<PAGE> 1
As filed with the Securities and Exchange Commission on February 26, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT
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)
-----------
WILLIAM A. TEITELBAUM
CHAIRMAN AND PRESIDENT
NATIONAL RECORD MART, INC.
507 FOREST AVENUE
CARNEGIE, PENNSYLVANIA 15106
(412) 276-6200
---------------------------------------------------------
(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, PA 15219
(412) 288-3126
Approximate date of commencement of the proposed sale of the securities to
the public: From time to time after the effective date of this Registration
Statement.
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 being 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. |_|
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. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------- ------------ ------------------------------ ----------------------- -------------------
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE PER SHARE (1) AGGREGATE PRICE (1) REGISTRATION FEE
- ------------------------------- ------------ ------------------------------ ----------------------- -------------------
<S> <C> <C> <C> <C>
COMMON STOCK, $0.01 PAR VALUE 39,990 $ 4.3125 (2) $ 172,456.88 $50.87
- ------------------------------- ------------ ------------------------------ ----------------------- -------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Calculated in accordance with Rule 457(c) under the Securities Act
based upon the average of high and low price of Common Stock on
February 24, 1999 as reported by the NASDAQ National Market System
listing in The Wall Street Journal.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement is a combined prospectus and
relates to Registration Statement No. 333-64889 as previously filed by the
Registrant on Form S-3. Such Registration Statement No. 333-64889 was
declared effective on January 14, 1999. This Registration Statement,
which is a new registration statement, also constitutes Post-Effective
Amendment No. 1 to Registration Statement No. 333-64889, and such
Post-Effective Amendment shall hereafter become effective concurrently with
the effectiveness of this Registration Statement and in accordance with
Section 8(c) of the Securities Act of 1933.
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.
<PAGE> 2
PROSPECTUS
NATIONAL RECORD MART, INC.
439,990 SHARES OF COMMON STOCK
($0.01 PAR VALUE)
-------------------
National Record Mart, Inc.'s common stock trades on the NASDAQ
National Market System under the ticker symbol "NRMI". On February 16, 1999, the
closing sale price of a share of National Record Mart's stock was $4.50.
The stockholders of National Record Mart, Inc. ("NRM" or the
"Company") who are listed in this Prospectus are offering and selling up to
439,990 shares of NRM's common stock under this Prospectus. These selling
stockholders may also include anyone to whom the persons listed in this
Prospectus have pledged, donated or otherwise transferred their shares. The
selling stockholders obtained their shares of NRM stock through the exercise of
Warrants issued in private transactions on April 16, 1998 and February 5, 1999.
The selling stockholders may offer their NRM stock through
public or private transactions, on or off United States exchanges, at prevailing
market prices, or at privately negotiated prices.
------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
February 26, 1999.
<PAGE> 3
OTHER AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Accordingly,
the Company files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). You can read, inspect and
copy any such reports, proxy statements and other information at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; 7 World Trade Center, New York, New York
10048; and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60606. Copies of such materials can be obtained from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such material can also be inspected
at the offices of NASD Operations, 1735 K Street, N.W., Washington, D.C. The
Commission maintains an internet site that contains reports, proxy statements
and other information filed electronically by the Company with the Commission
which can be accessed at http://www.sec.gov.
The Company has filed with the Commission a Registration Statement
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act") with respect to the common stock,
$0.01 par value (the "Common Stock"), to which this Prospectus relates. This
Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and to the
exhibits thereto for further information with respect to the Company and the
Common Stock offered hereby. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and, in each instance,
reference is made to such copy filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference. The Registration Statement and the exhibits thereto
may be inspected without charge at the office of the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and copies thereof may be
obtained from the Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows the Company to "incorporate by reference" the
information it files with it, which means that the Company can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
Prospectus, and information that the Company files later with the Commission
will automatically update this information. The Company incorporates by
reference the following documents filed by the Company: (i) the Company's Annual
Report on Form 10-K for the year ended March 28, 1998; (ii) the Company's
Quarterly Reports on Form 10-Q for the quarters ended June 27, 1998 and
September 26, 1998, the Company's two Amended Quarterly Reports on Form 10-Q/A
for the quarter ended September 26, 1998 and the Company's Quarterly Report on
Form 10-Q for the quarter ended December 26, 1998; and (iii) the description of
the Common Stock contained in the Company's Registration Statement on Form 8-A
(File No. 22074) dated July 14, 1993, including any reports updating such
description.
