SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K/A
(Mark One)
|X| ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____________ to _________________
Commission file number 0-22206
NIAGARA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 59-3182820
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
667 Madison Avenue, New York, New York 10021
(Address of Principal Executive Offices) Zip Code
Registrant's telephone number, including area code: (212) 317-1000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. YES X NO__.
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein. YES X NO __.
As of April 23, 1999, the aggregate market value of the
voting stock held by non-affiliates of the registrant was approximately
$48,795,697 (assumes the registrant's officers, directors and all
stockholders holding 5% of the outstanding shares are affiliates).
There were 9,511,575 shares of the Registrant's Common Stock
outstanding as of April 23, 1999.
Documents Incorporated by Reference: None.
This filing amends the previously filed Annual Report on Form 10-K
of Niagara Corporation ("Niagara") for the fiscal year ended December 31,
1998 (the "Form 10-K"). As stated in the Form 10-K, the Items comprising
Part III thereof would be filed by amendment or incorporated by reference
from Niagara's Proxy Statement for its 1999 Annual Meeting of Stockholders.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT
Directors
Certain information with respect to the directors of Niagara is set
forth below.
Michael J. Scharf, 56, has been Chairman of the Board, President
and Chief Executive Officer of Niagara since its inception in 1993. He has
also served as Chairman of the Board and Chief Executive Officer of Niagara
LaSalle Corporation, formerly Niagara Cold Drawn Corp. ("Niagara LaSalle"),
and LaSalle Steel Company ("LaSalle"), since the dates of their acquisition
by Niagara and Niagara LaSalle, respectively, and currently holds various
other positions with such subsidiaries. Mr. Scharf is also Chairman of the
Board and a director of Niagara LaSalle (UK) Limited, a subsidiary of
Niagara ("Niagara LaSalle UK") formed in March 1999 to acquire the steel
bar division of Glynwed International plc (the "Glynwed Steel Bar
Division"). Since August 1994, Mr. Scharf has been a director of Maxcor
(see below), and until August 1997, was also Vice President, Secretary and
Treasurer of Maxcor. Since December 1997, Mr. Scharf has been a director of
Worlds Inc., a development stage company which designs, develops and
markets three-dimensional music-oriented Internet sites on the worldwide
web, and until April 1999, was also its Chairman of the Board. Since August
1989, Mr. Scharf also has been a private investor. From October 1983 to
August 1989, he was the Chairman and Chief Executive Officer of Edgcomb
Steel of New England, Inc. and its successor corporation, Edgcomb
Corporation, one of the largest independent metals service center and
distribution companies in the United States. Mr. Scharf received an A.B.
degree from Princeton University and an M.B.A. from the Harvard Business
School. He is a Chairman of the Board's Audit Committee.
Gilbert D. Scharf, 50, has been Secretary and a director of Niagara
since its inception, and until March 1998, was also a Vice President and
the Treasurer of Niagara. He has also served as a director of Niagara
LaSalle and LaSalle since the dates of their acquisition by Niagara and
Niagara LaSalle, respectively. Since August 1994, Mr. Scharf has been
Chairman of the Board, President and Chief Executive Officer of Maxcor
Financial Group Inc., a holding company with operating subsidiaries in the
financial services industry ("Maxcor"), and, currently holds the same
positions with Euro Brokers Investment Corporation, a financial services
company and wholly owned subsidiary of Maxcor, as well as of a number of
its subsidiaries. Since 1989, Mr. Scharf also has been a private investor
and Chairman of Scharf Advisors, Inc. Mr. Scharf received a B.A. degree
from Duke University.
Frank Archer, 62, has been a director of Niagara since May 1998.
Mr. Archer has been President and a director of Niagara LaSalle since its
formation in 1986 and President and a director of LaSalle since April 1997
when it was acquired by Niagara LaSalle. Mr. Archer received a Certificate
in Tool and Die Design from the Cleveland Engineering Institute and an
Associates degree from John Carroll University. He also attended the
Advanced Management Program at the Harvard Business School.
Gerald L. Cohn, 70, has been a director of Niagara since its
inception. Mr. Cohn is a private investor who, since 1968, has been
involved in the financing and acquisition of companies, including AgMet,
Inc., a refiner of precious metals and a recycler of ferrous and
non-ferrous metals, Cadillac Cable Corp., a multi-plant manufacturer of
copper and aluminum building wire, Pepco, Inc., a ferrous and non-ferrous
metal recycler and ferrous stevedoring and shipping company, and DVI, Inc.,
a health service finance company for which Mr. Cohn currently serves as a
financial advisory consultant and a director. He is also a director of
Diametrics Medical, Inc. and Frazier Healthcare Investments, L.P. Mr. Cohn
attended Penn State University. He is a member of the Board's Audit
Committee and Chairman of its Compensation Committee.
Andrew R. Heyer, 41, has been a director of Niagara since its
inception. Between February 1990 and August 1995, Mr. Heyer was a Managing
Director and co-head of the Argosy Group L.P., a financial advisory firm.
Since August 1995, Mr. Heyer has been a Managing Director of CIBC
Oppenheimer Corp. (formerly CIBC Wood Gundy Securities Corp.), an
investment banking firm. He is also the Chairman of Hain Food Group, Inc.
and a director of Hayes Lemmerz International, Inc., Lancer Industries,
Inc., Fairfield Corporation and Spectrasite Holdings, Inc. Mr. Heyer
received a B.S. degree and an M.B.A. from the Wharton School of the
University of Pennsylvania. He is a member of the Board's Audit Committee.
Douglas T. Tansill, 60, has been a director of Niagara since March
1998. From December 1994 through August 1998, Mr. Tansill was a Managing
Director, and since August 1998 he has been an Advisory Director, in the
Investment Banking Division at Paine Webber Incorporated, an independent
national securities firm. Prior to December 1994, Mr. Tansill was a
Managing Director of Kidder, Peabody and Co. Incorporated and from May 1987
to December 1994 was a member of the Board of Directors of such firm. Mr.
