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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 14, 1997
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NATIONAL RECORD MART, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2782687
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
507 FOREST AVENUE
CARNEGIE, PENNSYLVANIA 15106
412-276-6200
(Address, including ZIP Code, and telephone number, including area code, of
registrant's principal executive offices)
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NATIONAL RECORD MART, INC. 1993 STOCK OPTION PLAN
WILLIAM A. TEITELBAUM
CHAIRMAN AND PRESIDENT
NATIONAL RECORD MART, INC.
507 FOREST AVENUE
CARNEGIE, PENNSYLVANIA 15106
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
Copy to:
ROBERT K. MORRIS, ESQ.
REED SMITH SHAW & MCCLAY
435 SIXTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219
412-288-3126
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed Amount of
Securities to be Amount to be Maximum Offering Maximum Aggregate Registration
Registered Registered Price per share* Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 2,000 shs. $7.50 $15,000
$.01 par value 28,500 shs. 2.50 71,250
28,500 shs. 2.50 71,250
126,000 shs. 1.46875 185,063
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185,000 shs. $342,563 $103.81
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</TABLE>
*Estimated solely for the purposes of calculating the amount of the
registration fee. Pursuant to Rules 457(h) and (c), the proposed maximum
aggregate offering price for shares subject to stock options outstanding is
based on the actual option price and for shares which may be issued but are not
subject to outstanding stock options is based on the average of the high and low
sales prices of the Common Stock as reported by the NASDAQ National Market
System listing for May 12, 1997 as quoted in The Wall Street Journal.
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Page 1 of 9. Exhibit Index appears on page 7.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by National Record Mart, Inc.
(the "Company") with the Securities and Exchange Commission (the "SEC") (File
No. 0-22074) and are incorporated herein by reference:
(a) The Company's latest annual report on Form 10-K for the
fiscal year ended March 30, 1996; and
(b) All of the reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "1934 Act") since
the end of the Company's fiscal year ended March 30, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed incorporated document modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to exist or constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's Articles of Incorporation authorize the issuance of
2,000,000 shares of Preferred Stock, par value $.01 per share (the "Preferred
Stock"), and 9,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"). All the issued and outstanding shares of the Common Stock are,
and the shares registered hereunder will be, when issued and paid for, validly
issued, fully paid and non-assessable. No shares of Preferred Stock have been
issued.
Voting Rights. Holders of Common Stock are entitled to one vote per
share on all matters on which the holders of Common Stock are entitled to vote
and do not have cumulative voting rights in the election of directors. The
Company's Amended and Restated Certificate of Incorporation provides that the
Board of Directors, without action of its stockholders, may issue up to
2,000,000 shares of Preferred Stock from time to time in one or more series.
The Board of Directors is authorized to fix the voting rights, preferences,
qualifications, privileges, limitations, restrictions, options, conversion
rights and other special or relative rights thereof and the number of shares
constituting any series and the designation of such series, without further
vote or action by the stockholders.
Transferability. Shares of Common Stock are freely transferable.
Dividend and Liquidation Rights. Dividends may be declared by the
Board of Directors and paid on the Company's Common Stock out of funds legally
available therefor in accordance with the provisions of the
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Delaware General Corporation Law (the "DGCL"), subject, however, to the rights
of the holders of any Preferred Stock.
In the event of the liquidation, dissolution or winding up of the
Company, the holders of the Common Stock would be entitled to share equally and
ratably in the assets of the Company available for distribution after the
payment of all debts and liabilities of the Company.
Miscellaneous. Holders of Common Stock have no preemptive,
subscription, redemption or conversion rights and are not subject to
assessment or further calls.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the DGCL. Section 145 of the DGCL provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 145 also provides that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to be the best interests of the corporation, and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
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or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Any such indemnification (unless ordered by a court) shall be made by
the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of
conduct set forth above. Such determination shall be made:
(1) by a majority vote of the directors who were not parties to such
action, suit or proceeding, even though less than a quorum; or
(2) if there are no such directors, or, if such directors so direct,
by independent legal counsel in a written opinion; or
(3) by the stockholders.
Section 145 permits a Delaware business corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify such person against such liability.
Section 102(b)(7) of the DGCL. Section 102(b)(7) of the DGCL provides
that a corporation may set forth in its Certificate of Incorporation a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL regarding the unlawful payment of
dividends or approval of unlawful stock repurchases or redemptions, or (iv) for
any transaction from which the director derived an improper personal benefit.
No such provision shall eliminate or limit the liability of a director for any
act or omission occurring prior to the date when such provision becomes
effective (in the case of the Company, June 30, 1993). As noted below, the
Company's Amended and Restated Certificate of Incorporation (the "Charter")
includes a provision contemplated by Section 102(b)(7) of the DGCL.