The Company also incorporates by reference all documents subsequently
filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act prior to the termination of the offering of the
439,990 shares (the "Shares") made hereby from the date of filing of such
documents.
You may obtain, without charge, upon written or oral request, a copy of
any of the documents incorporated by reference, except for the exhibits to such
documents (other than the exhibits expressly incorporated in such documents by
reference). Requests should be directed to Theresa Carlise, Chief Financial
Officer, National Record Mart, Inc., 507 Forest Avenue, Carnegie, Pennsylvania
15106 (telephone number 412-276-6200). You should rely only on the information
incorporated by reference or provided in this Prospectus or any supplement. The
Company has not authorized anyone else to provide you with different
information. You should not assume that the information in this Prospectus or
any supplement is accurate as of any date other than the date on the front of
these documents.
THE COMPANY
The Company is a Delaware corporation founded in 1937, and operates in
a single industry segment as a specialty retailer of prerecorded home
entertainment products, including compact discs, audio cassettes, videos and
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<PAGE> 4
related accessories. According to Billboard magazine, the Company is the sixth
largest specialty retailer of prerecorded music in the country as measured by
the number of stores. The Company is a leading specialty music retailer in its
core western Pennsylvania/eastern Ohio market. The principal executive offices
of the Company are located at 507 Forest Avenue, Carnegie, Pennsylvania 15106
and its telephone number at such address is (412) 276-6200.
ISSUANCE OF THE WARRANTS
On April 16, 1998, the Company issued, to ten sophisticated investors,
an aggregate of $15,000,000 of senior subordinated notes, accompanied by
warrants (the "Warrants") to purchase an aggregate of 400,000 shares of Common
Stock at an exercise price of $.01 per share. The Company agreed to register for
resale, under the Securities Act of 1933, the shares of Common Stock issuable
upon exercise of the Warrants. On February 5, 1999, pursuant to the April 16,
1998 Warrant Agreement, the Company issued to the same persons additional
Warrants to purchase an aggregate of 39,990 shares of Common Stock at an
exercise price of $0.01 per share, as a settlement for the delay in registering
the 400,000 Warrants. The Company agreed to register for resale the shares of
Common Stock issuable upon the exercise of the additional Warrants.
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Common Stock is listed and traded on the NASDAQ NMS under the
symbol NRMI. The following table sets forth for the periods indicated the high
and the low closing sales prices of the Common Stock, as reported at
www.nasdaq.com for the periods indicated.
<TABLE>
<CAPTION>
CLOSING SALES PRICE PER SHARE
HIGH LOW
---- ---
<S> <C> <C>
1997
First Quarter......................................... 1 7/8 1 1/4
Second Quarter........................................ 1 5/8 1 5/16
Third Quarter......................................... 4 1/2 1 5/16
Fourth Quarter........................................ 4 3/4 3 1/2
1998
First Quarter......................................... 6 7/16 3 1/2
Second Quarter........................................ 12 1/8 5 7/8
Third Quarter ........................................ 9 1/8 4 5/16
Fourth Quarter........................................ 17 4
1999
First Quarter (through February 24, 1999)............. 8 3/16 4 1/4
</TABLE>
See the cover page of this Prospectus or of the Prospectus Supplement,
if any, accompanying this Prospectus for the last sales price of the Common
Stock reported in The Wall Street Journal as of a recent date.
The Company paid no dividends on the Common Stock for the periods
indicated. Dividends on the Common Stock will be determined in light of the
Company's results of operations, financial condition, and other factors deemed
relevant by the Company's Board of Directors. The Company's loan agreements
currently prohibit the payment of any dividends on the Common Stock.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholders. All proceeds from the sale of Common Stock
offered hereby will be for the account of the Selling Stockholders, as described
below.