Tansill received a B.A. degree from Trinity College and an M.B.A. from the
Harvard Business School. He is a member of the Board's Compensation
Committee.
Executive Officers
Set forth below is certain information with respect to each of the
executive officers of Niagara who is not also a director of Niagara.
Raymond Rozanski, 53, has been a Vice President and the Treasurer
of Niagara since March 1998, Executive Vice President, Secretary, Treasurer
and a director of Niagara LaSalle since its formation and Executive Vice
President, Treasurer and a director of LaSalle since it was acquired by
Niagara LaSalle. Mr. Ronzanski is also Secretary and a director of Niagara
LaSalle UK. Mr. Rozanski received a B.S. degree in Business Administration
from the State University of New York at Buffalo.
Marc J. Segalman, 40, has been Vice President and General Counsel
of Niagara since September 1997. From October 1987 to August 1997, Mr.
Segalman was an attorney in the mergers and acquisitions group of the law
firm of Skadden, Arps, Slate, Meagher & Flom LLP. Mr. Segalman received an
A.B. degree from Dartmouth College and a J.D. degree from the Boston
University School of Law.
Michael J. Scharf and Gilbert D. Scharf are brothers. There are no
other family relationships among Niagara's directors or executive officers.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended
requires Niagara's directors, officers and persons who beneficially own
more than 10% of a registered class of Niagara's equity securities ("10%
stockholders") to file with the Securities and Exchange Commission (the
'Commission") initial reports of ownership and changes in ownership in
Niagara's equity securities and to furnish Niagara with copies of all such
forms. Based solely on its review of copies of such forms received by it,
and written representations that no other reports were required, Niagara
believes that all such Section 16(a) filing requirements applicable to its
directors, officers and 10% stockholders with respect to Niagara's fiscal
year ended December 31, 1998 and its prior fiscal years were complied with
on a timely basis.
ITEM 11. EXECUTIVE COMPENSATION
Summary Compensation Table
The following table summarizes compensation paid by Niagara and its
subsidiaries during each of the last three fiscal years to its Chief
Executive Officer and its other executive officers as of December 31, 1998
(collectively, the "Named Executive Officers").
<TABLE>
<CAPTION>
Long-Term Compensation
----------------------
Executive Officer Year Annual Compensation
----------------- ---- ------------------- Securities Underlying All Other
Base Salary Bonus(1) Options (No. of Shares) Compensation(2)
----------- -------- ---------------------- ---------------
<S> <C> <C> <C> <C> <C>
Michael J. Scharf 1998 $ 480,000 $ 200,000 -- $12,074
Chairman, Chief 1997 $ 400,000(3) $ 200,000 100,000 $ 2,270
Executive 1996 $ 240,000 $ 100,000 200,000 $ 1,634
Officer and
President
Frank Archer(4) 1998 $ 250,000 $ 150,000 -- $13,940
President of
Niagara LaSalle
and LaSalle
Raymond Rozanski(5) 1998 $ 250,000 $ 150,000 -- $13,904
Vice President
and Treasurer
Marc J. Segalman (6) 1998 $ 225,000 $ 50,000 25,000(7) $ 6,882
Vice President and 1997 $ 75,000 -- 50,000 $ 406
General Counsel
- ----------------------
(1) Paid in subsequent year.
(2) Amounts for 1998 include the following employer contributions under
the Niagara/LaSalle 401(k) Retirement Savings Plan: Michael J.
Scharf -- $9,600; Frank Archer -- $11,370; Raymond Rozanski --
$11,334; and Marc J. Segalman -- $4,313. Amounts also include (i)
annual premiums ranging from $406 to $1,624 on life insurance
policies providing coverage for such officers of two times annual
salary, up to a maximum of $250,000 and (ii) annual premiums
ranging from $329 to $1,071 on long-term disability policies
providing for, in the event of disability, two-thirds of monthly
earnings, up to a maximum of $4,500 per month. Certain perquisites
and other personal benefits that aggregate in each case less than
10% of the Named Executive Officers' annual salary and bonus have
been omitted pursuant to item 402(b)(2)(iii)(C)(1) of Regulation
S-K.
(3) Based on an annual salary of $480,000 set by the Compensation
Committee in April 1997, effective May 1, 1997.
(4) Mr. Archer became an executive officer of Niagara (for purpose of
the Comission's applicable rules) in March 1998.
(5) Mr. Rozanski became a Vice President of Niagara and its Treasurer
in March 1998.
(6) Mr. Segalman became a Vice President of Niagara and its General
Counsel in September 1997. His compensation disclosed for 1997
relates only to a partial year (reflecting an annual base salary
of $225,000).
(7) Reflects the repricing on December 15, 1998 of an option granted on
September 8, 1997.
</TABLE>
Stock Option Grants
The following table sets forth certain information concerning a
stock option granted during 1997 to Marc Segalman which was amended during
1998. There were no other amendments to options held by any other Named
Executive Officer during 1998 nor were there any other options granted (or
deemed to be granted) to any Named Executive Officer during 1998.
STOCK OPTION GRANTS IN 1998
<TABLE>
<CAPTION>
Number of Potential Realizable Value
Shares % of Total Options Exercise at Assumed Annual Rates of
Executive Underlying Granted to All Price Per Expiration Stock Price Appreciation
Officer Options Granted Employees in 1998(1) Share Date for Option Term
---------- ---------------- -------------------- --------- ----------- --------------------------
5% 10%
-- ---
<S> <C> <C> <C> <C> <C> <C>
Marc J. Segalman 25,000 (2) 100 5.50(3) 9/08/07(2) $ 73,000 $ 178,750
(1) Excludes option granted to Gilbert Scharf as compensation for his
service as a director.
