AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 27, 1997.
REGISTRATION NO. 33-64682
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 3
ON FORM S-3
TO
REGISTRATION STATEMENT
ON FORM S-1
UNDER
THE SECURITIES ACT OF 1933
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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 POST-EFFECTIVE AMENDMENT TO THE
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 POST-EFFECTIVE AMENDMENT TO THE
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 POST-EFFECTIVE AMENDMENT TO THE
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE
POST-EFFECTIVE AMENDMENT TO THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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[FLAG]
Information contained herein is subject to completion or amendment. A
post-effective amendment to the 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 such post-effective amendment to 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
6,050,000 SHARES OF COMMON STOCK
NIAGARA CORPORATION
This Prospectus relates to the issuance and sale to certain holders
of warrants (the "Warrantholders"), from time to time, of 5,750,000
shares of common stock, par value $0.01 per share (the "Common Stock"),
of Niagara Corporation (formerly International Metals Acquisition
Corporation), a Delaware corporation ("Niagara"), upon the exercise of
warrants issued in connection with Niagara's initial public offering in
August 1993 (the "IPO Warrants"). This Prospectus also relates to the
issuance and sale to certain Warrantholders, from time to time, of
300,000 shares of Common Stock issuable upon the exercise of warrants
issued in connection with Niagara's bridge financing in May 1993 (the
"Bridge Warrants" and, together with the IPO Warrants, the "Warrants").
The Warrants were issued pursuant to the terms of a Warrant Agreement,
dated as of August 13, 1993, between Niagara and Continental Stock
Transfer and Trust Company, as Warrant Agent (the "Warrant Agreement").
Each of the 6,050,000 Warrants outstanding at October 24, 1997 entitles
the holder thereof to purchase from Niagara, until the close of business
on August 13, 2000, one share of Common Stock at an exercise price of
$5.50, subject to adjustment in certain circumstances. The Warrants are
redeemable at the option of Niagara at a price of $.01 per Warrant upon
at least 30 days' notice in the event that the last sale price of the
Common Stock has been at least $10.00 per share for 20 consecutive
trading days ending on the third business day prior to the date on which
notice of redemption is given. Niagara has entered into an agreement with
certain institutional lenders to Niagara Cold Drawn Corp., its
wholly-owned subsidiary ("Niagara Cold Drawn"), to exercise such option
to redeem the Warrants at the earliest time permitted under the Warrant
Agreement and to use the net proceeds from the exercise of the Warrants
to prepay at a premium the indebtedness owed by Niagara Cold Drawn to
such institutional lenders. See "Use of Proceeds" and "Plan of
Distribution." The shares of Common Stock issuable by Niagara upon the
exercise of the Warrants are hereinafter referred to as the "Offered
Shares."
If all the Warrants are exercised, the Company would realize
$33,275,000 in proceeds. See "Use of Proceeds" and "Plan of
Distribution."
The Common Stock and the Warrants are quoted on the Nasdaq National
Market under the symbols "NIAG" and "NIAGW", respectively. On October 24,
1997, the per share closing price of the Common Stock as reported on the
Nasdaq National Market was $10.25.
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 (No.
33-64682) (together with any amend ments 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 Offered Shares, 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 Niagara with the Commission, in
Niagara's press releases and in oral statements made by authorized
officers of Niagara. 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, 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
acquisi tion, 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 285,715 shares of Common Stock.
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 standard ized
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 respon
sible 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 the Warrants to prepay certain indebtedness at a premium. See
"Use of Proceeds."
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
If all the Warrants are exercised, Niagara will realize proceeds in
the amount of $33,275,000 (based on an exercise price of $5.50 per
share). 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 285,715
shares of Common Stock. The Note and Stock Purchase Agreements require
Niagara to redeem the Warrants at the earliest time permitted under the
Warrant Agreement and to use the net proceeds from the exercise of the
Warrants to prepay the Subordinated Notes at 107% of the outstanding
principal amount, together with accrued interest to the redemption date.
There can be no assurance that any of the Warrants will be exercised.
Proceeds from the exercise of the Warrants in excess of those required to
prepay the Subordinated Notes pursuant to the Note and Stock Purchase
Agreements will be used for general corporate purposes and working
capital.
PLAN OF DISTRIBUTION
Niagara will issue the Offered Shares from time to time upon the
exercise of the Warrants by the Warrantholders. Each of the 6,050,000
Warrants outstanding at October 24, 1997 entitles the holder thereof to
purchase from Niagara, until the close of business on August 13, 2000,
one share of Common Stock at an exercise price of $5.50, subject to
adjustment in certain circumstances. The Warrants are redeemable at the
option of Niagara at a price of $.01 per Warrant upon at least 30 days'
notice in the event that the last sale price of the Common Stock has been
at least $10.00 per share for 20 consecutive trading days ending on the
third business day prior to the date on which notice of redemption is
given. The Note and Stock Purchase Agreements require Niagara to redeem
the Warrants at the earliest time permitted under the Warrant Agreement
and to use the net proceeds from the exercise of the Warrants to prepay
the Subordinated Notes at 107% of the outstanding principal amount,
together with accrued interest to the redemption date. Niagara will
receive from the Warrantholders the exercise price of the Warrants upon
such exercise. See "Use of Proceeds."
