOLDERS
The following table sets forth the names of the Selling
Stockholders, the number of shares of Common Stock beneficially owned by
each such Selling Stockholder as of October 24, 1997, the number of
Offered Shares which may be offered for sale pursuant to this Prospectus
by each such Selling Stockholder, and the resulting amount and percentage
of the outstanding Common Stock if all Offered Shares which are
beneficially owned by such persons are sold. None of the Selling
Stockholders has, or within the past three years has had, any position,
office or other material relationship with Niagara or any of its
predecessors or affiliates, except as noted in the footnotes to the
following table. The Offered Shares may be offered from time to time by
the Selling Stockholders named below. However, such Selling Stockholders
are under no obligation to sell all or any portion of such Offered
Shares, nor are the Selling Stockholders obligated to sell any such
Offered Shares immediately under this Prospectus. All information with
respect to share ownership has been furnished by the Selling
Stockholders. Because the Selling Stockholders may sell all or part of
their Offered Shares, no estimate can be given as to the number of Common
Shares that will be held by any Selling Stockholder upon termination of
any offering made hereby. The Selling Stockholders identified below may
have sold, transferred or otherwise disposed of all or a portion of their
Offered Shares since the date of this Prospectus in transactions exempt
from the registration requirements of the Securities Act.
<TABLE>
<CAPTION>
Common Shares
Beneficially Owned
After Offering(1)
--------------------
Shares of Common
Stock Beneficially
Name of Selling Owned Prior to Common Stock Percent Percent of
Stockholder Offering Offered Hereby Outstanding Number Outstanding
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
The Prudential Insurance 121,429 121,429 3.07% 0 0
Company of America(1)
The Equitable Life Assurance 121,429 121,429 3.07% 0 0
Society of the United States(1)
United States Fidelity and 42,857 42,857 1.08% 0 0
Guaranty Company(1)
</TABLE>
(1) In connection with the acquisition of LaSalle and the refinancing
of existing Niagara Cold Drawn indebtedness, Niagara, Niagara Cold
Drawn and LaSalle entered into separate Note and Stock Purchase
Agreements with The Prudential Insurance Company of America, The
Equitable Life Assurance Society of the United States and United
States Fidelity and Guaranty Company (collectively, the "Note and
Stock Purchase Agreements"), providing for the issuance and sale of
the Subordinated Notes and the 285,715 shares of Common Stock
offered hereunder. In connection with the execution of the Note and
Stock Purchase Agreements, Niagara, Niagara Cold Drawn, Michael J.
Scharf and each of the purchasers of the Common Stock issued
pursuant to the Note and Stock Purchase Agreements entered into a
Stockholders Agreement, dated as of April 18, 1997 (the
"Stockholders Agreement") providing for, among other things,
registration rights pursuant to which the Common Stock offered
hereby is being registered.
PLAN OF DISTRIBUTION
The Offered Shares are being offered on behalf of the Selling
Stockholders, and the Company will not receive any proceeds from the
Offering. The Offered Shares may be sold or distributed from time to time
by the Selling Stockholders, or by pledgees, donees or transferees of, or
other successors in interest to, the Selling Stockholders, directly to
one or more purchasers (including pledgees) or through brokers, dealers
or underwriters who may act solely as agents or may acquire Offered
Shares as principals, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices, at negotiated prices, or
at fixed prices, which may be changed. The distribution of the Offered
Shares may be effected in one or more of the following methods: (i)
ordinary brokerage transactions, which may include long or short sales;
(ii) transactions involving cross or block trades on the Nasdaq National
Market; (iii) purchases by brokers, dealers or underwriters as principal
and resale by such purchasers for their own accounts pursuant to this
Prospectus; (iv) "at the market" to or through market makers or into an
existing market for the Common Stock; (v) in other ways not involving
market makers or established trading markets, including direct sales to
purchasers or sales effected through agents; (vi) through transactions in
options, swaps or other derivatives (whether exchange-listed or
otherwise), or (vii) any combination of the foregoing, or by any other
legally available means. In addition, the Selling Stockholders or their
successors in interest may sell short shares of the Common Stock and
redeliver the Offered Shares to close out such short positions, enter
into hedging transactions with broker-dealers who may engage in short
sales of Offered Shares in the course of hedging the positions they
assume with the Selling Stockholders. The Selling Stockholders or their
successors in interest may also enter into option or other transactions
with broker-dealers that require the delivery by such broker-dealers of
the Offered Shares, which Offered Shares may be resold thereafter
pursuant to this Prospectus.
