<PAGE>
As filed with the Securities and Exchange Commission on February 22, 1999
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CD WAREHOUSE, INC.
(Exact name of registrant as specified in its charter)
Delaware 73-1504999
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1204 Sovereign Row
Oklahoma City, Oklahoma 73108
(405) 949-2422
(Address including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Jerry W. Grizzle, President COPIES TO:
CD Warehouse, Inc. Jeanette C. Timmons, Esq.
1204 Sovereign Row Day, Edward, Federman, Propester
Oklahoma City, Oklahoma 73108 & Christensen, P.C
(405) 949-2422 210 Park Ave., Suite 2900
Oklahoma City, Oklahoma 73102
(405) 239-2121
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [X] 333-58451
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of each class of Amount to be Proposed maximum Proposed maximum aggregate Amount of
securities to be registered registered (1) offering price per unit (2) offering price (2) Registration fee(3)
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value per share 316,430 $11.40625 $3,609,279.60 $1,003.38
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</TABLE>
(1) This Registration Statement relates to the offering from time to time of an
aggregate of 316,430 shares (the "Offered Shares") of the Registrant's common
stock, par value $.01 per share ("Common Stock"), consisting of: (a) 29,000
shares of the Registrant's Common Stock received by certain purchasers of the
Common Stock in a private placement exempt from the registration provisions of
the Securities Act of 1933, as amended (the "Act"), pursuant to Regulation D
under the Act, (b) 25,000 shares of Common Stock issuable in connection with
stock options; (c) 100,000 shares of Common Stock issuable upon the exercise of
certain warrants granted to the underwriters of the Company's initial public
offering in January 1997; and (d) 162,430 shares of Common Stock issuable upon
the exercise of certain warrants granted to the placement agents of a Regulation
D/Regulation S private placement effected in May 1998. This Registration
Statement also includes such indeterminate number of shares issuable in respect
of the Offered Shares in connection with stock splits, stock dividends and
similar transactions.
(2) Calculated in accordance with Rule 457(c) under the Securities Act of 1933,
based on the average of the high and low prices of the Common Stock on [February
16, 1999], on the Nasdaq SmallCap Market.
(3) The registration fee was calculated pursuant to Rule 457(c), as $278 per $1
million, pro rated for amounts less than $1 million.
THE REGISTRANT HEREBY REQUESTS THE SECURITIES AND EXCHANGE COMMISSION TO DECLARE
THIS REGISTRATION STATEMENT EFFECTIVE IMMEDIATELY UPON FILING PURSUANT TO RULE
462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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INCORPORATION BY REFERENCE
This Registration Statement is filed with the Securities and Exchange
Commission (the "Commission") by CD Warehouse, Inc. (the "Company") pursuant to
Rule 462(b) under the Securities Act of 1933, as amended. This Registration
Statement incorporates by reference the contents of the Registration Statement
on Form S-3 (File No. 333-58451), including each of the documents incorporated
by reference therein, which relates to the offering of up to $28,169,192.50 of
securities of the Company and was filed with the Commission on July 2, 1998 and
declared effective on September 11, 1998.
Item 16. Exhibits.
Exhibit Number Name of Exhibit
--------------- ---------------
5.1* Opinion of Day, Edwards, Federman, Propester &
Christensen, P.C. as to the legality of the securities
being registered
23.1* Consent of Ernst & Young, LLP.
23.2* Consent of Arthur Andersen, LLP
24.1* Consent of Day, Edwards, Federman, Propester &
Christensen, P.C. (included in Exhibit 5.1)
* Filed herein.
II-2
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements of filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereon
duly authorized in the City of Oklahoma City, State of Oklahoma, on February 18,
1999.