(2) The option reported above reflects an amendment to an option granted
to Mr. Segalman on September 8, 1997 to purchase an aggregate of
25,000 shares of Niagara Common Stock. Such option became exercisable
as to 5,000 of the underlying shares on the date of grant and an
additional 5,000 of the underlying shares on September 8, 1998, and
will become exercisable as to an additional 5,000 of the underlying
shares on each of the next three anniversaries of the date of grant,
provided that Mr. Segalman is then employed by Niagara or one of its
subsidiaries. Upon the occurrence of a "change in control" of Niagara
(as defined in Niagara's 1995 Stock Option Plan (the "Option Plan")),
such option will become exercisable in full. This option expires on
the earlier of September 8, 2007 and 90 days after the termination of
Mr. Segalman's employment with Niagara and its subsidiaries.
(3) On December 15, 1998, the exercise price per share of Niagara Common
Stock was amended from $8.50 to $5.50.
</TABLE>
Stock Option Exercises and Fiscal Year End Values
No options were exercised by any of the Named Executive Officers
during 1998.
The following table sets forth, for each Named Executive Officer,
the number of shares of Niagara Common Stock underlying the total number of
stock options held by him at Niagara's December 31, 1998 fiscal year end,
and the aggregate dollar value of the in-the-money unexercised stock
options as of such date, with those options that were then exercisable and
those that were then unexercisable seperately identified.
<TABLE>
<CAPTION>
EXERCISABLE/UNEXERCISABLE STOCK OPTIONS AT
FISCAL YEAR END AND FISCAL YEAR END VALUES
Number of Shares Underlying Value of Unexercised In-the-Money Options (1)
Options at 1998 Fiscal Year End
Name Exercisable Unexercisable Exercisable Unexercisable
- ---- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Michael J. Scharf 100,000 200,000 $ 31,250 $ 62,500
Frank Archer 180,000 70,000 $ 16,250 $ 11,875
Raymond Rozanski 180,000 70,000 $ 16,250 $ 11,875
Marc J. Segalman 20,000 30,000 $ 3,750 $ 5,625
(1) Based on the December 31, 1998 closing sale price for Niagara
Common Stock of $5 13/16 per share.
</TABLE>
Employment Contracts
Michael Scharf
Niagara and Niagara LaSalle have entered into an employment
agreement with Michael Scharf dated as of January 1, 1999 ("Employment
Agreement"), providing, among other things, that he will continue to serve
as Chairman, Chief Executive Officer and President of Niagara and Chairman
and Chief Executive Officer of Niagara LaSalle for the term of the
Employment Agreement. Such term will be for five years, subject to annual
one-year extensions commencing on January 1, 2002 unless Niagara or Mr.
Scharf provides the other with timely notice not to extend. The Employment
Agreement provides that Mr. Scharf will be entitled to (i) an annual base
salary ("Annual Base Salary") of not less than $480,000; (ii) a
performance-based annual incentive bonus subject to the approval of
Niagara's stockholders; (iii) a supplemental annual retirement benefit
("SERP") equal in amount to Mr. Scharf's Final Average Pay (as defined in
the Employment Agreement), multiplied by the product of Mr. Scharf's years
of service with Niagara and 2.5%, with 50% of such annual amount to be paid
to Mr. Scharf's surviving spouse during her lifetime; (iv) annual
grants of stock options as determined by the Compensation Committee of
Niagara's Board of Directors; and (v) medical coverage and specified fringe
benefits.
If Mr. Scharf's employment is terminated by Niagara without Cause
(as defined in the Employment Agreement) or by Mr. Scharf due to a breach
of the Employment Agreement by Niagara, Niagara will (i) provide Mr. Scharf
with a lump sum amount equal to the product of (A) the greater of three and
the number of years remaining in the term of the Employment Agreement
("Severance Multiple"), and (B) the sum of Mr. Scharf's then current Annual
Base Salary and the greater of Mr. Scharf's three-year average annual bonus
and the target bonus for the year of termination; (ii) provide Mr. Scharf
with a pro rata bonus for the year of termination; (iii) for the number of
years equal to the Severance Multiple provide Mr. Scharf with additional
years of service credit under the SERP, continued life insurance benefits
and continued exercisability of stock options; and (iv) cause all of Mr.
Scharf's outstanding equity awards to vest. Mr. Scharf would also receive a
gross-up payment for any excise tax payable under Section 4999 of the
Internal Revenue Code of 1986, as amended.
Frank Archer and Raymond Rozanski
Niagara and Niagara LaSalle entered into employment agreements with
each of Frank Archer and Raymond Rozanski (each, an "Executive") dated
August 16, 1995 (the "Archer/Rozanski Agreements"), providing, among other
things, that they will continue to serve as President and Executive Vice
President, respectively, of Niagara LaSalle for a period of five years. The
Archer/Rozanski Agreements provide that each Executive will be entitled to
(i) an annual base salary of not less than $175,000 adjusted for increases
in the consumer price index (which amount has subsequently been increased
to $250,000); (ii) cash bonuses determined by the Compensation Committee of
Niagara's Board of Directors; (iii) options to purchase 200,000 shares of
Niagara Common Stock ("Options"); (iv) medical, dental and life insurance
coverage; and (v) certain specified fringe benefits.
If the Executive's employment is terminated by Niagara other than
for incapacity or certain specified acts (i) the Executive would receive
his annual base salary through the end of the five-year term (the
"Employment Period"); (ii) subject to continued compliance with certain
confidentiality and non-competition obligations, the Executive would
receive one-half of his annual base salary (as then in effect) payable over
the one-year period following expiration of the Employment Period; (iii)
the Executive would continue to receive medical, dental and life insurance
coverage, subject to the terms of the applicable plans, through the end of
the Employment Period; and (iv) all Options would immediately vest and
become exercisable for a period of one year.
