As filed with the Securities and Exchange Commission on July 9, 2009
Registration Statement
File No.
333-160421333-189515
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO.
Post-Effective Amendment No. 1
TO
FORM
to
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
(Exact nameName of registrantRegistrant as specifiedSpecified in its charter)Charter) |
| |
Delaware | | 20-8819207 |
Indiana (State or other jurisdiction of incorporation or organization)
incorporation)
| | 47-4850538 Identification Number)No.)
|
4151 East
96th96th StreetIndianapolis,
INIndiana 46240
(Address, Including Zip Code, and Telephone Number,
including zip code, and telephone number, including area code,Area Code, of registrant’s principal executive offices)Registrant’s Principal Executive OfficesJerry W. Throgmartin)
Chairman and
Dennis L. May
Chief Executive Officer
and Directorhhgregg, Inc.
4151 East
96th96th StreetIndianapolis,
INIndiana 46240
(Name, address, including zip code,Address, Including Zip Code, and telephone number, including area code,Telephone Number,
Including Area Code, of agentAgent for service)Service)
Copies of all
communicationsCommunications to:
Christina Melendi, Esq.
Bingham McCutchen
Morgan, Lewis & Bockius LLP
399
New York, New York
10022-468910178
Approximate date of commencement of proposed sale to the public:public: From time to time after the effective date of this registration statement.the Registration Statement as determined by market conditions. 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
Formform are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: xbox. [x]
If this Formform is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of 1933, as amended, pleaseearlier 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: ¨offering. [ ]
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, as amended, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨If this Formform is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
[ ]
If this
Formform is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨[ ]
Indicate by check mark whether the
registrantRegistrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated
filer”,filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
|
| | |
Large accelerated filer ¨ [ ] | | Accelerated filer x[x] |
Non-accelerated filer ¨ [ ] | | Smaller reporting company ¨ |
(Do not check if a smaller reporting company) | | Smaller reporting company [ ] |
CALCULATION OF REGISTRATION FEE
| | | | | | | | |
| |
| Title of each class of securities to be registered(1) | | Amount to be
registered(1) | | Proposed maximum
offering price(1) | | Maximum
aggregate offering price(1)(2) | | Amount of
registration fee |
Common Stock, par value $0.0001 per share | | — | | — | | — | | — |
Preferred Stock, par value $0.0001 per share | | — | | — | | — | | — |
Warrants | | — | | — | | — | | — |
Senior or Subordinated Debt Securities(3) | | — | | — | | — | | — |
Guarantees of Debt Securities(4) | | — | | — | | — | | — |
Total | | — | | — | | $200,000,000 | | $11,160(5)(6) |
| |
| |
(1) | There are being registered pursuant to this registration statement such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities and such indeterminate amount of warrants as may be offered from time to time pursuant to the prospectus contained in the registration statement with an aggregate initial offering price not to exceed $200,000,000 or the equivalent thereof in foreign currencies. The securities registered hereunder may be sold by the issuer separately, together or as units with other securities registered hereunder. The securities to be sold by the selling stockholders will be shares of common stock only. There are also being registered hereunder contracts that may be issued by the registrants under which the counterparty may be required to purchase or sell the other securities registered hereunder. These contracts would be issued together with securities registered hereunder. There are also being registered hereunder an indeterminate amount or number of shares of the securities as may be issuable upon conversion or exchange of debt securities, preferred stock or warrants or pursuant to antidilution provisions thereof. If any debt securities are issued at an original issue discount, the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $200,000,000, less the aggregate dollar amount of all securities previously issued pursuant to this registration statement. Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities. |
(2) | Pursuant to Rule 457(o) and Form S-3 General Instruction II.D., which permit the registration fee to be calculated on the basis of the maximum offering price of all securities listed, the table does not specify information as to the amount of any particular security to be registered. |
(3) | The debt securities may be issued without guarantees or may be guaranteed by one or more of the registrants named below under “Table of Additional Registrants.” |
(4) | The guarantees of debt securities may be issued by one or more of the registrants named below under “Table of Additional Registrants” and may be issued without consideration. Pursuant to Rule 457(n), no registration fee is payable with respect to any such guarantees. |
(5) | Calculated pursuant to Rule 457(o) under 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 SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
TABLE OF ADDITIONAL REGISTRANTS*
| | | | |
Exact NameTitle of Additional
Registrant as Specified in its
Charter
Each Class of Securities to be Registered (1) | Amount to be Registered (1) | State or Other JurisdictionProposed Maximum Offering Price Per Unit
| Proposed Maximum Aggregate Offering Price | Amount of
Incorporation or Organization | | I.R.S. Employer Identification No.
