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As filed with the Securities and Exchange Commission on January 14, 1999
Registration No. 333-64889
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-3
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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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
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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. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED SHARE AGGREGATE PRICE REGISTRATION FEE
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COMMON STOCK, $0.01 PAR VALUE 400,000 (1) (1) (1)
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(1) Previously calculated and paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS
NATIONAL RECORD MART, INC.
400,000 SHARES OF COMMON STOCK
($0.01 PAR VALUE)
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This Prospectus relates to 400,000 shares (the "Shares") of
common stock, $0.01 par value ("Common Stock"), of National Record Mart, Inc.
(the "Company"), which may be offered by the Selling Stockholders named herein
or their respective pledgees, donees, transferees or other successors in
interest (individually, the "Selling Stockholder" or in the aggregate, the
"Selling Stockholders") from time to time. The Shares may be acquired by the
Selling Shareholders upon exercise of outstanding warrants to purchase shares of
Common Stock, issued by the Company on April 16, 1998 in a non-public
transaction. Such warrants are exercisable at a price of $.01 per share of
Common Stock, at any time on or after October 16, 1998. The Company will receive
no part of the proceeds from sales of the Shares offered hereby. The Shares are
quoted on the NASDAQ National Market System ("NASDAQ NMS") under the trading
symbol "NRMI". On January 11, 1999, the closing price of the Common Stock on
the NASDAQ NMS was $7-13/16 per share.
The Shares may be offered for sale from time to time by the
Selling Stockholders, or by certain other persons who are named in an amendment
or supplement to this Prospectus, in one or more transactions described herein
on the NASDAQ NMS, in the over-the-counter market, in one or more private
transactions or in a combination of such methods of sale, at prices and on terms
then prevailing, at prices related to such prices or at negotiated prices. See
"Plan of Distribution" below. The price at which any of the Shares of Common
Stock may be sold, and the commissions, if any, paid in connection with any
such sale, may vary from transaction to transaction. It is understood that,
under certain circumstances, persons effecting resales of Common Stock purchased
and dealers or brokers handling such transactions may be deemed (such persons
not so conceding) to be "underwriters" within the meaning of the Securities Act
of 1933, as amended, and the rules and regulations promulgated from time to time
thereunder (the "Securities Act"), with respect to such sales.
The Company will bear all expenses incurred in connection with
the offering of the Shares pursuant to this Prospectus other than underwriting
discounts and commissions, brokerage fees and similar compensation.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is January ___, 1999.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information can be
inspected and copied 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. 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. All materials filed by the Company
should also be available for inspection at the offices of NASD Operations, 1735
K Street, N.W., Washington, D.C.
The Company has filed with the Commission a Registration
Statement under the Securities Act with respect to 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 following documents filed by the Company with the
Commission are incorporated in and made a part of this Prospectus by reference:
(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 and the Company's two Amended Quarterly Reports
on Form 10-Q/A for the quarter ended September 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.
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 Shares made hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Any person receiving a copy of this Prospectus may obtain,
without charge, upon written or oral request, a copy of any of the documents
incorporated by reference herein, 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).
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 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
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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. In the transaction, the
Company agreed to register for resale, under the Securities Act of 1933, the
shares of Common Stock issuable upon exercise of the Warrants. The agreement
under which the Warrants were issued contains a penalty provision. Under the
provision, if a registration statement covering the shares underlying the
Warrants has not been declared effective by the Commission by October 16, 1998,
additional Warrants are to be issued by the Company, at the rate of 20,000
Warrants for each month that such effectiveness is delayed, or 60,000 Warrants
as of the date of this Prospectus.
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 sales prices of the Common Stock, as reported in The Wall
Street Journal for the periods indicated.
SALES PRICE PER SHARE
HIGH LOW
---- ---
1996
First Quarter........................................2-1/4 15/16
Second Quarter.......................................2-3/8 1-5/16
Third Quarter........................................1-7/8 1-1/2
Fourth Quarter.......................................1-1/2 1-1/4
1997
First Quarter........................................1-3/4 1-1/4
Second Quarter.......................................1-9/16 1-1/4
Third Quarter........................................4-5/8 2-11/16
Fourth Quarter.......................................4-1/4 3-1/2
1998
First Quarter........................................6-1/2 5-1/2
Second Quarter......................................12-1/8 5-7/8
Third Quarter........................................9-1/8 4-5/16
Fourth Quarter......................................14 4
1999 First Quarter (through January 11)...................8-1/16 7-5/8
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.
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
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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.
PERCENTAGE OF
NUMBER OF OUTSTANDING
NAME SHARES (1) SHARES (2)
---- ------ ------
DFG Corporation 2,911 *
Fleming American Investment Trust 77,925 1.47
Palamundo Securities 2.970 *
Robert Fleming & Co. 154,222 2.91
Robert Fleming Inc. 28,657 *
Scott's Cove Special Credits Fund I, L.P. 9,914 *
Scott's Cove Special Credits Master Fund, Inc. 30,615 *
Seneca Capital L.P. 33,517 *
Seneca Capital International Ltd 56,013 1.06
ZPG Securities 3,256 *
* 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 4,732,000 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 4,732,000 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 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.
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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, including the shares of Common Stock offered hereby.
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.
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
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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 by October 16, 1998 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 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.
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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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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
----
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...........................................................3
Description of Capital Stock...................................................4
Plan of Distribution...........................................................5
Legal Matters..................................................................6
Experts........................................................................7
Certain Forward-Looking Statements.............................................7
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400,000 SHARES
NATIONAL RECORD MART,
INC.