Compensation of Directors
The members of the Board of Directors are compensated in a manner
and at a rate determined from time to time by the full Board. Since 1996,
Niagara has granted non-qualified stock options to its outside directors as
compensation for their service as a director. On May 20, 1998, each member
of the Board of Directors, other than Michael Scharf and Frank Archer,
received as compensation for his service as a director, a non-qualified
stock option (collectively, the "Director Options") to purchase 10,000
shares of Niagara Common Stock exercisable at $10.9375 per share. On
December 15, 1998, each Director Option was amended to reduce the exercise
price thereof to $5.50 per share. Each Director Option became exercisable
as to 2,000 of the underlying shares on the date of grant and becomes
exercisable as to an additional 2,000 of the underlying shares on each of
the first through fourth anniversaries of the date of grant, provided the
holder is then serving as a director of Niagara. Upon a "change in control"
of Niagara (as defined in the Option Plan), each Director Option will
become exercisable in full.
Niagara maintains directors and officers liability insurance which
insures directors and officers of Niagara and its subsidiaries against
certain liabilities by them while serving in such capacities, and
reimburses Niagara for certain indemnification payments made by Niagara to
directors and officers of Niagara and its subsidiaries. This policy extends
through March 12, 2001 at a total premium of $215,000. No claims have been
made under this policy.
Compensation Committee Interlocks and Insider Participation
The Compensation Committee of the Board of Directors (the
"Compensation Committee") is currently comprised of Gerald L. Cohn and
Douglas T. Tansill. Through March 1998, Andrew R. Heyer was a member of the
Compensation Committee. Mr. Heyer is a Managing Director of CIBC
Oppenheimer Corp., which has provided investment banking and financial
advisory services to Niagara and Niagara LaSalle prior to 1998. CIBC
Oppenheimer Corp. is a subsidiary of CIBC Inc. which is one of five banks
who are parties to a $90 million revolving credit and term loan agreement
with Niagara LaSalle and LaSalle, the obligations of which are guaranteed
by Niagara. CIBC Inc.'s commitments under this credit agreement total $20
million.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Set forth below is certain information concerning beneficial
ownership of Niagara Common Stock as of April 23, 1999 by (i) persons known
by Niagara to be the beneficial owners of 5% or more of the outstanding
shares of Niagara Common Stock, (ii) each director of Niagara, (iii) each
Named Executive Officer and (iv) all directors and executive officers of
Niagara as a group.
<TABLE>
<CAPTION>
Percentage
Name(1) Number of Shares (2) Beneficially Owned(3)
---- ----------------- ------------------
<S> <C> <C>
Michael J. Scharf................................ 1,339,200(4) 13.9%
Gilbert D. Scharf................................ 568,700(5) 6.0%
Raymond Rozanski................................. 196,250(6) 2.0%
Frank Archer..................................... 190,000 2.0%
Andrew R. Heyer.................................. 50,500 *
Gerald L. Cohn................................... 37,000 *
Marc J. Segalman ................................ 20,000 *
Douglas T. Tansill............................... 6,000 *
All directors and executive officers as a group 2,216,400 22.3%
(eight persons)................................
- ------------------
* Less than 1%
(1) The address of each stockholder is c/o Niagara Corporation, 667
Madison Avenue, 11th Floor, New York, New York 10021.
(2) Includes shares of Niagara Common Stock issuable upon the exercise
of stock options held by the stockholder that are currently
exercisable or exercisable within 60 days ("Exercisable Options").
Beneficial Ownership of Exercisable Options is as follows: Michael
J. Scharf -- 120,000; Gilbert D. Scharf -- 27,000; Frank Archer --
190,000; Raymond Rozanski -- 190,000; Andrew R. Heyer -- 27,000;
Gerald L. Cohn -- 27,000; Marc J. Segalman -- 20,000; Douglas T.
Tansill -- 6,000 and all directors and executive officers as a
group -- 407,000.
(3) Based upon 9,511,575 shares of Niagara Common Stock outstanding as
of April 23, 1998, plus any shares of Niagara Common Stock issuable
upon the exercise of Exercisable Options held by the stockholder
(but not by any other stockholder).
(4) Includes 205,000 shares of Niagara Common Stock held by the Michael
J. Scharf 1987 Grantor Income Trust and 194,500 shares of Common
Stock held by the Scharf Family 1989 Trust. Michael Scharf is
trustee of both
of these trusts.
(5) Includes 238,700 shares of Niagara Common Stock held by the Gilbert
D. Scharf Living Trust, of which Gilbert Scharf is the sole
trustee.
(6) Include 6,250 shares of Niagara Common Stock held by a trust for
the benefit of Mr. Rozanski's children, of which Mr. Rozanski's
wife is trustee. Mr. Rozanski disclaims beneficial ownership of
such shares.
</TABLE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
As discussed under "Compensation Committee Interlocks and Insider
Participation," CIBC Oppenheimer Corp., a subsidiary of CIBC Inc., has
provided investment banking and financial advisory services to Niagara and
Niagara LaSalle prior to 1998. In addition, CIBC Inc. is a party to a $90
million credit agreement with Niagara LaSalle and LaSalle and has committed
therunder a total of $20 million. CIBC Inc.'s commitments under this
credit agreement total $20 million. Andrew R. Heyer, a director of Niagara,
is a Managing Director of CIBC Oppenheimer Corp.