Registration Fee |
Gregg Appliances, Inc.
Common Stock, par value $0.0001 per share | − | Indiana− | − | 35-1049508− |
HHG Distributing, LLC
Preferred Stock, par value $0.0001 per share | − | Indiana− | − | 20-2455875 |
* | Gregg Appliances, Inc. is a subsidiary of hhgregg, Inc. and HHG Distributing, LLC is a subsidiary of Gregg Appliances, Inc. The address including zip code, and telephone number, including area code of the additional registrants is 4151 East 96th Street, Indianapolis, IN 46240, (317) 848-8710. |
The information in this prospectus is not complete and may be changed. No securities may be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
Dated: July 9, 2009
PROSPECTUS
$200,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
hhgregg, Inc.
4151 East 96th Street
Indianapolis, IN 46240
(317) 848-8710
We may offer from time to time:
Shares of our Common Stock;
Shares of our Preferred Stock;
Warrants to purchase any of the other securities that may be sold under this prospectus;
Debt securities which may or may not be guaranteed by one or more of the subsidiaries, Gregg Appliances, Inc. and HHG Distributing, LLC; and
Any combination of these securities.
Selling stockholders may also offer shares of our common stock from time to time in connection with this offering. The securities we and/or selling stockholders offer will have an aggregate public offering price of up to $200,000,000 million. We will provide specific terms of any offering, including the price to the public of the securities, in supplements to this prospectus. These securities may be offered separately or together in any combination and as separate series. You should read this prospectus and any applicable prospectus supplement and free writing prospectus carefully before you invest in our securities.
We and/or selling stockholders may sell these securities on a continuous or delayed basis directly, through agents, dealers or underwriters as designated from time to time, or through a combination of these methods. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”. We and/or selling stockholders, as applicable, reserve the sole right to accept, and together with any agents, dealers and underwriters, reserve the right to reject, in whole or in part, any proposed purchase of securities. If any agents, dealers or underwriters are involved in the sale of any securities, the applicable prospectus supplement will set forth any applicable commissions or discounts. Our net proceeds, and the net proceeds of any selling stockholders, if applicable, from the sale of securities also will be set forth in the applicable prospectus supplement. The prospectus supplement will also contain more specific information about the offering, including the names of any selling stockholders, if applicable.
Our common stock is listed on the New York Stock Exchange under the symbol “HGG”.
INVESTING IN OUR SECURITIES INVOLVES RISKS.
SEE “RISK FACTORS” ON PAGE 4.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2009
TABLE OF CONTENTS
| | − |
ABOUT THIS PROSPECTUS
Warrants | − | 2− | − | − |
| Senior or Subordinated Debt Securities | − | − | − | − |
| Guarantees of Debt Securities | − | − | − | − |
| Total | − | − | − | − |
In this prospectus, “hhgregg,” “we,” “us,” and “our” refer to hhgregg, Inc.
You should rely only on information contained or incorporated by reference in this prospectus. Neither we nor selling stockholders have authorized any person to provide you with information that differs from what is contained or incorporated by reference in this prospectus. If any person does provide you with information that differs from what is contained or incorporated by reference in this prospectus, you should not rely on it. This prospectus is not an offer to sell or the solicitation of an offer to buy any securities other than the securities to which it relates, or an offer of solicitation in any jurisdiction where offers or sales are not permitted. The information contained in this prospectus is accurate only
Explanatory Note
Effective as of
the date11:59 p.m. on August 31, 2015 (the “Effective Time”), hhgregg, Inc., a Delaware corporation (the “Company”), changed its state of
this prospectus, even though this prospectus may be delivered or shares may be sold under this prospectus onincorporation from Delaware to Indiana. This reincorporation was effectuated by a
later date. Our business, financial condition, results of operation and prospects may have changed since those dates.About This Prospectus
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under the shelf registration process, we may from time to time, offer and sell to the public any or allmerger (the “Reincorporation Merger”) of the securities described in the registration statement in one or more offerings,Company with and the selling stockholders may from time to time offer and sell shares of our common stock in one or more offerings.