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<PAGE> 5
SELLING STOCKHOLDERS
The following table sets forth certain information as of the date of
this Prospectus regarding the beneficial ownership of Common Stock by each of
the Selling Stockholders. Each Selling Stockholder is offering all of the Shares
beneficially owned by it. No Selling Stockholder holds any position, office or
other material relationship with the Company or an affiliate of the Company.
<TABLE>
<CAPTION>
PERCENTAGE OF
NUMBER OF OUTSTANDING
NAME SHARES (1) SHARES (2)
---- ---------- ----------
<S> <C> <C>
DFG Corporation 3,202 *
Fleming American Investment Trust 85,716 1.84
Palamundo Securities 3,267 *
Robert Fleming & Co. 169,640 3.65
Robert Fleming Inc. 31,522 *
Scott's Cove Special Credits Fund I, L.P. 10,905 *
Scott's Cove Special Credits Master Fund, Inc. 33,676 *
Seneca Capital L.P. 36,868 *
Seneca Capital International Ltd 61,613 1.32
ZPG Securities 3,581 *
</TABLE>
* Less than 1%
(1) Information with respect to beneficial ownership is based upon
information obtained from the Selling Stockholders and from the
Company's transfer agent. The persons and entities named in the table
have sole voting and sole investment power with respect to all shares
beneficially owned. Shares of Common Stock receivable upon exercise of
the Warrants are deemed to be outstanding and to beneficially owned by
the person presently entitled to exercise for the purpose of computing
the percentage ownership of such person but are not treated as
outstanding for the purpose of computing the percentage ownership of
any other person.
(2) Based on 4,651,529 shares of Common Stock outstanding as of the date of
this Prospectus.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 9,000,000
shares of Common Stock, of which as of the date of this Prospectus approximately
4,651,529 shares were issued and outstanding, and 2,000,000 shares of preferred
stock, $.01 par value (the "Preferred Stock"), which may be issued in one or
more series, with such designations, preferences, limitations, voting rights,
conversion privileges and other relative rights and terms as shall be set forth
in resolutions adopted by the Board of Directors providing for the issuance
thereof, of which as of the date of this Prospectus no shares are issued and
outstanding.
The following description of the Common Stock and Preferred Stock is
summarized from the relevant provisions of the Restated Certificate of
Incorporation of the Company, as amended (the "Certificate of Incorporation").
For a complete statement of such provisions, reference is made to the
Certificate of Incorporation, which is filed as an
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Exhibit to the Registration Statement. Whenever particular provisions of such
document or terms defined therein are referred to, such provisions or
definitions are incorporated by reference as a part of the statements made, and
such statements are qualified in their entirety by such reference.
COMMON STOCK
VOTING RIGHTS
The holders of Common Stock are entitled to one vote for each share
held by them on all matters voted upon by stockholders and are not entitled to
cumulative voting rights or preemptive rights for the purchase of additional
shares of any class of the Company's stock.
DIVIDENDS
Holders of Common Stock are entitled to receive such dividends as may
be declared by the Company's Board of Directors out of funds legally available
therefor, subject to the rights of holders of outstanding shares of any series
of Preferred Stock. Dividends on Common Stock will be determined in light of the
Company's results of operations, financial condition and other factors deemed
relevant by the Company's Board of Directors. The Company's loan agreements
currently prohibit the payment of any dividends on the Common Stock.
RIGHTS UPON LIQUIDATION
In the event of liquidation, dissolution or winding up of the affairs
of the Company, holders of Common Stock would be entitled to share ratably in
all assets remaining after payments to all creditors and payments required to be
made in respect of all outstanding shares of any series of Preferred Stock. See
"Preferred Stock" below.
MISCELLANEOUS
The outstanding shares of Common Stock are fully paid and are not
subject to further call or assessment. The Common Stock does not have any
sinking fund, conversion or redemption provision applicable thereto. There is no
restriction in the Restated Certificate of Incorporation on the repurchase of
shares of Common Stock by the Company with funds legally available therefor.
The Common Stock is currently listed and is traded on the NASDAQ NMS.
