As filed with the Securities and Exchange Commission on February 12, 1999.
Registration No. 333-44229
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 5 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOPS APPLIANCE CITY, INC.
(exact name of registrant as specified in its charter)
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<S> <C> <C>
New Jersey 5731 22-3174554
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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45 Brunswick Avenue
Edison, New Jersey 08818
(732) 248-2850
(Address, including zip code, and telephone number,
including area code, of registrant's principal offices)
RICHARD JONES
Chief Executive Officer
Tops Appliance City, Inc.
45 Brunswick Avenue
Edison, New Jersey 08818
(732) 248-2850
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
W. RAYMOND FELTON, ESQ.
Greenbaum, Rowe, Smith, Ravin, Davis & Himmel LLP
Metro Corporate Campus One
Post Office Box 5600
Woodbridge, New Jersey 07095
(732) 549-5600
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, check the following box.
If any of the securities being registered on this Form are to be offered
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on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. xxx
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.
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.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of each Class of to be Price per Offering Registration
Securities to be Registered Registered Share (1) Price Fee
- ----------------------------- ------------ ---------- ----------- ---------------
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6 1/2% Convertible Subordinated
Debentures Due 2003........ $ 97,500* 100% $ 97,500 $2,329.32
Common Stock, no par value
per share (2).............. 55,715* - - -
Common Stock, no par value
per share (3).............. 2,067,148** $2.125 $4,392,689.50 $1,295.84
Common Stock, no par value
per share (4)............... 857,143* - - -
Common Stock, no par value
per share (5)............... 3,480,000* - - -
Common Stock, no par value
per share (6)............... 500,000** $2.125 $1,062,500.00 $ 313.44
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) Such number represents the number of shares of Common Stock as are
initially issuable upon conversion of the 6 1/2% Convertible Subordinated
Debentures due 2003 registered hereby.
(3) Shares of Common Stock issued to Bay Harbour Management, L.C., or its
managed accounts, as a result of a private placement of common stock, and not
registered pursuant to the Securities Act of 1933.
(4) Shares of Common Stock issued to Robert D. Carl, III upon the
conversion by Mr. Carl of $1,500,000 principal amount of the registrant's 6 1/2%
Convertible Subordinated Debentures due 2003.
5) Shares of Common Stock issued to Bay Harbour Management, L.C., or its
managed accounts, upon the conversion by Bay Harbour Management, L.C., or its
managed accounts, of $6,090,000 principal amount of the registrant's 6 1/2%
Convertible Subordinated Debentures due 2003.
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(6) Shares of Common Stock purchased by Bay Harbour Management, L.C., or
its managed accounts, from common stockholders of the Company in private
transactions, which shares of Common Stock are not registered pursuant to the
Securities Act of 1933.
* The registration fee with regard to such securities was paid on or about
January 14, 1998.
** The applicable registration fee with regard to such securities, being
$1,609.28 in total, was paid in part on or about November 12, 1998, and the
balance, being $122.48, was paid on or about January 26, 1999.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The registrant estimates expenses in connection with the offering
described in this Registration Statement will be as follows:
Item Amount
Securities and Exchange Commission Registration Fee $ 3,816.12
Printing and Engraving Expenses 0.00
Accountants' Fees and Expenses 25,000.00
Legal Fees and Expenses 50,000.00
Miscellaneous 170.68
Total $ 78,986.80
===========
Item 15. Indemnification of Directors and Officers.
The description set forth under the caption "Indemnification of
Directors and Officers" in the Company's Form S-1 Registration Statement No.
33-48326 is incorporated herein by reference.
Item 16. Exhibits.
Exhibit Number Description of Document
4 Specimen of stock certificate for shares of Common
Stock; Incorporated by reference from Form S-1 filed
June 3, 1992, Registration No. 33-48326.
4.2 Specimen of Certificate for Debentures - incorporated
by reference from Exhibit 10.34 of Form 10-K for year
ended December 30, 1997.
5 Form of Opinion of Greenbaum, Rowe, Smith, Ravin,
Davis & Himmel LLP - page II-10.
10.34 Debenture Exchange Agreement dated August 20,
1997 between the Registrant and BEA Associates
incorporated by reference from Exhibit 10.34 of
Form 10-K/A for year ended December 30, 1997.
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10.36 Conversion Agreement dated May 8, 1998 between the
Registrant and Robert D. Carl, incorporated by
reference from, Exhibit 10.36 of Amendment No. 3
to For, S-3 filed on or about January 26, 1999.
10.37 Conversion Agreement dated July 16, 1998 between
the Registrant and Bay Harbour Management, L.C.
incorporated by reference fro, Exhibit 10.37 of
Amendment No. 3 to For, S-3 filed on or about
January 26, 1999.
10.38 Share Purchase Agreement dated July 16, 1998 between
the Registrant and Bay Harbour Management, L.C.
incorporated by reference from Exhibit 10.38 of
Amendment No. 3 to For, S-3 filed on or about
January 26, 1999.
23.1 Consent of Arthur Andersen LLP - Page II-7
23.2 Consent of Ernst & Young LLP - Page II-8
23.3 Consent of Greenbaum, Rowe, Smith, Ravin, Davis &
Himmel LLP (included in Exhibit 5)
Item 17. Undertakings.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
<PAGE>
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of
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such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided however that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the Registration Statement is on Form S-3 or Form S-8 and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable ground to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Edison, State of New Jersey, on the 12th day of
February, 1999.