This prospectus provides you withinto hhgregg Indiana, Inc., an Indiana corporation (“hhgregg Indiana”), then a general descriptionwholly owned Indiana subsidiary of the securities we and/or sellingCompany established for such purpose. At the Effective Time, hhgregg Indiana changed its name to “hhgregg, Inc.” The Reincorporation Merger was approved by the requisite vote of stockholders may offer. Each time securities are offered, we orat the selling stockholders, if applicable, will provide a prospectus supplement that will describeCompany’s Annual Meeting of Stockholders held on August 4, 2015. hhgregg Indiana is deemed to be the specific amounts, prices, and termssuccessor issuer of the securities we offer. The prospectus supplement will contain more specific information about the offering, including the names of any selling stockholders, if applicable. The prospectus supplement also may add, update, or change information contained in this prospectus. This prospectus, together with applicable prospectus supplements, includes all material information relating to this offering. If there is any inconsistency between the information in this prospectus and the information in the accompanying prospectus supplement, you should rely on the information in the prospectus supplement. Please carefully read both this prospectus and any prospectus supplement together with the additional information described belowCompany under the section entitled “Incorporation of Certain Documents by Reference.”
We and/or selling stockholders may sell the securities to or through underwriters, dealers, or agents or directly to purchasers. We and our agents and the selling stockholders reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. A prospectus supplement, which we or the selling stockholders will provide each time securities are offered, will provide the names of any underwriters, dealers or agents involved in the sale of the securities, and any applicable fee, commission, or discount arrangements with them.
Special Note Regarding Forward-Looking Statements
Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21ERule 12g-3 of the Securities Exchange Act of 1934, as amended or(the “Exchange Act”). The Company and hhgregg Indiana, as issuer and successor issuer, respectively, under Rule 12g-3 of the Exchange Act, provide a “safe harbor” for forward-looking statementsare collectively referred to encourage companies to provide prospective information about their companies. Some of the statements in this document and any documents incorporated by reference constitute “forward-looking statements” within the meaning of Section 21E of the Exchange Act. These statements relate to future events or our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our businesses or our industries’ actual results, levels of activity, performance or achievements to be materially different from those expressed or implied by any forward-looking statements. Such statements include, in particular, statements about our plans, strategies, prospects, changes, outlook and trends in our business and the markets in which we operate under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “could,” “would,” “should,” “expect,” “plan,” “anticipate,” “intend,” “tends,” “believe,” “estimate,” “predict,” “potential” or “continue” or the negative of those terms or other comparable terminology. These statements are only predictions. Actual events or results may differ materially because of market conditions in our industries or other factors. The forward-looking statements are made as of the date of this document or the date of the documents incorporated by reference in this document,herein as the case may be, and we assume no obligation to update the forward-looking statements or to update the reasons why actual results could differ from those projected in the forward-looking statements. Some of the key factors that could cause actual results to differ from our expectations are:
“Registrant.” the effect of general and regional economic and employment conditions on our net sales;
competition in existing, adjacent and new metropolitan markets;
changes in customer preferences;
our ability to effectively manage and monitor our operations, costs and service quality;
our reliance on a small number of suppliers;
rapid inflation or deflation in core product prices;
the failure of manufacturers to introduce new products and technologies;
customer acceptance of new technology;
our dependence on our key management personnel and our ability to attract and retain qualified sales personnel;
our ability to negotiate with our suppliers to provide product on a timely basis at competitive prices;
the identification and acquisition of suitable sites for our stores and the negotiation of acceptable leases for those sites;
fluctuation in seasonal demand;
our ability to maintain our rate of growth and penetrate new geographic areas;
our ability to locate suitable new store sites;
our ability to obtain additional financing and maintain our credit facilities;
our ability to maintain and upgrade our information technology system;
the effect of a disruption at our central distribution centers;
changes in cost for print, radio and television advertising; and
changes in trade regulation, currency fluctuations and prevailing interest rates.
Other factors that could cause actual results to differ from those implied by the forward-looking statements are more fully described in the “Risk Factors” section and elsewhere herein. Given these risks and uncertainties, you are cautioned not to place undue reliance on these forward looking statements. The forward looking statements included herein are made only as of the date hereof. We do not undertake and specifically decline any obligation to update any of these statements or to publicly announce the results of any revisions to these statements to reflect future events or developments.
Our Company
We are a specialty retailer of consumer electronics, home appliances, mattresses and related services operating under the names hhgregg™ and Fine Lines™. We offer extensive brand and model selections of digital televisions and appliances, which we sell at competitive prices. We distinguish ourselves from our competitors by employing an extensively trained, commissioned sales force that serves our customers with a consultative and educational sales approach. We also distinguish ourselves by offering same-day delivery on many of our products. As of March 31, 2009, we operated 110 stores in Alabama, Florida, Georgia, Indiana, Kentucky, North Carolina, Ohio, South Carolina and Tennessee.