CD WAREHOUSE, INC.
a Delaware corporation
By: /s/ Jerry W. Grizzle
------------------------------------------
Jerry W. Grizzle, Chairman of the Board of
Directors and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jerry W. Grizzle and Doyle E. Motley, and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place, and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments, exhibits thereto and other documents in connection
therewith) to this Registration Statement and any subsequent registration
statement filed by the registrant pursuant to Securities and Exchange Commission
Rule 462, which relates to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the require of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Jerry W. Grizzle President, Chief Executive Officer February 17, 1999
- -------------------------- and Chairman of the Board
Jerry W. Grizzle (Principal Executive Officer)
/s/ Gary D. Johnson Executive Vice President, Chief February 18, 1999
- -------------------------- Operating Officer and Director
Gary D. Johnson (Principal Executive Officer)
/s/ Christopher M. Salyer Director February 17, 1999
- ---------------------------
Christopher M. Salyer
/s/ Ronald V. Perry Director February 17, 1999
- ----------------------------
Ronald V. Perry
/s/ Robert O. McDonald Director February 17, 1999
- ----------------------------
Robert O. McDonald
/s/ Doyle E. Motley Senior Vice President and Chief February 17, 1999
- ---------------------------- Financial OfficerDoyle E. Motley
(Principal Financial and Accounting
Officer)
</TABLE>
II-3
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EXHIBIT 5.1
[Letterhead of Day, Edwards, Federman, Propester & Christensen, P.C.]
February 18, 1999
CD Warehouse, Inc.
1204 Sovereign Row
Oklahoma City, Oklahoma 73108
Re: CD Warehouse, Inc.
Registration Statement on Form S-3 pursuant to Rule 462(b) covering the
registration of an aggregate 316,430 shares
File No. 333-__________
Gentlemen:
We have acted as counsel to CD Warehouse, Inc. (the "Company") and certain
selling stockholders (the "Selling Stockholders") in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), and
pursuant to Rule 462(b) thereof, of an aggregate of 316,430 shares (the
"Shares") of the Company's common stock, par value $0.01 per share (the "Common
Stock"), to be sold by the Selling Stockholders upon the terms and subject to
the conditions set forth in the Company's registration statement on Form S-3,
File No. 333-_______ (the "Registration Statement").
In connection therewith, we have examined copies of the Company's Amended
and Restated Certificate of Incorporation, Amended and Restated Bylaws, the
corporate proceedings with respect to the offering of shares, and such other
documents and instruments as we have deemed necessary or appropriate for the
expression of the opinions contained herein. In such examination, we have
assumed the genuineness of all signatures, the authenticity and completeness of
all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the correctness of all
statements of fact contained in such documents.
Based on the foregoing, and having regard for such legal considerations as
we have deemed relevant, we are of the opinion that the Shares to be sold by the
Selling Stockholders by means of the Registration Statement, when sold in
accordance with the terms and conditions set forth in the Registration
Statement, will be duly and validly issued, fully paid and nonassessable.
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CD WAREHOUSE, INC.
PAGE 2
We are members of the Bar of the State of Oklahoma and we express no
opinion as to the laws of any jurisdiction other than the laws of the State of
Oklahoma and the federal laws of the United States of America. This opinion is
for the benefit of the Company and this opinion may not be relied upon in any
manner whatsoever by any other person or entity.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Day, Edwards, Federman, Propester & Christensen, P.C.
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DAY, EDWARDS, FEDERMAN, PROPESTER & CHRISTENSEN, P.C.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-3 No. 333-58451 and related Prospectus of CD
Warehouse, Inc. incorporated by reference in this Registration Statement Form
S-3 No. 333-______ and related Prospectus for the registration of 316,430 shares
of common stock and to the incorporation by reference therein of our report
dated February 27, 1998, with respect to the consolidated financial statements
of CD Warehouse, Inc. included in its Annual Report Form 10-KSB for the year
ended December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Oklahoma City, Oklahoma
February 18, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated June 12, 1998
included in CD Warehouse, Inc.'s Form 8-K dated June 26, 1998 and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
February 22, 1999