TOPS APPLIANCE CITY, INC.
By:/s/ Thomas L. Zambelli
-----------------------------
Thomas L. Zambelli
Chief Financial Officer and
Principal Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
- ------------------------ ---------------------------------- ----------------
*Robert G. Gross Director February 12 , 1999
- ------------------------
Robert G. Gross
/s/Thomas L. Zambelli Executive Vice February 12, 1999
- ------------------------ President, Secretary,
Thomas L. Zambelli Director, and Chief
Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
*Anthony L. Formica Director February 12, 1999
- ------------------------
Anthony L. Formica
*John H. Hollands Director February 12, 1999
- ------------------------
John H. Hollands
*Richard Jones President, CEO and February 12, 1999
- ---------------------- Director (Principal
Richard Jones Executive Officer)
*Douglas P. Teitelbaum Director February 12, 1999
- ------------------------
Douglas P. Teitelbaum
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*Steven A. Van Dyke Director February 12, 1999
- ----------------------
Steven A. Van Dyke
*Walter A. Jones Director February 12, 1999
- ----------------------
Walter A. Jones
*By:/s/ Thomas L. Zambelli Attorney-in-Fact February 12, 1998
- ---------------------------
Thomas L. Zambelli
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EXHIBIT INDEX
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Exhibit Number Description of Document Page
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5 Form of Opinion of Greenbaum,
Rowe, Smith, Ravin Davis & Himmel LLP II-10
23.1 Consent of Arthur Andersen LLP II-8
23.2 Consent of Ernst & Young, LLP II-9
23.3 Consent of Greenbaum, Rowe, Smith,
Ravin, Davis & Himmel LLP (included in II-10
Exhibit 5
24 Power-of-Attorney II-7
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EXHIBIT 23.1
Consent of Independent Auditors
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 18, 1998, included in Tops Appliance City, Inc.'s Form 10-K/A for the
year ended December 30, 1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Roseland, New Jersey
February 11, 1999
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EXHIBIT 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 5 to the Registration Statement on Form S-3 and related Prospectus
of Tops Appliance City, Inc. for the registration of $97,500 aggregate principal
amount of the Company's 6-1/2% Convertible Subordinated Debentures and 6,960,006
shares of its Common Stock and to the incorporation by reference therein of our
report dated April 15, 1997 with respect to the consolidated financial
statements and schedule of Tops Appliance City, Inc. included in its Annual
Report (Form 10-K/A) for the year ended December 30, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young, LLP
MetroPark, New Jersey
February 11, 1999
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EXHIBIT 5
Greenbaum, Rowe, Smith, Ravin, Davis & Himmel LLP
Metro Corporate Campus One
P.O. Box 5600
Woodbridge, NJ 07095-0988
February 11, 1999
Tops Appliance City, Inc.
45 Brunswick Avenue
Edison, New Jersey 08818
Re: Tops Appliance City, Inc.
Gentlemen:
We have acted as counsel to Tops Appliance City, Inc., a New Jersey
corporation (the "Company"), in connection with the filing by the Company of a
Registration Statement (the "Registration Statement")on Form S-3 (Registration
No. 333-44229), covering the registration of $97,500 6 1/2% Convertible
Subordinated Debentures due 2003 (the "Debentures") and 6,960,006 shares of
common stock, no par value per share, (the "Common Stock")(the Debentures and
the Common Stock are collectively the "Securities"). We have been asked to issue
an opinion as to whether the Securities being registered will, when sold be, or
are, legally issued, fully paid, non-assessable, and binding obligations of the
Company. Capitalized terms contained herein and not defined herein shall have
the meaning assigned to such term as contained in the Registration Statement.
As counsel to the Company, we have examined the Certificate of
Incorporation and By-Laws, as amended to date, and other corporate records of
the Company and have made such other investigations as we have deemed necessary
in connection with the opinion hereinafter set forth. We have relied, to the
extent we deem such reliance proper, upon certain factual representations of
officers and directors of the Company given in certificates, in answer to our
written inquiries and otherwise, and, although we have not independently
verified all of the facts contained therein, nothing has come to our attention
that would cause us to believe that any of the statements contained therein are
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untrue or misleading.
In making the aforesaid examinations, we have assumed the genuineness
of all signatures and the conformity to original documents of all copies
furnished to us. We have assumed that the corporate records of the Company
furnished to us constitute all of the existing corporate records of the Company
and include all corporate proceedings taken by it.
Based solely upon and subject to the foregoing, we are of the opinion
that:
(1) The Debentures being registered by the Company are legally issued,
fully paid, non-assessable, and binding obligations of the Company.
(2) The shares of Common Stock issuable upon conversion of the
Debentures have been duly authorized and reserved for issuance upon
conversion, and when issued upon conversion in accordance with the terms of
the Debentures, will have been validly issued and will be fully paid and
non-assessable, and the issuance of such shares by the Company is not
subject to any preemptive or similar rights.
(3) The Issued Stock has been validly issued and is fully paid and
non-assessable, and the issuance of the Issued Stock by the Company is not
subject to any preemptive or similar rights.
We hereby consent to the filing of this opinion as an Exhibit to the
aforesaid Registration Statement and to the reference to our firm under the
caption "Legal Matters" in the Prospectus.
Very truly yours,
/s/ Greenbaum, Rowe, Smith, Ravin, Davis & Himmel LLP
Greenbaum, Rowe, Smith, Ravin, Davis & Himmel LLP
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