Certificate of Incorporation Provision on Liability of Directors. The
Charter eliminates the liability of its directors to the fullest extent
permitted by Section 102(b)(7) of the DGCL. The Company Charter provides that
the Company's directors shall not be personally liable to the Company or its
stockholders for monetary damages for breach of their fiduciary duty as
directors, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL, or (iv) for any transactions
from which a director derived an improper personal benefit. This provision does
not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of nonmonetary relief are available
under Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
An Exhibit Index, containing a list of all exhibits filed herewith, is
included on page 7.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(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.
(b) 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
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated
by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act 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 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 such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Pittsburgh, Commonwealth of Pennsylvania,
on May 13, 1997.
NATIONAL RECORD MART, INC.
By /s/ William A. Teitelbaum
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William A. Teitelbaum
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 13, 1997.
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Theresa Carlise and William A.
Teitelbaum, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and revocation, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) 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, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURE TITLE
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/s/ William A. Teitelbaum Chairman of the Board
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William A. Teitelbaum
/s/ Theresa Carlise Director, Senior Vice
- ------------------------------ President and Chief
Theresa Carlise Financial Officer
/s/ Samuel S. Zacharias Director
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Samuel S. Zacharias
/s/ Irwin B. Goldstein Director
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Irwin B. Goldstein
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EXHIBIT INDEX
(Pursuant to Item 601 of Regulation S-K)
<TABLE>
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Exhibit Sequential
No. Description and Method of Filing Page
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.1 to the Company's
registration statement on Form S-1 (No. 33-62622). *
4.2 Amendment to Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.3 to the Company's
Annual Report on Form 10-K for the fiscal year ended March 25, 1995 *
5.1 Opinion of Reed Smith Shaw & McClay regarding legality of shares
of the Company's Common Stock being registered 8
23.1 Consent of Reed Smith Shaw & McClay (contained in the opinion filed
as exhibit 5.1 hereto)
23.2 Consent of Ernst & Young, LLP, independent auditors 9
24.1 Powers of Attorney (filed herewith as part of the signature pages)
</TABLE>
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* Incorporated by reference.
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Exhibit 5.1
May 14, 1997
National Record Mart
507 Forest Avenue
Carnegie, PA 15106
Re: Registration Statement on Form S-8 for National Record Mart,
Inc. 1993 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to National Record Mart, Inc., a
Delaware corporation (the "Company"), in connection with the above-captioned
Registration Statement (the "Registration Statement") relating to up to 185,000
shares of Common Stock, par value $.01 per share, of the Company (the "Common
Stock") which may be purchased by eligible employees of the Company pursuant to
stock options granted under the Company's 1993 Stock Option Plan (the "Plan").
The Plan provides that either authorized but unissued or treasury shares of
Common Stock may be issued upon the exercise of stock options granted under the
Plan. In rendering our opinion below, we have assumed that any previously
issued shares reacquired by the Company and delivered under the Plan will have
been duly authorized, validly issued and fully paid at the time of their
original issuance.
In connection with this opinion, we have examined, among
other things:
(1) the Amended and Restated Certificate of Incorporation of
the Company;
(2) action taken by the Board of Directors of the Company on
June 3, 1993 adopting the Plan, authorizing the issuance of up to
185,000 shares of Common Stock thereunder and reserving 185,000 shares
of Common Stock for such purpose; and
(3) the Plan, as currently in effect.
Based upon the foregoing and upon an examination of such
other documents, corporate proceedings, statutes, decisions and questions of
law as we considered necessary in order to enable us to furnish this opinion,
and subject to the assumption set forth above, we are pleased to advise you
that in our opinion the 185,000 shares of Common Stock being registered and
which may be issued by the Company pursuant to the provisions of the Plan upon
the exercise of stock options granted under the Plan have been duly authorized,
and upon such issuance in accordance with the provisions of the Plan such
shares will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have not examined the
laws of any jurisdiction other than the laws of the Commonwealth of
Pennsylvania, the General Corporate Laws of the State of Delaware and the
federal laws of the United States of America and the foregoing opinion is
limited to such laws.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the use of our name in the Prospectus
under the caption "Legal Opinion."
Yours truly,
/s/ REED SMITH SHAW & McCLAY
REED SMITH SHAW & McCLAY
RKM:KAK
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
dated May 14, 1997 pertaining to the National Record Mart, Inc. 1993 Stock
Option Plan of our report dated May 31, 1996, with respect to the consolidated
financial statements of National Record Mart, Inc. included in its Annual Report
(Form 10-K) for the period ended March 30, 1996, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
May 14, 1997