On December 5, 1997, Niagara loaned Gilbert D. Scharf $600,000, the
proceeds of which were used by Mr. Scharf to exercise Redeemable Common
Stock Purchase Warrants of Niagara, which, having been called for
redemption, were not exercisable after December 11, 1997. The loan was
evidenced by a Promissory Note (the "Note") executed by Mr. Scharf in favor
of Niagara due on December 4, 1998. During December 1998, Niagara extended
the maturity date of the Note by one year and Mr. Scharf paid $100,000 of
principal and all accrued interest due under the Note. The foregoing are
reflected in an Amended and Restated Promissory Note dated December 15,
1998 (the "Amended Note") executed by Mr. Scharf in favor of Niagara and
issued in exchange for the Note. Interest on the unpaid principal amount
($500,000) of the Amended Note accrues at 5.68% per annum. Principal and
interest on the Amended Note are payable in full on December 4, 1999,
provided that Mr. Scharf may prepay all or part of the unpaid principal
amount of the Amended Note without premium or penalty. The Amended Note
requires installment payments of principal following the sale of shares of
Niagara Common Stock by Mr. Scharf in amounts equal to the proceeds from
such sales. Mr. Scharf is the Secretary and a director of Niagara and,
until March 1998, was a Vice President of Niagara and its Treasurer.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, AND REPORTS ON FORM 8-K.
(c) Exhibits
10.1 Employment Agreement, dated as of January 1, 1999, by and
among Niagara Corporation, Niagara LaSalle Corporation and
Michael Scharf.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned, thereunto duly authorized,
on the 30th day of April, 1999.
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 Exchange Act of
1934, this report has been signed below by the following persons on behalf
of the registrant and in the capacities and on the dates indicated.
Chairman of the Board,
/s/ Michael J. Scharf President and Chief Executive April 30, 1999
- --------------------------- Officer
Michael J. Scharf
Vice President,
Chief Financial and
/s/ Raymond Rozanski Principal Accounting April 30, 1999
- --------------------------- Officer
Raymond Rozanski
/s/ Gilbert D. Scharf Secretary and Director April 30, 1999
- --------------------------
Gilbert D. Scharf
/s/ Frank Archer Director April 30, 1999
- --------------------------
Frank Archer
/s/ Gerald L. Cohn Director April 30, 1999
- --------------------------
Gerald L. Cohn
/s/ Andrew R. Heyer Director April 30, 1999
- ---------------------------
Andrew R. Heyer
/s/ Douglas T. Tansill Director April 30, 1999
- ---------------------------
Douglas T. Tansill
EXHIBIT INDEX
10.1 Employment Agreement, dated as of January 1, 1999, by and
among Niagara Corporation, Niagara LaSalle Corporation and
Michael Scharf.
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT by and among Niagara Corporation, a Delaware
corporation (the "Company"), Niagara LaSalle Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company ("Niagara
LaSalle"), and Michael Scharf (the "Executive"), dated as of the first day
of January, 1999.
W I T N E S S E T H
WHEREAS, the Executive serves the Company as its Chairman, Chief
Executive Officer and President and serves Niagara LaSalle as its Chairman;
and
WHEREAS, the Company wishes to provide for the continued
employment by the Company of the Executive, and the Executive wishes to
continue to serve the Company, on the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
1. EMPLOYMENT PERIOD. The Company shall employ the Executive,
and the Executive shall serve the Company, on the terms and conditions set
forth in this Agreement, for the period beginning on the date hereof (the
"Effective Date") and ending on the fifth anniversary of the Effective Date
(together with any extensions made pursuant to this Section 1, the
"Employment Period"). Commencing on the third anniversary of the Effective
Date and each subsequent anniversary thereof (each of such third and
subsequent anniversaries, an "Extension Date"), the term of this Agreement
shall automatically be extended for one additional year unless, at least
three months prior to the applicable Extension Date, the Company or the
Executive shall have given notice not to extend this Agreement.
2. POSITION AND DUTIES. (a) During the Employment Period, the
Executive shall continue to serve the Company as its Chairman, Chief
Executive Officer and President and shall serve Niagara LaSalle as its
Chairman and Chief Executive Officer; in each case with such duties and
responsibilities as are consistent with past practice and are customarily
assigned to such positions, and such other duties and responsibilities not
inconsistent therewith as may from time to time be assigned to him by the
Board of Directors of the Company (the "Board") or the Board of Directors
of Niagara LaSalle, as applicable.
(b) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive
shall devote reasonable attention and time during normal business hours to
the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive under this
Agreement, use the Executive's reasonable best efforts to carry out such
responsibilities faithfully and efficiently. It shall not be considered a
violation of the foregoing for the Executive to pursue his other business
interests or to serve on corporate, industry, civic or charitable boards or
committees, so long as such activities do not significantly interfere with
the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement.
(c) The Company's headquarters shall be located in New York, New
York, and the Executive shall be based primarily in New York, New York (or
such other location as may be approved by the Board and the Executive),
except for such reasonable travel obligations as do not materially exceed
the Executive's present travel obligations.
3. COMPENSATION. (a) BASE SALARY. During the Employment
Period, the Company shall pay the Executive a base salary at the annual
rate of not less than $480,000, subject to increase by the Board if
warranted by the Company's growth during such period ("Annual Base
Salary"). Annual Base Salary shall be payable in accordance with the
Company's regular payroll practice for its senior executives, as in effect
from time to time. Any increase in the Annual Base Salary shall not limit
or reduce any other obligation of the Company under this Agreement. The
Annual Base Salary shall not be reduced after any such increase, and the
term "Annual Base Salary" shall thereafter refer to the Annual Base Salary
as so increased.
(b) ANNUAL BONUS. With respect to each of the Company's fiscal
years occurring during the Employment Period, the Company shall, subject to
the immediately following sentence, pay the Executive an annual bonus, in
cash (the "Annual Bonus"), equal in amount to 50 % of Annual Base Salary,
as in effect on the first day of the Company's fiscal year with respect to
which the Annual Bonus is paid (the "Target Bonus"), based upon achievement
by the Company of an EBITDA target approved by the Compensation Committee
of the Board (the "Committee") for such year, and increasing by 1 % of such
Annual Base Salary for each 1% increment in EBITDA in excess of such
target. The EBITDA target shall be based on operations existing at the
time the target is approved, but the target may be amended by the
Compensation Committee based upon corporate acquisitions or dispositions,
or other relevant factors. The Company shall seek the approval of its
shareholders for the Annual Bonus during the Employment Period at its
annual shareholders' meeting following the execution of this Agreement, and
the Annual Bonus shall be paid only if such approval is obtained. If such
approval is not obtained, the Company and the Executive shall negotiate in
good faith to structure an alternative incentive compensation arrangement
to fairly compensate the Executive. For purposes of this Agreement, EBITDA
shall mean the Company's earnings before interest, taxes, depreciation and
amortization, as determined in accordance with the Company's audited
financial statements.