Brokers, dealers, underwriters or agents participating in the
distribution of the Offered Shares as agents may receive compensation in
the form of commissions, discounts or concessions from the Selling
Stockholders and/or purchasers of the Offered Shares for whom such
broker-dealers may act as agent, or to whom they may sell as principal,
or both (which compensation as to a particular broker-dealer may be less
than or in excess of customary commissions). The Selling Stockholders and
any broker-dealers who act in connection with the sale of Offered Shares
hereunder may be deemed to be "Underwriters" within the meaning of the
Securities Act, and any commissions they receive and proceeds of any sale
of Offered Shares may be deemed to be underwriting discounts and
commissions under the Securities Act. Neither the Company nor any Selling
Stockholder can presently estimate the amount of such compensation. The
Company knows of no existing arrangements between any Selling Stockholder
and any other stockholder, broker, dealer, underwriter or agent relating
to the sale or distribution of the Offered Shares.
At the time a particular offering of the Offered Shares is made, a
Prospectus Supplement, if required, will be distributed setting forth any
information required to be set forth therein.
There is no assurance that the Selling Stockholders will sell any
of the Offered Shares. In addition, the Selling Stockholders may sell
under Rule 144 under the Securities Act any Offered Shares which may then
be sold thereunder, rather than pursuant to this Prospectus.
Niagara will pay substantially all of the expenses incident to the
registration, offering and sale of the Offered Shares to the public other
than commissions or discounts of underwriters, broker-dealers or
underwriters. Niagara has also agreed to indemnify the Selling
Stockholders and certain related persons against certain liabilities
including liabilities under the Securities Act. In addition, the Selling
Stockholders have agreed to indemnify Niagara and certain related persons
against certain liabilities.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed
upon for the Company by Skadden, Arps, Slate, Meagher & Flom LLP.
EXPERTS
The consolidated balance sheets of Niagara and subsidiary as of
December 31, 1996 and 1995, the related consolidated statements of
operations, stockholders' equity and cash flows and the related schedules
for each of the three years in the period ended December 31, 1996, and
the statements of operations and cash flows of Niagara Cold Drawn for the
period from January 1, 1995 to August 16, 1995, incorporated in this
Prospectus and elsewhere in the Registration Statement, have been audited
by BDO Seidman, LLP, independent certified public accountants, as
indicated in their reports with respect thereto, and are incorporated
herein in reliance upon the authority of said firm as experts in auditing
and accounting.
The balance sheets of LaSalle as of October 31, 1996, 1995 and
1994, and the related statements of income and retained earnings, and
cash flows, and the related schedules for each of the three years in the
period ended October 31, 1996, incorporated in this Prospectus and
elsewhere in the Registration Statement, have been audited by Deloitte &
Touche LLP, independent certified public accountants, as indicated in
their reports with respect thereto, and are incorporated herein in
reliance upon the authority of said firm as experts in auditing and
accounting.
The statements of operations and cash flows of Niagara Cold Drawn
for the year ended December 31, 1994, incorporated in this Prospectus and
elsewhere in the Registration Statement, have been audited by MacDade
Abbott LLP, independent certified public accountants, as indicated in
their report with respect thereto, and are incorporated herein in
reliance upon the authority of said firm as experts in auditing and
accounting.
