-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Wu+8AK84tzPXIv4OJXwEOhWn/nxnbHQoV3Pax3u4GqD5e9sZlFjxO04OxMfDl7ab v0CvhT/XqD40bmsJoD5PUQ== 0000950172-98-000420.txt : 19980430 0000950172-98-000420.hdr.sgml : 19980430 ACCESSION NUMBER: 0000950172-98-000420 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980428 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NIAGARA CORP CENTRAL INDEX KEY: 0000710976 STANDARD INDUSTRIAL CLASSIFICATION: STEEL PIPE & TUBES [3317] IRS NUMBER: 593182820 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-40787 FILM NUMBER: 98602492 BUSINESS ADDRESS: STREET 1: 667 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10021 BUSINESS PHONE: 2123171000 FORMER COMPANY: FORMER CONFORMED NAME: PALM BEACH GAS CORP DATE OF NAME CHANGE: 19890720 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SCHARF GILBERT D CENTRAL INDEX KEY: 0000936895 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: TWO WORLD TRADE CENTER STREET 2: 84TH FL CITY: NEW YORK STATE: NY ZIP: 10048 MAIL ADDRESS: STREET 1: TWO WORLD TRADE CENTER STREET 2: 84TH FL CITY: NEW YORK STATE: NY ZIP: 10048 SC 13D/A 1 SCHEDULE 13D - AMENDMENT NO. 5 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No.5)* Niagara Corporation -------------------------------------------------------- (Name of Issuer) Common Stock, par value $.001 per share -------------------------------------------------------- (Title of Class of Securities) 653349100 -------------------------------------------------------- (CUSIP Number) Gilbert D. Scharf P.O. Box 1124 Ponte Vedra, Florida 32004 (904) 285-2835 -------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 5, 1997 -------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13(d)-1(f) or 13(d)-1(g), check the following box [ ]. NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP NO. 653349100 - ---------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Gilbert D. Scharf - ---------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - ---------------------------------------------------------------------------- 3 SEC USE ONLY - ---------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF; SC - ---------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ---------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ---------------------------------------------------------------------------- 7 SOLE VOTING POWER 560,700 (including 19,000 shares issuable upon NUMBER OF the exercise of Options which are currently SHARES exercisable or exercisable within 60 days**) BENEFICIALLY ---------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH 0 REPORTING ---------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 560,700 (including 19,000 shares issuable upon the exercise of Options which are currently exercisable or exercisable within 60 days**) ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ---------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 560,700 (including 19,000 shares issuable upon the exercise of Options which are currently exercisable or exercisable within 60 days**) - ---------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |X| (excludes 6,000 shares underlying Options which are not exercisable within 60 days**) - ---------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.6% - ---------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ---------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! ** The Options will become exercisable with respect to 2,000 of the underlying shares on each of the next four anniversaries of April 27, 1997 (provided Mr. Scharf continues to serve as a director of the Issuer on such date) except in the event of a Change in Control of the Issuer. Gilbert D. Scharf hereby amends his Statement on Schedule 13D, dated August 30, 1993, as amended on September 30, 1993, February 4, 1994, October 10, 1996 and June 4, 1997 (as amended, the "Schedule 13D"), relating to the Common Stock, par value $.001 per share, of Niagara Corporation, a Delaware corporation. Capitalized terms used and not defined herein shall have the meanings previously ascribed to them in the Schedule 13D. Item 2.Identity and Background. Item 2(a)-(b) is hereby amended to read in its entirety as follows: (a)-(b) This Statement is being filed by Gilbert D. Scharf, a United States citizen, whose business address is c/o Maxcor Financial Group Inc., a Delaware corporation ("Maxcor"), Two World Trade Center, Suite 8400, New York, New York 10048. Item 2(c) is hereby amended to read in its entirety as follows: (c) Mr. Scharf is Secretary and a director of the Issuer and a director of each of the Issuer's two subsidiaries, Niagara