The Transfer Agent and Registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C.
PREFERRED STOCK
In addition to the authorized shares of Common Stock, the authorized
capital stock of the Company includes 2,000,000 shares of Preferred Stock, par
value $0.01 per share, issuable in one or more series with such terms and at
such times and for such consideration as the Board of Directors of the Company
determines. As of the date of this Prospectus, there were no shares of Preferred
Stock outstanding.
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<PAGE> 7
PREFERENCE
Generally, any shares of Preferred Stock outstanding will have
preference over and will be senior to the rights of the Common Stock with
respect to the payment of dividends and the distribution of assets in the event
of liquidation or dissolution of the Company.
PLAN OF DISTRIBUTION
The Selling Stockholders may offer Shares from time to time depending
on market conditions and other factors, in one or more transactions on the
NASDAQ NMS, in the over-the-counter market or otherwise, at market prices
prevailing at the time of sale, at negotiated prices or at fixed prices. The
Shares may be offered in any manner permitted by law, including through
underwriters, brokers, dealers or agents, and directly to one or more
purchasers. Sales of Shares may involve (i) sales to underwriters who will
acquire Shares for their own account and resell them in one or more transactions
at fixed prices or at varying prices determined at the time of sale, (ii) block
transactions in which the broker or dealer so engaged will attempt to sell the
Shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction, (iii) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account, (iv) an exchange
distribution in accordance with the rules of any such exchange, and (v) ordinary
brokerage transactions and transactions in which a broker solicits purchasers.
Brokers and dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders and/or
purchasers of Shares for whom they may act as agent (which compensation may be
in excess of customary commissions). The Selling Stockholders and any broker or
dealer that participates in the distribution of Shares may be deemed to be
underwriters and any commissions received by them and any profit on the resale
of Shares positioned by a broker or dealer may be deemed to be underwriting
discounts and commissions under the Securities Act. In the event a Selling
Stockholder engages an underwriter in connection with the sale of the Shares, to
the extent required, a Prospectus Supplement will be distributed, which will set
forth the number of Shares being offered and the terms of the offering,
including the names of the underwriters, any discounts, commissions and other
items constituting compensation to underwriters, dealers or agents, the public
offering price and any discounts, commissions or concessions allowed or
reallowed or paid by underwriters to dealers.
In connection with distributions of the Common Stock or otherwise, the
Selling Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions. In connection with such transactions,
broker-dealers or other financial institutions may engage in short sales of
Common Stock in the course of hedging the positions they assume with the Selling
Stockholders. The Selling Stockholders also may sell Common Stock short and
redeliver the Shares to close out such short positions. The Selling Stockholders
also may enter into option or other transactions with broker-dealers or other
financial institutions which require the delivery to such broker-dealer or other
financial institution of the Common Stock offered hereby, which Common Stock
such broker-dealer or other financial institution may resell pursuant to this
Prospectus (as supplemented or amended, to the extent required, to reflect such
transaction). The Selling Stockholders also may pledge the Shares registered
hereunder to a broker-dealer or other financial institution, including
affiliates of the Company, and, upon a default, such broker-dealer or other
financial institution may effect sales of the pledged Common Stock pursuant to
this Prospectus (as supplemented or amended, to the extent required, to reflect
such transaction).
In addition, the Selling Stockholders may from time to time sell Shares
in transactions under Rule 144 under the Securities Act.
In connection with the issuance of the Warrants, the Company agreed to
have a registration statement pertaining to the shares of Common Stock issued or
issuable upon exercise of the Warrants filed with and declared effective by the
Securities and Exchange Commission at the Company's expense and to maintain the
effectiveness of such registration statement until the earlier of (a) April 16,
2001 or (b) the Selling Stockholders' disposition of all such registered shares.
Prior to effectiveness of the registration statement, shares of Common Stock
issuable upon exercise of the Warrants may not be sold absent an applicable
exemption from registration. The Company agreed to bear all expenses
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<PAGE> 8
incurred in connection with the registration and qualification of the shares
registered. In addition, the Company agreed to indemnify the Selling
Stockholders against certain liabilities, including liabilities under the
Securities Act.
