<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 9, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
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)
----------
NATIONAL RECORD MART, INC. 1997 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1993 NON-EMPLOYEE DIRECTORS 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 LLP
435 SIXTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219
412-288-3126
----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
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
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 10,000 shs. $2.50 $25,000
$.01 par value 10,000 shs. $7.50 75,000
15,000 shs. $7.50 75,000
------ -------
35,000 shs. $175,000 $51.63
- ---------------------------------------------------------------------------------------------------------------------
</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 July 7, 1998 as quoted in The Wall Street Journal.
================================================================================
<PAGE> 2
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 28, 1998; 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 28, 1998.
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 Delaware General
Corporation Law (the "DGCL"), subject, however, to the rights of the holders of
any Preferred Stock.
II-1
<PAGE> 3
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.
The DGCL permits a corporation's certificate of incorporation to
provide that no director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for any breach of his or
her fiduciary duty as a director; provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of a
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions that are not in good faith or involve intentional misconduct or a
knowing violation of the law, (iii) under Section 174 of the DGCL or (iv) for
any transaction from which the director derived an improper personal benefit.
The Company's Certificate of Incorporation so provides.
The Certificate of Incorporation of the Company also provides, in
general, that the Company shall, to the fullest extent permitted by Section 145
of the DGCL, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section, and the indemnification provided for therein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any By-Law, agreement, vote as to action in his or her official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall insure to the benefit of the heirs, executors and
administrators of such person. Section 145 of the DGCL provides, in general,
that any person may be indemnified by a corporation against expenses (including
attorneys' fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed legal proceedings in which he or she is
involved by reason of the fact the he or she is or was a director or officer of
the corporation 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, if he or she acted in good faith and in a manner that
he or she reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, if he or
she had no reasonable cause to believe that his or her conduct was unlawful. If
the legal proceeding, however, is by or in the right of the corporation, the
person may not be indemnified in respect of any claim, issue or matter as to
which he or she shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the corporation unless a
court determines otherwise.
The foregoing discussion of the Company's Certificate of Incorporation
and Section 145 of the DGCL is not intended to be exhaustive and is qualified in
its entirety by reference to such Certificate and statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
II-2
<PAGE> 4
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
herein, as indicated:
Exhibit
No. Description and Method of Filing
--- --------------------------------
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 LLP, regarding legality of
shares of the Company's Common Stock being registered, filed
herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (contained in the
opinion filed as exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, independent auditors, filed
herewith.
24.1 Powers of Attorney (filed herewith as part of the signature
pages).
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.
II-3
<PAGE> 5
(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 provisions described under Item 6, 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.
II-4
<PAGE> 6
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 July 9,
1998.
NATIONAL RECORD MART, INC.
By /s/ WILLIAM A. TEITELBAUM
--------------------------------
William A. Teitelbaum
Chairman of the Board, President and
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 July 9, 1998.
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
--------- -----
/s/ WILLIAM A. TEITELBAUM Chairman of the Board, President, Chief
- ------------------------- Executive Officer and Director
William A. Teitelbaum
/s/ THERESA CARLISE Senior Vice President, Chief Financial Officer,
- ------------------------- Chief Accounting Officer and Director
Theresa Carlise
/s/ SAMUEL S. ZACHARIAS Director
- -------------------------
Samuel S. Zacharias
/s/ IRWIN B. GOLDSTEIN Director
- -------------------------
Irwin B. Goldstein
II-5
<PAGE> 7
EXHIBIT INDEX
-------------
(Pursuant to Item 601 of Regulation S-K)
Exhibit
No. Description and Method of Filing
--- --------------------------------
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 LLP, regarding legality of
shares of the Company's Common Stock being registered, filed
herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (contained in the
opinion filed as exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, independent auditors, filed
herewith.
24.1 Powers of Attorney (filed herewith as part of the signature
pages).
<PAGE> 1
Exhibit 5.1
July 9, 1998
National Record Mart
507 Forest Avenue
Carnegie, PA 15106
Re: Registration Statement on Form S-8 for National Record Mart, Inc.
1997 Non-Employee Directors Stock Option Plan
1993 Non-Employee Directors 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 35,000
shares of Common Stock, par value $.01 per share, of the Company (the "Common
Stock") which may be purchased pursuant to stock options granted under the
Company's 1997 Non-Employee Directors Stock Option Plan and the Company's 1993
Non-Employee Directors Stock Option Plan (the "Plans"). The Plans provide that
either authorized but unissued or treasury shares of Common Stock may be issued
upon the exercise of stock options granted under the Plans. In rendering our
opinion below, we have assumed that any previously issued shares reacquired by
the Company and delivered under the Plans 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 and stockholders of
the Company on May 6, and June 3, 1993, respectively, approving the
1993 Non-Employee Directors Stock Option Plan and action taken by the
Board of Directors of the Company on June 30, 1997 adopting the 1997
Non-Employee Directors Stock Option Plan; and
(3) the Plans, 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 35,000 shares of Common Stock being registered and which may be
issued by the Company pursuant to the provisions of the Plans upon the exercise
of stock options granted under the Plans have been duly authorized, and upon
such issuance in accordance with the provisions of the Plans 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 LLP
REED SMITH SHAW & McCLAY LLP
RKM: J6A
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement dated
July 9, 1998 pertaining to the National Record Mart, Inc. 1997 Non-Employee
Directors Stock Option Plan and 1993 Non-Employee Directors Stock Option Plan of
our report dated June 5, 1998, 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 28, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
July 8, 1998