(c) STOCK OPTIONS. During the Employment Period, the Executive
shall receive annual grants of stock options pursuant to a stock option
plan of the Company, in such amount as the Committee may in its discretion
determine.
(d) SERP. Commencing on the first day of the month following
the month in which the Executive's employment with the Company and Niagara
LaSalle terminates for any reason, the Executive shall be entitled to
receive retirement income in an annual amount equal to the product of (1)
the Executive's Final Average Pay, (2) (subject to Section 5(a)(ii)), the
number of years, including fractional parts thereof, of the Executive's
service with the Company and (3) 2.5 %. Such retirement income shall be
paid to the Executive during his lifetime and, upon his death, an amount
equal to 50 % of such retirement income shall be paid to his surviving
spouse during her lifetime. For purposes of the SERP, Final Average Pay
shall mean the average of Executive's combined Annual Base Salary and
Annual Bonus for the three consecutive years during the ten years
immediately preceding the year in which occurs the Executive's termination
of employment during which such average is highest.
(e) MEDICAL COVERAGE. The Executive and his spouse and their
dependent children shall be entitled to receive health, medical, dental and
hospitalization coverage on a basis at least as favorable (on an after-tax
basis) as is provided to such persons on the date hereof, such coverage to
be provided during the Employment Period and, with respect to the Executive
and his surviving spouse, during each of their lifetimes, and, with respect
to their dependent children, for such period as coverage is permitted under
the terms of the Company's insurance policy as in effect on the date
hereof.
(f) FRINGE BENEFITS. During the Employment Period, the
Executive shall be entitled to receive six weeks' paid vacation each year
and paid holidays, each in accordance with past practice; Company
automobile, payment of private club membership fees and dues and any other
currently provided fringe benefits in accordance with past practice; and
individual tax advice and other financial planning services not to exceed
in the aggregate an annual amount of $25,000.
(g) OTHER BENEFITS. During the Employment Period the Executive
shall be entitled to participate in all other employee benefit plans,
practices, policies and programs of the Company on a basis at least as
favorable as any other executive of the Company.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the Executive's
death during the Employment Period. The Company shall be entitled to
terminate the Executive's employment because of the Executive's Disability
during the Employment Period. "Disability" means that (i) the Executive
has been unable, for the period specified in the Company's disability plan
for senior executives, but not less than a period of 180 consecutive
business days, to perform the Executive's duties under this Agreement, as a
result of physical or mental illness or injury, and (ii) a physician
selected by the Company or its insurers, and reasonably acceptable to the
Executive or the Executive's legal representative, has determined that the
Executive is disabled within the meaning of the applicable disability plan
for senior executives. A termination of the Executive's employment by the
Company for Disability shall be communicated to the Executive by written
notice, and shall be effective on the 30th day after receipt of such notice
by the Executive (the "Disability Effective Date"), unless the Executive
returns to full-time performance of the Executive's duties before the
Disability Effective Date.
(b) TERMINATION BY THE COMPANY. (i) the Company may terminate
the Executive's employment during the Employment Period for Cause or
without Cause. "Cause" means the conviction of the Executive for the
commission of a felony, or willful gross misconduct by the Executive in
connection with his employment by the Company, in either case that results
in material and demonstrable financial harm to the Company. No act or
failure to act on the part of the Executive shall be considered "willful"
unless it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission was in
the best interests of the Company. Any act or failure to act that is based
upon authority given pursuant to a resolution duly adopted by the Board, or
the advice of counsel for the Company, shall be conclusively presumed to be
done, or omitted to be done, by the Executive in good faith and in the best
interests of the Company. In the event of a dispute concerning the
application of this provision, no claim by the Company that Cause exists
shall be given effect unless the Company establishes to the Board by clear
and convincing evidence that Cause exists.
(ii) A termination of the Executive's employment for Cause shall
be not be effective unless it is accomplished in accordance with the
following procedures. The Company shall give the Executive written notice
("Notice of Termination for Cause") of its intention to terminate the
Executive's employment for Cause, setting forth in reasonable detail the
specific conduct of the Executive that it considers to constitute Cause and
the specific provisions of this Agreement on which it relies, and stating
the date, time and place of the Special Board Meeting for Cause. The
"Special Board Meeting for Cause" means a meeting of the Board called and
held specifically and exclusively for the purpose of considering the
Executive's termination for Cause, that takes place not less than twenty
nor more than thirty business days after the Executive receives the Notice
of Termination for Cause. The Executive shall be given an opportunity,
together with counsel, to be heard at the Special Board Meeting for Cause.
The Executive's termination for Cause shall be effective when and if a
resolution is duly adopted at the Special Board Meeting for Cause by
affirmative vote of two-thirds of the entire membership of the Board
stating that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in the Notice of Termination for Cause and
that such conduct constitutes Cause under this Agreement.
(c) GOOD REASON. (i) The Executive may terminate employment
for Good Reason or without Good Reason. For purposes of this Agreement,
"Good Reason" shall mean any material breach of this Agreement by the
Company that is not remedied by the Company promptly after receipt of
notice thereof from the Executive.