Until such time as the registration statement is filed with the
Commission and declared effective, the resale of the shares of Common Stock
issued or issuable upon exercise of the Warrants is not permitted, except in
reliance upon an appropriate exemption under the Securities Act.
LEGAL MATTERS
Certain legal matters in connection with the validity of the Shares
offered hereby have been passed upon for the Company by Reed Smith Shaw & McClay
LLP, counsel for the Company.
EXPERTS
The consolidated balance sheets of the Company as of March 28, 1998 and
March 29, 1997, and the consolidated statements of operations, stockholders'
equity and cash flows for each of the three years in the period ended March 28,
1998 incorporated by reference in this Prospectus, have been incorporated herein
in reliance on the report of Ernst & Young LLP, independent auditors given on
the authority of said firm as experts in accounting and auditing.
CERTAIN FORWARD-LOOKING STATEMENTS
From time to time, the Company may communicate in oral or written form
statements relating to the future results of the Company that may be considered
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. Actual results may differ materially from those
expressed or implied as a result of certain risks and uncertainties, including,
but not limited to, the pricing and marketing activities of large diversified
retailers within the geographic area of the Company's operations; the extent to
which recording artists release "hit" recordings; changes in sales and
advertising promotion practices by the major music distributors; weather,
especially during the Christmas selling season; and interest rates, which affect
the Company's financing costs.
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<PAGE> 9
================================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES OFFERED
BY THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS OR THAT
THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE
DATE HEREOF.
TABLE OF CONTENTS
PAGE
Other Available Information.........................2
Incorporation of Certain Documents by Reference.....2
The Company.........................................2
Issuance of the Warrants............................3
Price Range of Common Stock and Dividends...........3
Use of Proceeds.....................................3
Selling Stockholders................................4
Description of Capital Stock........................4
Plan of Distribution................................6
Legal Matters.......................................7
Experts.............................................7
Certain Forward-Looking Statements..................7
================================================================================
================================================================================
439,990 SHARES
NATIONAL RECORD MART, INC.
COMMON STOCK
-------
PROSPECTUS
-------
---------------
================================================================================
<PAGE> 10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses of the Registrant in connection with the issuance
and distribution of the Registrant's Common Stock are as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission
registration fee $ 54.00
Transfer Agent and Registrar Fees $ 1,000.00
Accounting fees and expenses $ 5,000.00
Printing $ 3,500.00
Legal fees and expenses $ 3,000.00
Listing Fees $ 0
Other $ 0
----------
Total Expenses $12,554.00
</TABLE>
No expenses are to be borne by the Selling Stockholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law ("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 provisions 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-Laws, 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 inure 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 that 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.
<PAGE> 11
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 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
herein as part of this Registration Statement:
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company.
4.2 Amendment to Restated Certificate of Incorporation of the Company.
4.3 Amended and Restated By-Laws of the Company.
4.4 Loan and Security Agreement dated June 11, 1993, between the
Company and Barclays Business Credit, Inc.
4.5 Amendment dated January 12, 1995, between the Company and
Barclays Business Credit, Inc, to the Loan and Security
Agreement, dated June 11, 1993, between the Company and
Barclays Business Credit, Inc.
4.6 Amendment, dated September 8, 1995, between the Company and
Shawmut Capital Corporation, successor to Barclays Business
Credit, Inc., to the Loan and Security Agreement, dated
June 11, 1993.
4.7 Amendment, dated July 19, 1996, between the Company and Fleet
Capital Corporation, successor to Shawmut Capital Corporation,
to the Loan and security Agreement, dated June 11, 1993,
between the Company and Barclays Business Credit, Inc.
4.8 Amendment, dated October 17, 1996, between the Company and
Fleet Capital Corporation, to the Loan and Security Agreement,
dated June 11, 1993, between the Company and Barclays Business
Credit, Inc.
4.9 Amendment, dated June 25, 1997, between the Company and Fleet
Capital Corporation, to the Loan and Security Agreement, dated
June 11, 1993, between the Company and Barclays Business
Credit, Inc., filed herewith.