=================================== =================================
No dealer, salesman or any 285,715 SHARES
other person has been authorized to
give any information or to make any
representation not contained in
this Prospectus, and, if given or
made, such information or represen
tation must not be relied upon as
having been authorized by the
Company or any Selling Stockholder.
This Prospectus does not constitute NIAGARA CORPORATION
an offer to sell or a solicitation
of an offer to buy any of the
securities offered hereby in any
jurisdiction to any person to whom
it is unlawful to make such offer
in such jurisdiction. Neither the
delivery of this Prospectus nor any COMMON STOCK
sale made hereunder shall, under
any circumstances, create any
implication that the information
herein is correct as of any time
subsequent to the date hereof or
that there has been no change in
the affairs of the Company since
such date.
------------ --------------------
TABLE OF CONTENTS PROSPECTUS
Page --------------------
Available Information......... 2
Cautionary Statement for
Purposes of the "Safe
Harbor" Provisions of
the Private Securities
Litigation Reform Act
of 1995..................... 2
Documents Incorporated by
Reference................... 3
Address and Telephone
Number...................... 3
The Company................... 4
Risk Factors.................. 8
Use of Proceeds............... 9
The Selling Stockholders...... 10
Plan of Distribution.......... 11
Legal Matters................. 12
Experts....................... 12 , 1997
=================================== =================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth estimated expenses, other than
underwriting discounts and commissions, payable by Niagara in connection
with the Offering:
Securities and Exchange Commission Registration Fee...... $ 747.19
Legal Fees and Expenses.................................. 22,000.00
Accounting Fees and Expenses............................. 6,000.00
-----------
Total........................................... $ 28,747.19
Under the terms of the Stockholders Agreement, Niagara agreed to
pay all expenses incident to the registration of the Offered Shares
including, reasonable fees of counsel retained by the Selling
Stockholders. Normal underwriting commissions and brokers fees, however,
as well as any applicable transfer taxes and other selling expenses, are
payable individually by the Selling Stockholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Restated Certificate of Incorporation eliminates,
to the extent permitted by Delaware law, personal liability of directors
to the Registrant and its stockholders for monetary damages for breach of
fiduciary duty as directors.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by
or in the right of the corporation) by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful." With respect to derivative actions, Section 145(b)
of the DGCL provides in relevant part that "[a] corporation may indemnify
any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor . . . [by reason of
his service in one of the capacities specified in the preceding sentence]
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper."
ITEM 16. EXHIBITS
Exhibit No. Description
----------- -----------
3.1 Registrant's Restated Certificate of
Incorporation, as amended on May 16, 1996.(1)
3.2 Bylaws of the Company, as amended.(2)
4.1 Form of Common Stock Certificate.(2)
4.2 Form of Warrant Certificate.(2)
4.3 Warrant Agreement between Continental Stock
Transfer & Trust Company and the Registrant.(3)
4.4 Revolving Credit and Term Loan Agreement, dated
as of April 18, 1997, by and among Niagara Cold
Drawn Corp., LaSalle Steel Company, Manufacturers
and Traders Trust Company (individually and as
Agent), CIBC, Inc. and National City Bank.(4)
4.5 Form of Note and Stock Purchase Agreement, dated
as of April 18, 1997, among the Registrant,
Niagara Cold Drawn Corp., Michael J. Scharf, The
Prudential Insurance Company of America, The
Equitable Life Assurance Society of the United
States and United States Fidelity and Guaranty
Company.(4)
4.6 Stockholders Agreement, dated as of April 18,
1997, among the Registrant, Niagara Cold Drawn
Corp., Michael J. Scharf, The Prudential
Insurance Company of America, The Equitable Life
Assurance Society of the United States and United
States Fidelity and Guaranty Company.(4)
5 Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP regarding legality of securities being
registered.(5)
23.1 Written consent of BDO Seidman, LLP.
23.2 Written consent of Deloitte & Touche LLP.
23.3 Written consent of MacDade Abbott LLP.
23.4 Written consent of Skadden, Arps, Slate, Meagher
& Flom LLP (contained in the opinion filed as
Exhibit 5).(5)
24 Power of Attorney (included on the signature page
of the Registration Statement).(5)
- -----------------
1 Incorporated by reference to exhibits filed with the Registrant's
Report on Form 10-Q for the quarter ended June 30, 1996.