(ii) A termination of employment by the Executive for Good
Reason shall be effectuated by giving the Company written notice ("Notice
of Termination for Good Reason") of the termination, setting forth in
reasonable detail the specific conduct of the Company that constitutes Good
Reason and the specific provision(s) of this Agreement on which the
Executive relies. A termination of employment by the Executive for Good
Reason shall be effective on the fifth business day following the date when
the Notice of Termination for Good Reason is given, unless the notice sets
forth a later date (which date shall in no event be later than 30 days
after the notice is given).
(iii) The failure to set forth any fact or circumstance in a
Notice of Termination for Good Reason shall not constitute a waiver of the
right to assert, and shall not preclude the party giving notice from
asserting, such fact or circumstance in an attempt to enforce any right
under or provision of this Agreement.
(iv) A termination of the Executive's employment by the
Executive without Good Reason shall be effected by giving the Company
written notice of the termination.
(d) DATE OF TERMINATION. The "Date of Termination" means the
date of the Executive's death, the Disability Effective Date, the date on
which the termination of the Executive's employment by the Company for
Cause or without Cause or by the Executive for Good Reason is effective, or
the date on which the Executive gives the Company notice of a termination
of employment without Good Reason, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) OTHER THAN
FOR CAUSE, DEATH OR DISABILITY, OR FOR GOOD REASON. If, during the
Employment Period, the Company terminates the Executive's employment for
any reason other than Cause, death or Disability, or the Executive
terminates employment for Good Reason, the Company shall
(i) pay to the Executive, in a lump sum in cash, within five
business days after the Date of Termination, (A) an amount equal to the
product of (1) the greater of three and the number of years, including
fractional parts thereof, remaining until the date on which the Employment
Period would have ended had the termination of the Executive's employment
hereunder not been terminated (such number, the "Severance Multiple"), and
(2) the sum of the Executive's then current Annual Base Salary (without
giving effect to reductions thereto) and the average Annual Bonus earned in
respect of the three years preceding the Date of Termination or, if
greater, the Target Bonus for the year in which occurs the Date of
Termination; and (B) the Accrued Obligations (as defined in paragraph (b)
of this Section); and
(ii) provide additional years of service credit under the SERP
equal in number to the Severance Multiple; and
(iii) shall continue to provide life insurance benefits to the
Executive, for a period of years equal in number to the Severance Multiple,
at least equal to those provided to the Executive prior to the events
giving rise to the Executive's termination of employment; and
(iv) take all actions necessary to cause all of the Executive's
outstanding equity awards, to the extent then forfeitable, to immediately
and fully vest and, to the extent then not exercisable, to become
immediately and fully exercisable, and any posttermination exercise period
associated with such awards to commence on the anniversary of the Date of
Termination equal in number to the Severance Multiple;
and the Company shall have no further obligations under this Agreement,
except as specified in Section 6 below.
(b) DEATH AND DISABILITY. If the Executive's employment is
terminated by reason of the Executive's death or Disability during the
Employment Period, the Company shall pay to the Executive or, in the case
of the Executive's death, to the Executive's designated beneficiaries (or,
if there is no such beneficiary, to the Executive's estate or legal
representative), in a lump sum in cash within 30 days after the Date of
Termination, the sum of the following amounts (the "Accrued Obligations"):
(1) any portion of the Executive's Annual Base Salary through the Date of
Termination that has not yet been paid; (2) an amount equal to the product
of (A) the Target Bonus that the Executive would have been eligible to earn
for the year during which such termination occurs, and (B) a fraction, the
numerator of which is the number of days in such year through the Date of
Termination, and the denominator of which is 365; and (3) all compensation
and benefits payable to the Executive under the terms of the Company's
compensation and benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination.
(c) BY THE COMPANY FOR CAUSE; BY THE EXECUTIVE OTHER THAN FOR
GOOD REASON. If the Executive's employment is terminated by the Company
for Cause or the Executive voluntarily terminates employment, other than
for Good Reason, during the Employment Period, the Company shall pay to the
Executive in a lump sum in cash within 30 days of the Date of Termination,
(1) any portion of the Executive's Annual Base Salary through the Date of
Termination that has not been paid; and (2) all compensation and benefits
payable to the Executive under the terms of the Company's compensation and
benefit plans, programs or arrangements as in effect immediately prior to
the Date of Termination.
(d) (i) In the event that any payment or benefit received or to
be received by the Executive pursuant to the terms of this agreement (the
"Contract Payments") or of any other plan, arrangement or agreement of the
Company (or any affiliate) ("Other Payments" and, together with the
Contract Payments, the "Payments") would be subject to the excise tax (the
"Excise Tax") imposed by section 4999 of the Internal Revenue Code of 1986,
as amended (the "Code") as determined as provided below, the Company shall
pay to the Executive, at the time specified in Section 5(d)(ii) below, an
additional amount (the "Gross-Up Payment") such that the net amount
retained by the Executive, after deduction of the Excise Tax on the
Payments and any federal, state and local income and employment tax and the
Excise Tax upon the Gross-Up Payment, and any interest, penalties or
additions to tax payable by the Executive with respect thereto, shall be
equal to the total present value (using the applicable federal rate (as
defined in section 1274(d) of the Code in such calculation) of the Payments
at the time such Payments are to be made. For purposes of determining
whether any of the Payments will be subject to the Excise Tax and the
amounts of such Excise Tax, (1) the total amount of the Payments shall be
treated as "parachute payments" within the meaning of section 280G(b)(2) of
the Code, and all "excess parachute payments" within the meaning of section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax,
except to the extent that, in the opinion of the Company's independent
auditor (the "Auditor"), a Payment (in whole or in part) does not
constitute a "parachute payment" within the meaning of section 280G(b)(2)
of the Code, or such "excess parachute payments" (in whole or in part) are
not subject to the Excise Tax, (2) the amount of the Payments that shall be
treated as subject to the Excise Tax shall be equal to the lesser of (A)
the total amount of the Payments or (B) the amount of "excess parachute
payments" within the meaning of section 280G(b)(1) of the Code (after
applying clause (1) hereof), and (3) the value of any noncash benefits or
any deferred payment or benefit shall be determined by the Auditor in
accordance with the principles of sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation applicable to individuals in the
calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates of taxation applicable to
individuals as are in effect in the state and locality of the Executive's
residence in the calendar year in which the Gross-Up Payment is to be made,
net of the maximum reduction in federal income taxes that can be obtained
from deduction of such state and local taxes, taking into account any
limitations applicable to individuals subject to federal income tax at the
highest marginal rates.