4.10 Amendment, dated February 17, 1998, between the Company and
Fleet Capital Corporation, to the Loan and Security Agreement,
dated June 11, 1993, between the Company and Barclays Business
Credit, Inc.
4.11 Amendment, dated April 16, 1998, between the Company and Fleet
Capital Corporation, to the Loan and Security Agreement, dated
June 11, 1993, between the Company and Barclays Business
Credit, Inc.
4.12 Senior Subordinated Secured Note Purchase Agreement, dated as
of April 16, 1998, among the Company, the Guarantors from time
to time party thereto, the Purchasers from time to time party
thereto, and Robert Fleming, Inc., as Agent.
4.13 Senior Subordinated Note Purchase Agreement, dated as of
April 16, 1998, among the Company, the Guarantors from time to
time party thereto, the Purchasers from time to time party
thereto, and Robert Fleming, Inc, as Agent.
4.14 Issuer Security and Pledge Agreement, dated as of
April 16, 1998, between the Company and Robert Fleming, Inc.,
as Agent.
4.15 Guarantor Security and Pledge Agreement, dated as of
April 16, 1998, between NRM Investments, Inc. and Robert
Fleming, Inc., as Agent.
4.16 Trademark Collateral Security Agreement, dated as of April 16,
1998, between the Company and Robert Fleming, Inc., as Agent.
4.17 Subordination Agreement, dated as of April 16, 1998, between
Robert Fleming, Inc., as Agent and Fleet Capital Corporation,
acknowledged by the Company and NRM Investments, Inc.
4.18 Junior Subordination Agreement, dated as of April 16, 1998,
between Robert Fleming, Inc., as Agent , and Fleet Capital
Corporation, acknowledged by the Company and NRM Investments,
Inc.
4.19 Collateral Sharing and Agency Agreement, dated as of April 16,
1998, among the Company, NRM Investments, Inc., Robert
Fleming, Inc., as Agent, and Fleet Capital Corporation, for
itself and as Collateral Agent.
4.20 Warrant Agreement dated as of April 16, 1998, between the
Company, the Company as Warrant Agent, Robert Fleming, Inc.
and Seneca Capital L.P.
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.21 Registration Rights Agreement dated as of April 16, 1998 among
the Company, Robert Fleming Inc. and Seneca Capital L.P.
5.1 Opinion of Reed Smith Shaw & McClay LLP, as to the legality of
the Common Stock.
23.1 Consent of Reed Smith Shaw & McClay LLP
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP.
</TABLE>
ITEM 17. UNDERTAKINGS
The 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:
(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 this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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.
(4) 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 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 pursuant to any provision or arrangement whereby the
Registrant may indemnify a director, officer or controlling person of the
Registrant against liabilities arising under the Securities Act of 1933, 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE> 13
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-3 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
February 26, 1999.
NATIONAL RECORD MART, INC.
(Registrant)
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 February 26, 1999:
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/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
</TABLE>
S-1
<PAGE> 14
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION METHOD OF FILING
- ------ ----------- ----------------
<S> <C> <C>
4.1 Amended and Restated Certificate of Filed as Exhibit 3.2 to the Company's
Incorporation of the Company. Registration Statement No. 33-62622 on Form S-1
and incorporated herein by reference.
4.2 Amendment to Restated Certificate of Filed as Exhibit 3.3 to the Company's Annual
Incorporation of the Company. Report on Form 10-K for the fiscal year ended
March 25, 1995 and incorporated herein by reference.
4.3 Amended and Restated By-Laws of the Company. Filed as Exhibit 3.4 to the Company's
Registration Statement No. 33-62622 on Form S-1
and incorporated herein by reference.
4.4 Loan and Security Agreement, dated June 11, Filed as Exhibit 10.16 to the Company's
1993, between the Company and Barclays Business Registration Statement No. 33-62622 on Form S-1
Credit, Inc. and incorporated herein by reference.