COMMON STOCK
----------------
PROSPECTUS
----------------
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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:
Securities and Exchange Commission
registration fee $ 733.81
Transfer Agent and Registrar Fees $ 1,000.00
Accounting fees and expenses $ 5,000.00
Printing $ 3,500.00
Legal fees and expenses $10,000.00
Listing Fees $ 0
Other $__________
===========
Total Expenses $20,233.81
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.
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.
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ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by
reference herein as part of this Registration Statement:
NUMBER DESCRIPTION
------ -----------
4.1 National Record Mart, Inc.'s Restated Articles of
Incorporation, as amended and restated on September 2, 1993
4.2 Amendment of April 26, 1997 to National Record Mart, Inc.'s
Restated Articles of Incorporation
4.3 Amendment of September 26, 1997 to National Record Mart, Inc.'s
Restated Articles of Incorporation
4.4 National Record Mart, Inc.'s By-Laws, as amended, effective
September 16, 1997
4.5 National Record Mart, Inc.'s Shareholder Protection Rights
Agreement
4.6 Loan and Security Agreement dated June 11, 1993, between the
Company and Barclays Business Credit, Inc.
4.7 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.
4.8 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.
4.9 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.
4.10 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.
4.11 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.
4.12 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.
4.13 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.
4.14 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.
4.15 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.
4.16 Issuer Security and Pledge Agreement, dated as of April 16,
1998, between the Company and Robert Fleming, Inc., as Agent.
4.17 Guarantor Security and Pledge Agreement, dated as of April 16,
1998, between NRM Investments, Inc. and Robert Fleming, Inc.,
as Agent.
4.18 Trademark Collateral Security Agreement, dated as of April 16,
1998, between the Company and Robert Fleming, Inc., as Agent.
4.19 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.
4.20 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.
4.21 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.
4.22 Warrant Agreement dated as of April 16, 1998, between the
Company, the Company as Warrant Agent, Robert Fleming, Inc. and
Seneca Capital L.P.
4.23 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.
23.3 Updated Consent of Ernst & Young LLP.
23.4 Updated Consent of Ernst & Young LLP.
23.5 Updated Consent of Ernst & Young LLP.
II-2
12
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 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; and
(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.
II-3
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
Amendment No. 4 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Pittsburgh,
Commonwealth of Pennsylvania, on January 14, 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 January 14, 1999:
SIGNATURE TITLE
--------- -----
/S/ WILLIAM A. TEITELBAUM Chairman of the Board, President, Chief Executive
- -----------------------------------------------------------------------------------------------------------------
William A. Teitelbaum Officer and Director
/S/ THERESA CARLISE Senior Vice President, Chief Financial Officer, Chief
- -----------------------------------------------------------------------------------------------------------------
Theresa Carlise Accounting Officer and Director
/S/ THERESA CARLISE Director
- -----------------------------------------------------------------------------------------------------------------
Samuel S. Zacharias
By Theresa Carlise
Attorney-in-Fact
/S/ THERESA CARLISE Director
- -----------------------------------------------------------------------------------------------------------------
Irwin B. Goldstein
By Theresa Carlise
Attorney-in-Fact
S-1
14
EXHIBIT INDEX
NUMBER DESCRIPTION METHOD OF FILING
4.1 National Record Mart, Inc.'s Restated Articles Previously filed as Exhibit 3.1 to Annual Report
of Incorporation, as amended and restated on on Form 10-K for the year ended
September 2, 1993 December 31, 1993 and incorporated herein by
reference.
4.2 Amendment of April 26, 1997 to National Record Previously filed as Exhibit 3.2 to Registration
Mart, Inc.'s Restated Articles of Incorporation Statement on Form S-4 (333-27945) and
incorporated herein by reference.
4.3 Amendment of September 26, 1997 to National Previously filed as Exhibit 4.3 to Registration
Record Mart, Inc.'s Restated Articles of Statement on Form S-3 (333-38213) and
Incorporation incorporated herein by reference.
4.4 National Record Mart, Inc.'s By-Laws, as Previously filed as Exhibit 4.4 to Registration
amended, effective September 16, 1997 Statement on Form S-3 (333-38213) and
incorporated herein by reference.
4.5 National Record Mart, Inc.'s Shareholder Previously filed as Exhibit 1 to Form 8-A
Protection Rights Agreement Registration Statement (File No. 1-7410) dated
October 29, 1996, and incorporated herein by
reference.
4.6 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.
4.7 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.
4.8 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.
4.9 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.
4.10 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..
15
4.11 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.
4.12 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.
4.13 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.
4.14 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.
4.15 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.
4.16 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.
4.17 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.
4.18 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.
4.19 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.
16
4.20 Junior Subordination Agreement, dated as of Filed as Exhibit 4.20 to the Company's Annual
April 16, 1998, between Robert Fleming, Inc., as Report on Form 10-K for the fiscal year ended
Agent, and Fleet Capital Corporation, March 28, 1998 and incorporated herein by
acknowledged by the Company and NRM reference.
Investments, Inc.
4.21 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.
4.22 Warrant Agreement dated as of April 16, 1998, Filed with Amendment No. 3.
between the Company, the Company as Warrant
Agent, Robert Fleming, Inc. and Seneca
Capital L.P.
4.23 Registration Rights Agreement dated as of Filed with Amendment No. 3.
April 16, 1998 among the Company, Robert
Fleming Inc. and Seneca Capital L.P.
23.5 Updated Consent of Ernst & Young LLP. Filed herewith.