(ii) The Gross-Up Payments provided for in Section 5(d)(i)
hereof shall be made upon the earlier of (i) ten days following termination
of the Executive's employment or (ii) the imposition upon the Executive or
payment by the Executive of any Excise Tax.
(iii) If it is established pursuant to a final determination of
a court or an Internal Revenue Service proceeding or the opinion of the
Auditor that the Excise Tax is less than the amount taken into account
under Section 5(d)(i) hereof, the Executive shall repay to the Company
within thirty (30) days of the Executive's receipt of notice of such final
determination or opinion the portion of the Gross-Up Payment attributable
to such reduction (plus the portion of the Gross-Up Payment attributable to
the Excise Tax and federal, state and local income and employment tax
imposed on the Gross-Up Payment being repaid by the Executive if such
repayment results in a reduction in Excise Tax or a federal, state and
local income and employment tax deduction) plus any interest received by
the Executive on the amount of such repayment. If it is established
pursuant to a final determination of a court or an Internal Revenue Service
proceeding or the opinion of the Auditor that the Excise Tax exceeds the
amount taken into account hereunder (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-
Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess within thirty (30) days of the Company's receipt of
notice of such final determination or opinion.
(iv) In the event of any change in, or further interpretation
of, sections 280G or 4999 of the Code and the regulations promulgated
thereunder, the Executive shall be entitled, by written notice to the
Company, to request an opinion of the Auditor regarding the application of
such change to any of the foregoing, and the Company shall use its best
efforts to cause such opinion to be rendered as promptly as practicable.
All fees and expenses of the Auditor incurred in connection with this
agreement shall be borne by the Company.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
plan, program, policy or practice provided by the Company or any of its
affiliated companies for which the Executive may qualify, nor shall
anything in this Agreement limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or any
of its affiliated companies. Vested benefits and other amounts that the
Executive is otherwise entitled to receive under any plan, policy, practice
or program of, or any contract of agreement with, the Company or any of its
affiliated companies on or after the Date of Termination shall be payable
in accordance with the terms of each such plan, policy, practice, program,
contract or agreement, as the case may be, except as explicitly modified by
this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the
payments provided for in, and otherwise to perform its obligations under,
this Agreement shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action that the Company may
have against the Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced,
regardless of whether the Executive obtains other employment.
8. CONFIDENTIAL INFORMATION. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the Company or any
of its affiliated companies and their respective businesses that the
Executive obtains during the Executive's employment by the Company or any
of its affiliated companies and that is not public knowledge (other than as
a result of the Executive's violation of this Section 8) ("Confidential
Information"). The Executive shall not communicate, divulge or disseminate
Confidential Information at any time during or after the Executive's
employment with the Company, except with the prior written consent of the
Company or as otherwise required by law or legal process.
9. ATTORNEYS' FEES. The Company agrees to pay, as incurred, to
the fullest extent permitted by law, all legal fees and expenses that the
Executive may incur in good faith as a result of any contest (regardless of
the outcome) by the Company, the Executive or others of the validity or
enforceability of or liability under, or otherwise involving, any provision
of this Agreement, together with interest on any delayed payment at the
applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.
10. SUCCESSORS; JOINT OBLIGORS. (a) This Agreement is personal
to the Executive and, without the prior written consent of the Company,
shall not be assignable by the Executive otherwise than by will or the laws
of descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would have been required to perform it if no
such succession had taken place. As used in this Agreement, "the Company"
shall mean both the Company as defined above and any such successor that
assumes and agrees to perform this Agreement, by operation of law or
otherwise.
(d) The Company and Niagara LaSalle shall be jointly and
severally liable to the Executive for all obligations hereunder.
11. MISCELLANEOUS. (a) This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York,
without reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified except by a written
agreement executed by the parties hereto or their respective successors and
legal representatives.
(b) All notices and other communications under this Agreement
shall be in writing and shall be given by hand delivery to the other party
or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
__________________
__________________
__________________
If to the Company:
__________________
or to such other address as either party furnishes to the other in writing
in accordance with this paragraph (b) of Section 11. Notices and
communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be
held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall
remain valid and enforceable and continue in full force and effect to the
fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement all federal,
state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provisions of, or to assert, any right under,
this Agreement (including, without limitation, the right of the Executive
to terminate employment for Good Reason pursuant to paragraph (c) of
Section 4 of this Agreement) shall not be deemed to be a waiver of such
provision or right or of any other provision of or right under this
Agreement.
(f) The Executive and the Company acknowledge that this
Agreement supersedes any other agreement between them concerning the
subject matter hereof.
(g) The rights and benefits of the Executive under this
Agreement may not be anticipated, assigned, alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable
process except as required by law. Any attempt by the Executive to
anticipate, alienate, assign, sell, transfer, pledge, encumber or charge
the same shall be void. Payments hereunder shall not be considered assets
of the Executive in the event of insolvency or bankruptcy.
(h) This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and said counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and the Company and Niagara LaSalle have caused this
Agreement to be executed in their names on their behalf, all as of the day
and year first above written.
NIAGARA CORPORATION
By: /s/ Gerald Cohn
_____________________________
Name: Gerald Cohn
Title: Chairman, Compensation Committee
NIAGARA LASALLE CORPORATION
By: /s/ Frank Archer
_____________________________
Name: Frank Archer
Title: President
/s/ Michael Scharf
________________________________
Michael Scharf