4.5 Amendment, dated January 12, 1995, between he Filed as Exhibit 4.7 to the Company's Annual
Company and Barclays Business Credit, Inc., to Report on Form 10-K for the fiscal year ended
the Loan and Security Agreement, dated June 11, March 28, 1998 and incorporated herein by
1993, between the Company and Barclays Business reference.
Credit, Inc.
4.6 Amendment, dated September 8, 1995, between the Filed as Exhibit 4.8 to the Company's Annual
Company and Shawmut Capital Corporation, Report on Form 10-K for the fiscal year ended
successor to Barclays Business Credit, Inc., to March 28, 1998 and incorporated herein by
the Loan and Security Agreement, dated June 11, reference.
1993, between the Company and Barclays Business
Credit, Inc.
4.7 Amendment, dated July 19, 1996, between the Filed as Exhibit 4.9 to the Company's Annual
Company and Fleet Capital Corporation, successor Report on Form 10-K for the fiscal year ended
to Shawmut Capital Corporation, to the Loan and March 28, 1998 and incorporated herein by
Security Agreement, dated June 11, 1993, between reference.
the Company and Barclays Business Credit, Inc.
4.8 Amendment, dated October 17, 1996, between the Filed as Exhibit 10.10 to the Company's Annual
Company and Fleet Capital Corporation, to the Report on Form 10-K for the fiscal year ended
Loan and security Agreement, dated June 11, March 28, 1997 and incorporated herein by
1993, between the Company and Barclays Business reference.
Credit, Inc..
4.9 Amendment, dated June 25, 1997, between the Filed as Exhibit 4.11 to the Company's Annual
Company and Fleet Capital Corporation, to the Report on Form 10-K for the fiscal year ended
Loan and Security Agreement, dated June 11, March 28, 1998 and incorporated herein by
1993, between the Company and Barclays Business reference.
Credit, Inc.
</TABLE>
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION METHOD OF FILING
- ------ ----------- ----------------
<S> <C> <C>
4.10 Amendment, dated February 17, 1998, between the Filed as Exhibit 4.12 to the Company's Annual
Company and Fleet Capital Corporation, to the Report on Form 10-K for the fiscal year ended
Loan and Security Agreement, dated June 11, March 28, 1998 and incorporated herein by
1993, between the Company and Barclays Business reference.
Credit, Inc.
4.11 Amendment, dated April. 16, 1998, between the Filed as Exhibit 4.13 to the Company's Annual
Company and Fleet Capital Corporation, to the Report on Form 10-K for the fiscal year ended
Loan and Security Agreement, dated June 11, March 28, 1998 and incorporated herein by
1993, between the Company and Barclays Business reference.
Credit, Inc.
4.12 Senior Subordinated Secured Note Purchase Filed as Exhibit 4.14 to the Company's Annual
Agreement, dated as of April 16, 1998, among the Report on Form 10-K for the fiscal year ended
Company, the Guarantors from time to time party March 28, 1998 and incorporated herein by
thereto, the Purchasers from time to time party reference.
thereto, and Robert Fleming, Inc., as Agent.
4.13 Senior Subordinated Note Purchase Agreement, Filed as Exhibit 4.15 to the Company's Annual
dated as of April 16, 1998, among the Company, Report on Form 10-K for the fiscal year ended
the Guarantors from time to time party thereto, March 28, 1998 and incorporated herein by
the Purchasers from time to time party thereto reference.
and Robert Fleming, Inc., as Agent.
4.14 Issuer Security and Pledge Agreement, dated as Filed as Exhibit 4.16 to the Company's Annual
of April 16, 1998, between the Company and Report on Form 10-K for the fiscal year ended
Robert Fleming, Inc., as Agent. March 28, 1998 and incorporated herein by
reference.
4.15 Guarantor Security and Pledge Agreement, dated Filed as Exhibit 4.17 to the Company's Annual
as of April 16, 1998, between NRM Investments, Report on Form 10-K for the fiscal year ended
Inc. and Robert Fleming, Inc., as Agent. March 28, 1998 and incorporated herein by
reference.