LaSalle Corporation and LaSalle Steel Company. Mr. Scharf is also Chairman of the Board, President and Chief Executive Officer of Maxcor and its wholly owned subsidiary, Euro Brokers Investment Corporation, each located at Two World Trade Center, Suite 8400, New York, NY 10048, and holds various other positions with Maxcor's other subsidiaries. Item 3. Source and Amount of Funds or Other Consideration. Item 3 of the Schedule 13D is hereby amended by deleting the seventh and eighth paragraphs thereof and adding the following after the sixth paragraph thereof: On July 2, 1997, Mr. Scharf purchased, through an open market purchase, an additional 1,500 Shares at approximately $5.787 per Share, for an aggregate consideration of $8,680. On July 14, 1997, Mr. Scharf purchased, through an open market purchase, an additional 2,000 Shares at approximately $5.398 per Share, for an aggregate consideration of $10,795.88 On July 15, 1997, Mr. Scharf purchased, through an open market purchase, an additional 500 Shares at $5.57 per Share, for an aggregate consideration of $2,785. The funds used to make each of the foregoing purchases were Mr. Scharf's personal funds. Since making these purchases, Mr. Scharf transferred 60,200 of such Shares and 178,500 of such Warrants to the Gilbert D. Scharf Living Trust, of which he is the sole trustee. On October 31, 1997, the Issuer exercised its right to redeem on December 9, 1997 (which date was extended to December 11, 1997) all of its then outstanding and unexercised Warrants at $.01 per Warrant. As a result of this call for redemption, the Warrants could not be exercised after the redemption date. Each outstanding Warrant entitled the holder to purchase from the Issuer, prior to the exercise deadline, one Share at an exercise price of $5.50. On November 10, 1997, Mr. Scharf exercised 43,000 Warrants, and on December 5, 1997, Mr. Scharf exercised 178,500 Warrants. The funds used to exercise the Warrants consisted of $618,250 of Mr. Scharf's personal funds and a $600,000 loan from the Issuer, evidenced by a Promissory Note (the "Note") executed by Mr. Scharf in favor of the Issuer. Interest on the unpaid principal amount of the Note accrues at 5.68% per annum. Principal and interest on the Note are payable in full on December 4, 1998, provided that Mr. Scharf may prepay all or part of the unpaid principal amount of the Note without premium or penalty. The Note requires installment payments of principal following the sale of Shares by Mr. Scharf in amounts equal to the proceeds from such sales. Item 4. Purpose of Transaction. The second paragraph of Item 4 of the Schedule 13D is hereby amended to read in its entirety as follows: Except to the extent set forth above, or in any other Item hereof, and except in his capacity as the Secretary and a director of the Issuer, which from time to time may consider various transactions involving its securities, Mr. Scharf does not have any present plans or proposals that relate to or would result in any of the actions required to be described in Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. The first paragraph of Item 5(a) of the Schedule 13D is hereby amended to read in its entirety as follows: (a) As described in Item 3 hereof, Mr. Scharf owns 541,700 Shares (including through IRA accounts and a living trust). Pursuant to Rule 13d-3 under the Securities Exchange Act of 1934 (the "Exchange Act"), Mr. Scharf may be deemed to be the beneficial owner of 19,000 Shares underlying options which are currently exercisable or exercisable within 60 days. Accordingly, Mr. Scharf may be deemed to be the beneficial owner of an aggregate of 560,700 Shares, representing approximately 5.6% of the sum of (i) 9,997,455 outstanding Shares as of March 25, 1998 (based upon information contained in the Issuer's Form 10-K for the year ended December 31, 1997, filed by the Issuer with the Securities and Exchange Commission) and (ii) 19,000 Shares underlying options which are currently exercisable or exercisable within 60 days. In connection with his serving as a director of the Issuer, the Compensation Committee of the Board of Directors of the Issuer (the "Compensation Committee") granted to Mr. Scharf (i) on September 13, 1996, a non-qualified stock option to purchase an aggregate of 15,000 Shares, currently exercisable as to all of the underlying Shares and (ii) on April 27, 1997, a non-qualified stock option to purchase an aggregate of 10,000 Shares, currently exercisable as to 4,000 of the underlying Shares and exercisable as to an additional 2,000 of the underlying Shares on each of the next three anniversaries