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 6,050,000 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 autho rized by the
Company. This Prospectus does not
constitute an offer to sell or a
solicitation of an offer to buy any NIAGARA CORPORATION
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 sale made hereunder shall, COMMON STOCK
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
Plan of Distribution........... 9
Legal Matters.................. 10
Experts........................ 10 , 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*
Legal Fees and Expenses.................................. $ 6,000
Accounting Fees and Expenses............................. 3,500
------
Total........................................... $ 9,500
- ----------
* Previously paid.
Niagara will pay all expenses incident to the registration of the
Offered Shares.
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.
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).
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 Post-Effective Amendment 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
Post Effective Amendment 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
- ------------------------- Financial and Principal
Gilbert D. Scharf 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
- ----------- ----------- ----
5 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP regarding legality of securities
being registered
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)
EXHIBIT 5
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
October 27, 1997
Niagara Corporation
667 Madison Avenue
New York, New York 10021
Gentlemen:
We have acted as special counsel to Niagara Corporation
(formerly International Metals Acquisition Corporation), a Delaware
corporation (the "Company"), in connection with the preparation of a
post-effective amendment to the Registration Statement on Form S-1 (File
No. 33-64682) (the "Registration Statement"), covering (i) the issuance
and sale, from time to time, of up to 5,750,000 shares of the Company's
common stock, par value $.01 per share (the "Common Stock"), upon the
exercise of warrants issued in connection with the Company's initial
public offering in August 1993 (the "IPO Warrants") to holders of the IPO
Warrants and (ii) the issuance and sale, from time to time, of up to
300,000 shares of Common Stock upon the exercise of warrants issued in
connection with the Company's bridge financing in May 1993 (the "Bridge
Warrants" and, together with the IPO Warrants, the "Warrants") to holders
of the Bridge Warrants.
This opinion is delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended (the "Act").
We have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-1 (File No. 33-64682) as filed with the
Securities and Exchange Commission (the "Commission") on June 18, 1993,
under the Act, (ii) Amendment No. 1 to the Registration Statement as
filed with the Commission on August 10, 1993, (iii) Amendment No. 2 to
the Registration Statement as filed with the Commission on August 12,
1993, (iv) Amendment No. 3 to the Registration Statement as filed with
the Commission on August 13, 1993, (v) Post-Effective Amendment No. 1 to
the Registration Statement as filed with the Commission on July 27, 1995,
(vi) Post-Effective Amendment No. 2 on Form S-3 to the Registration
Statement as filed with the Commission on September 30, 1997, (vii)
Post-Effective Amendment No. 3 on Form S-3 to the Registration Statement
as filed with the Commission on the date hereof, (viii) the Warrant
Agreement, dated as of August 13, 1993, between the Company and
Continental Stock Transfer & Trust Company, relating to the Warrants,
(ix) the Company's Restated Certificate of Incorporation, as in effect at
the time of the issuance of the Warrants and as presently in effect, (x)
the Company's by-laws, as in effect at the time of the issuance of the
Warrants and as presently in effect, (xi) resolutions of the Board of
Directors of the Company relating to, among other things, the issuance
and sale of the Common Stock upon exercise of the Warrants, (xii) the
form of a specimen certificate representing the Common Stock, (xiii) the
form of a specimen certificate representing the IPO Warrants, (xiv) the
form of a specimen certificate representing the Bridge Warrants, and (xv)
such other documents as we have deemed necessary or appropriate as a
basis for the opinions set forth below.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed by parties
other than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such
documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which we have not independently
established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others.
Members of our firm are admitted to the bar in the States of
Delaware and New York, and we do not express any opinion as to the laws
of any other jurisdiction.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, and
assuming the conformity of the certificates representing the Common Stock
to be issued upon the exercise of the Warrants to the specimens thereof
examined by us and that such certificates will be manually signed by one
of the duly authorized officers of the transfer agent and registrar for
the Common Stock appointed by the Company and registered by such transfer
agent and registrar, we are of the opinion that the Common Stock
initially issuable upon the exercise of the Warrants has been duly
authorized, and when issued and delivered against payment therefor in
accordance with the terms of the Warrants and the Warrant Agreement, will
be validly issued, fully paid and nonassesable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. We also consent
to the reference to our firm under the caption "Legal Matters" in the
Registration Statement. In giving this consent, we do not thereby admit
that we are included in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the
Commission.
Very truly yours,
/S/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM 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 Post-Effective Amendment to the Registration
Statement of (i) our reports dated March 27, 1997, relating to the
consolidated financial statements and schedules of Niagara Corporation
and subsidiary and (ii) our report dated March 8, 1996 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 Post-Effective Amendment 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 Post-Effective Amendment 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
Post-Effective Amendment to the Registration Statement (Form S-3, No.
33-64682) and related Prospectus of Niagara Corporation for the
registration of 6,050,000 shares of its common stock.
/s/ MACDADE ABBOTT LLP
MacDade Abbott LLP
Paoli, Pennsylvania
October 27, 1997