4.16 Trademark Collateral Security Agreement, dated Filed as Exhibit 4.18 to the Company's Annual
as of April 16, 1998, between the Company and Report on Form 10-K for the fiscal year ended
Robert Fleming, Inc., as Agent. March 28, 1998 and incorporated herein by
reference.
4.17 Subordination Agreement, dated as of April 16, Filed as Exhibit 4.19 to the Company's Annual
1998, between Robert Fleming, Inc., as Agent, Report on Form 10-K for the fiscal year ended
and Fleet Capital Corporation, acknowledged by March 28, 1998 and incorporated herein by
the Company and NRM Investments, Inc. reference.
4.18 Junior Subordination Agreement, dated as of Filed as Exhibit 4.20 to the Company's Annual
April 16, 1998, between Robert Fleming, Inc., Report on Form 10-K for the fiscal year ended
as Agent, and Fleet Capital Corporation, March 28, 1998 and incorporated herein by
acknowledged by the Company and NRM Investments, reference.
Inc.
</TABLE>
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION METHOD OF FILING
- ------ ----------- ----------------
<S> <C> <C>
4.19 Collateral Sharing and Agency Agreement, dated Filed as Exhibit 4.21 to the Company's Annual
as of April 16, 1998, among the Company, NRM Report on Form 10-K for the fiscal year ended
Investments, Inc., Robert Fleming, Inc., as March 28, 1998 and incorporated herein by
Agent, and Fleet Capital Corporation for itself reference.
and as Collateral Agent.
4.20 Warrant Agreement dated as of April 16, 1998, Filed as Exhibit 4.22 to the Company's
between the Company, the Company as Warrant Registration Statement No. 333-64889 on Form S-3
Agent, Robert Fleming, Inc. and Seneca Capital and incorporated herein by reference.
L.P.
4.21 Registration Rights Agreement dated as of April Filed as Exhibit 4.23 to the Company's
16, 1998 among the Company, Robert Fleming Inc. Registration Statement No. 333-64889 on Form S-3
and Seneca Capital, L.P. and incorporated herein by reference.
5.1 Opinion of Reed Smith Shaw & McClay LLP, as to Filed herewith.
the legality of the Common Stock.
23.1 Consent of Reed Smith Shaw & McClay LLP. Included in Exhibit 5.1.
23.2 Consent of Ernst & Young LLP. Filed herewith.
</TABLE>
<PAGE> 1
Exhibit 5.1
OPINION AND CONSENT OF REED SMITH SHAW & McCLAY LLP
February 26, 1999
National Record Mart, Inc.
507 Forest Avenue
Carnegie, PA 15106
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel for National Record Mart, Inc., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 being filed with the Securities and Exchange Commission
(the "Registration Statement") for the purpose of registering under the
Securities Action of 1933, as amended (the "Act"), 39,990 shares of Common
Stock, $0.01 per value, of the Company (the "Common Stock") which may be issued
upon the exercise of certain outstanding Warrants (the "Warrants") and which are
being offered for sale by certain stockholders (the "Stockholders") of the
Company. This opinion is being furnished pursuant to the requirements of Form
S-3 and Item 601 of Regulation S-K under the Act.
In furnishing this opinion, we have examined the originals,
or copies thereof identified to our satisfaction, of such corporate records of
the Company and such other documents, records, opinions and papers as we have
deemed necessary or appropriate in order to give the opinion hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly organized and is a validly existing corporation
under the laws of the State of Delaware.
2. The 39,990 shares of Common Stock which are being registered under the
Registration Statement will, when issued in accordance with the terms of the
Warrants, be legally issued, be fully paid and non-assessable.
We hereby consent to the filing of our opinion as Exhibit 5.1
to the Registration Statement. By giving such consent, we do not thereby admit
that we are within the category of persons whose consents are required under
Section 7 of the Act.
Very truly yours,
/s/ Reed Smith Shaw & McClay LLP
<PAGE> 1
Exhibit 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related prospectus of National Record
Mart, Inc. for the registration of 39,990 shares of Common Stock, par value
$0.01 and to the incorporation by reference therein 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
Pittsburgh, Pennsylvania
February 26, 1999