of April 27, 1998 (provided Mr. Scharf continues to serve as a director of the Issuer on such date) except in the event of a "Change in Control" of the Issuer (as defined in the Issuers 1995 Stock Option Plan). The exercise price of each of the foregoing options ("Options") is $5.50 per Share. Accordingly, and pursuant to Rule 13d-3 under the Exchange Act, 19,000 Shares underlying Options which are currently exercisable or exercisable within 60 days have been included for purposes of this Statement in calculating the number of Shares beneficially owned by Mr. Scharf. Other than as described in this Amendment, no other transactions in securities of the Issuer were effected during the past sixty days by Mr. Scharf. Item 6. Contracts, Arrangements, Understandings, or Relationships with Respect to Securities of the Issuer Item 6 of the Schedule 13D is hereby amended by deleting the fifth and sixth paragraphs thereof and inserting the following in place thereof: As described in Item 3 above, on September 13, 1996 and April 27, 1997, the Compensation Committee granted Options to Mr. Scharf. The option agreements evidencing the Options (the "Option Agreements") provide for the conditions under which the Options are exercisable (described in Item 3 above) and also provide that the Options will expire on the earlier of (i) the tenth anniversary of the date of grant and (ii) 90 days after the date on which Mr. Scharf ceases to serve as a director of the Issuer. The foregoing is merely a summary of certain provisions of the Option Agreements and is qualified in its entirety by the full text thereof, copies of which are attached hereto as Exhibits 3 and 4 and incorporated herein by reference. As described in Item 3 above, on December 5, 1997, the Issuer loaned Mr. Scharf $600,000, the proceeds of which were used by Mr. Scharf to exercise Warrants. The loan was evidenced by the Note, the terms of which are summarized in Item 3 above. Such summary is qualified in its entirety by the full text of the Note, a copy of which is attached hereto as Exhibit 5 and incorporated herein by reference. Item 7. Material to be Filed as Exhibits Exhibit 1 - Stock Escrow Agreement, dated August 13, 1993, by and among the Issuer, the Initial Stockholders and the Escrow Agent (incorporated by reference to Exhibit 1 to the Statement on Schedule 13D of Gilbert D. Scharf, dated August 30, 1993). Exhibit 2 - Letter Agreement, dated May 26, 1993, by and between Gilbert D. Scharf and GKN Securities Corp (incorporated by reference to Exhibit 2 to the Statement on Schedule 13D of Gilbert D. Scharf, dated August 30, 1993). Exhibit 3 - Stock Option Agreement, dated as of September 13, 1996, by and between the Issuer and Gilbert D. Scharf (incorporated by reference to Exhibit 3 to Amendment No. 3 to the Statement on Schedule 13D of Gilbert D. Scharf, dated October 10, 1996). Exhibit 4 - Stock Option Agreement, dated as of April 27, 1997, by and between the Issuer and Gilbert D. Scharf. Exhibit 5 - Promissory Note, dated December 5, 1997, made by Gilbert D. Scharf in favor of the Issuer. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Dated: April 28, 1998 /s/ Gilbert D. Scharf -------------------------- Gilbert D. Scharf Exhibit Index Exhibit 1 - Stock Escrow Agreement, dated August 13, 1993, by and among the Issuer, the Initial Stockholders and the Escrow Agent (incorporated by reference to Exhibit 1 to the Statement on Schedule 13D of Gilbert D. Scharf, dated August 30, 1993). Exhibit 2 - Letter Agreement, dated May 26, 1993, by and between Gilbert D. Scharf and GKN Securities Corp (incorporated by reference to Exhibit 2 to the Statement on Schedule 13D of Gilbert D. Scharf, dated August 30, 1993). Exhibit 3 - Stock Option Agreement, dated as of September 13, 1996, by and between the Issuer and Gilbert D. Scharf (incorporated by reference to Exhibit 3 to Amendment No. 3 to the Statement on Schedule 13D of Gilbert D. Scharf, dated October 10, 1996). Exhibit 4 - Stock Option Agreement, dated as of April 27, 1997, by and between the Issuer and Gilbert D. Scharf. Exhibit 5 - Promissory Note, dated December 5, 1997, made by Gilbert D. Scharf in favor of the Issuer. EX-99 2 EXHIBIT 4 - STOCK OPTION AGREEMENT EXHIBIT 4 STOCK OPTION AGREEMENT AGREEMENT made as of April 27, 1997, by and between Niagara Corporation (formerly International Metals Acquisition Corporation), a Delaware corporation ("Niagara"), and Gilbert Scharf (the "Director"). WHEREAS, on August 15, 1995, Niagara's Board of Directors (the "Board") approved the International Metals Acquisition Corporation 1995 Stock Option Plan (the "Plan"); WHEREAS, on May 16, 1996, Niagara's stockholders approved the Plan; WHEREAS, on September 13, 1996, on the recommendation of the Compensation Committee of the Board (the "Compensation Committee"), the Board amended the Plan to provide for grants of stock options to directors of Niagara and its subsidiaries (collectively, the "Company"); and WHEREAS, the Compensation Committee desires to grant to the Director a NonQualified Stock Option under the Plan to acquire an aggregate of 10,000 shares of Niagara common stock, par value $.001 per share (the "Stock"), on the terms set forth herein. NOW, THEREFORE, the parties hereby agree as follows: 1. Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan. 2. Grant of Option. The Director is hereby granted a Non-Qualified Stock Option (the "Option") to purchase an aggregate of 10,000 shares of Stock, pursuant to the terms of this Agreement and the provisions of the Plan. 3. Option Price. The exercise price of the Option shall be $5.50 per share of Stock issuable pursuant to the exercise thereof. 4. Conditions to Exercisability. (a) Immediately following the execution of this Agreement, the Option shall be exercisable as to 2,000 shares of Stock covered by the Option. The Option shall become exercisable with respect to an additional 2,000 of such shares on each of the next four anniversaries of this Agreement, provided that the Director continues to serve as a director of Niagara on such date. (b) Notwithstanding the foregoing, the Option shall become exercisable in full upon the occurrence of a Change in Control of Niagara (as defined in the Plan). 5. Period of Option. This Option shall expire on the earliest to occur of: (a) the tenth anniversary of the date of this Agreement; and (b) 90 days after the date on which the Director, for any reason, ceases to serve as a director of Niagara. 6. Exercise of Option. (a) The Option shall be exercised in the following manner: the Director shall deliver to Niagara written notice specifying the number of shares of Stock which he elects to purchase. The Director must include with such notice full payment of the exercise price for the Stock being purchased pursuant to such notice. Payment of the exercise price must be made in cash or in shares of Stock having a Fair Market Value equal to such Option price or in a combination of cash and Stock. In lieu of full payment of the exercise price in cash, upon request of the Director, Niagara may, at its discretion, allow the Director to exercise the Option or a portion thereof through a cashless exercise procedure. (b) Upon the disposition of shares of Stock acquired pursuant to the exercise of the Option, Niagara shall have the right to require the payment of the amount of any taxes which are required by law to be withheld with respect to such disposition. (c) The Director will not be deemed to be a holder of any shares of Stock pursuant to exercise of the Option until the date of the issuance of a stock certificate to him for such shares and until such shares are paid for in full. 7. Entire Agreement. This Agreement and the Plan contain all the understandings between the parties hereto pertaining to the matters referred to herein, and supersedes all undertakings and agreements, whether oral or in writing, previously entered into by them with respect thereto. The Director represents that, in executing this Agreement, he does not rely and has not relied upon any representation or statement not set forth therein made by the Company with regard to the subject matter, bases or effect of this Agreement or otherwise. 8. Amendment or Modification; Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing, signed by the Director and by a duly authorized officer of Niagara. No waiver by any party hereto of any breach by another party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same time, any prior time or any subsequent time. 9. Notices. Any notice to be given hereunder shall be in writing and shall be deemed given when delivered personally, sent by courier or telecopy or registered or certified mail, postage prepaid, return receipt requested, addressed to the party concerned at the address indicated below or to such other address as such party may subsequently give notice of hereunder in writing: To the Director at: 120 East End Avenue Apartment 8C New York, New York 10028 To Niagara at: Niagara Corporation 667 Madison Avenue New York, New York 10021 With a copy to: Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, New York 10022 Attention: Milton G. Strom Telecopy: (212) 735-2000 Any notice delivered personally or by courier under this Section 9 shall be deemed given on the date delivered and any notice sent by telecopy or registered or certified mail, postage prepaid, return receipt requested, shall be deemed given on the date telecopied or mailed. 