2 Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-1, Registration No. 33-64682.
3 Incorporated by reference to exhibits filed with the Registrant's
Report on Form 10-K for the fiscal year ended December 31, 1993.
4 Incorporated by reference to exhibits filed with the Registrant's
Report on Form 8-K, dated May 2, 1997.
5 Filed previously.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act 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; and
(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.
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 Section 15(d) of the Exchange Act (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
this 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.
Insofar as indemnification for liabilities under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described in Item 15 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 of
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 a 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 of 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.
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 Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New
York, the State of New York on October 27, 1997.
NIAGARA CORPORATION
By: /s/ MICHAEL J. SCHARF
--------------------------------------
Michael J. Scharf
Chairman of the Board, Chief Executive
Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed below by
the following persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ MICHAEL J. SCHARF Chairman of the Board, October 27, 1997
- ------------------------- Chief Executive Officer
Michael J. Scharf and President
(principal executive
officer)
*
- ------------------------- Vice President, Chief October 27, 1997
Gilbert D. Scharf Financial and Principal
Accounting Officer,
Treasurer, Secretary
and Director
(principal financial and
accounting officer)
*
- ------------------------- Director October 27, 1997
Gerald D. Cohn
*
- ------------------------- Director October 27, 1997
Andrew R. Heyer
*By: /s/ MICHAEL J. SCHARF
-----------------------------------
Michael J. Scharf, Attorney-in-Fact
EXHIBIT INDEX
Exhibit No. Description Page
----------- ----------- ----
23.1 Written consent of BDO Seidman, LLP.
23.2 Written consent of Deloitte & Touche LLP.
23.3 Written consent of MacDade Abbott LLP.
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Niagara Corporation
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Amendment No. 1 to the Registration Statement
of (i) our reports dated March 27, 1997 (October 27, 1997 with respect to
Note 15), relating to the consolidated financial statements and schedules
of Niagara Corporation and subsidiary and (ii) our report dated March 8,
1996 (October 27, 1997 with respect to Note 7) relating to the Statements
of Operations and Cash Flows of Niagara Cold Drawn Corp. for the period
from January 1, 1995 to August 16, 1995, appearing in the Company's
Annual report on Form 10-K for the year ended December 31, 1996, as
amended by the Form 10-K/A dated October 27, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
New York, New York
October 27, 1997
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 1 to the Registration
Statement of Niagara Corporation on Form S-3 of our report dated February
28, 1997 (relating to the financial statements of LaSalle Steel Company
not presented separately herein) incorporated by reference in the
Prospectus, which is part of this Amendment No. 1 to the Registration
Statement.
We also consent to the reference to us under the heading "Experts" in
such Prospectus.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Houston, Texas
October 27, 1997
EXHIBIT 23.3
INDEPENDENT AUDITORS CONSENT
We consent to the reference to our firm under the caption "Experts" and
to the use of our report dated July 10, 1995 with respect to the financial
statements of Niagara Cold Drawn Corp., included in the Niagara Corporation
Annual Report on Form 10-K for the fiscal year ended December 31, 1996 (as
amended by the Form 10-K/A dated October 27, 1997) that is made a part of
the Amendment No. 1 to the Registration Statement (Form S-3, No. 333-35691)
and related Prospectus of Niagara Corporation for the registration of 285,715
shares of its common stock.
/s/ MACDADE ABBOTT LLP
MacDade Abbott LLP
Paoli, Pennsylvania
October 27, 1997