10. Severability. If any provision of this Agreement or the application of any such provision to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid and unenforceable, shall not be affected thereby, and each provision hereof shall be validated and shall be enforced to the fullest extent permitted by law. 11. Survival. The respective rights and obligations of the parties hereunder shall survive any termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations. 12. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles. 13. Headings. All descriptive headings of sections and paragraphs in this Agreement are intended solely for convenience, and no provision of this Agreement is to be construed by reference to the heading of any section or paragraph. 14. Construction. This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan are hereby incorporated herein as provisions of this Agreement. If there is a conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan will govern. By signing this Agreement, the Director confirms that he has received a copy of the Plan and has had an opportunity to review the contents thereof. 15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. NIAGARA CORPORATION By: /s/ Michael Scharf -------------------------------- Michael Scharf President /s/ Gilbert D. Scharf --------------------------------- Gilbert D. Scharf EX-99 3 EXHIBIT 5 - PROMISSORY NOTE EXHIBIT 5 PROMISSORY NOTE $600,000 December 5, 1997 FOR VALUE RECEIVED, the undersigned, Gilbert D. Scharf (the "Maker"), hereby promises to pay to the order of Niagara Corporation (the "Payee"), the principal amount of Six Hundred Thousand Dollars ($600,000), together with interest thereon as provided herein, payable at such location and on such dates as are set forth below. Interest on the unpaid principal amount hereof shall accrue at the rate of five and 68/100 percent (5.68%) per annum from and after the date hereof. Interest shall be payable, with respect to any principal amounts paid or prepaid, at the time of such payment or prepayment. The principal and interest on this Promissory Note are payable in full on December 4, 1998, provided, however, that the Maker may, at any time, prepay all or part of the unpaid principal amount hereof without premium or penalty. The Maker shall make installment payments of principal within five (5) days following the sale of any shares of Niagara Common Stock owned by him (including through livings trusts) made from and after the date hereof until this Note shall have been paid in full, in amounts equal to the proceeds from such sales. Payments of principal and interest are to be made in lawful money of the United States of America to 667 Madison Avenue, 11th Floor, New York, New York 10021 or as the Payee may designate in writing to the Maker. If any voluntary or involuntary proceeding shall be commenced seeking to have an order for relief entered against the Maker as a debtor or to adjudicate the Maker a bankrupt or insolvent, or seeking reorganization, adjustment, liquidation, dissolution or composition of the Maker or the Maker's debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver or trustee for the Maker, and such proceeding shall remain undismissed and unstayed for a period of sixty (60) days after the Maker has received notice thereof, then the unpaid principal amount of this Promissory Note and all interest accrued to such date shall become immediately due and payable without the necessity of any presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Maker. This Promissory Note shall bind the Maker and his successors and assigns and shall inure to the benefit of the Payee and its successors and assigns. No delay, omission or waiver on the part of the Payee in exercising any right hereunder shall operate as a waiver of such right or any other right of the Payee at the same or at any prior or subsequent time. No amendment, modification or waiver of this Promissory Note, nor consent to any departure therefrom, shall be effective unless in writing and signed by the Payee. This Promissory Note shall be construed in accordance with and governed by the laws of the State of New York without regard to its conflicts of law principles. IN WITNESS WHEREOF, this Promissory Note has been duly executed and delivered by the undersigned on the date first written above. /s/ Gilbert D. Scharf ---------------------------- Gilbert D. Scharf -----END PRIVACY-ENHANCED MESSAGE-----