We design our stores to be visually appealing to our customers and to highlight our premium selection of consumer electronics and appliances. We utilize flat panel television display walls, appliance displays and digital product centers to showcase our broad selection of products with advanced features and functionality. We carry over 100 models of flat panel televisions and 350 models of appliances. Our typical stores average 30,000 square feet and are located in power centers or freestanding locations in high traffic areas, as close as feasible to our major competitors. We drive store traffic and enhance our brand recognition through year-round television advertising, weekly newspaper inserts, direct mail, e-mail and web promotions.
We are a Delaware corporation and the address of our principal executive officesRegistrant is 4151 East 96th Street, Indianapolis, Indiana 46240. Our telephone number is 317-848-8710 and our website is www.hhgregg.com. Please note that any references to www.hhgregg.com in the registration statement andfiling this prospectus are inactive textual references only and that the information contained in hhgregg’s website is neither incorporated by reference into this registration statement or prospectus nor intended to be used in connection with this offering.
Risk Factors
An investment in our securities is risky. Prior to making a decision about investing in our securities, you should carefully consider the specific risks discussed in our other filings with the SEC, including our Annual Report on Form 10-K for the fiscal year ended March 31, 2009, which are incorporated by reference in this prospectus, together with all of the other information contained in this prospectus, any applicable prospectus supplement, or otherwise incorporated by reference in this prospectus. The risks and uncertainties described in our SEC filings are not the only ones facing us. Additional risks and uncertainties not presently known to us, or that we currently see as immaterial, may also harm our business. If any of the risks or uncertainties described in the applicable prospectus supplement or our SEC filings or any such additional risks and uncertainties actually occur, our business, results of operations, cash flows and financial condition could be materially and adversely affected. In that case, the trading price of our common stock could decline, and you might lose all or part of your investment.
Ratio of Earnings to Fixed Charges
If we offer debt securities and/or preference equity securities under this prospectus, then we will, at that time, provide a ratio of earnings to fixed charges and/or ratio of combined fixed charges and preference dividends to earnings, respectively, in the applicable prospectus supplement for such offering.
Use of Proceeds
We intend to use the net proceeds from any sale of securities by us for working capital, store growth and other general corporate purposes. In the case of a sale of common stock by any selling stockholders, we will not receive any of the proceeds from such sale.
General Description of Securities That We May Sell
We may offer and sell, at any time and from time to time:
Shares of our common stock, par value $.0001 per share;
Shares of our preferred stock, par value $.0001 per share;
Warrants to purchase any of the other securities that may be sold under this prospectus;
Our debt securities, in one or more series, which may be senior debt securities or subordinated debt securities and which may be guaranteed by one or more of the subsidiaries identified in this prospectus, in each case consisting of notes or other unsecured evidences of indebtedness; or
Any combination of these securities.
Selling stockholders may also offer shares of our common stock from time to time in connection with this offering. The terms of any securities offered will be determined at the time of sale. We may issue debt securities that are exchangeable for and/or convertible into common stock or any of the other securities that may be sold under this prospectus. When particular securities are offered, a supplement to this prospectus will be filed with the SEC, which will describe the terms of the offering and sale of the offered securities.
Description of Capital Stock
The following description of our capital stock is not complete and is subject to and qualified in its entirety by our certificate of incorporation and bylaws, which are included as exhibitsPost-Effective Amendment No. 1 to the registration statement on Form S-3, File No. 333-189515 (the “Registration Statement”), pursuant to Rule 414 under the Securities Act of which this prospectus forms1933, as amended (the “Securities Act”), solely to update the Registration Statement as a part, and by the provisions of applicable Delaware law.
Authorized and Outstanding Shares
Our authorized capital stock consists of 150,000,000 shares of common stock, par value $.0001 per share, and 10,000,000 shares of preferred stock, par value $.0001 per share.
As of July 1, 2009, there were 33,163,870 shares of our common stock outstanding, which were held by 95 stockholders of record.
Common Stock
Holders of shares of our common stock are entitled to one vote for each share held of record on all matters on which stockholders are entitled or permitted to vote. Our certificate of incorporation and bylaws provide that, except as otherwise provided by law, the affirmative vote of a majorityresult of the shares entitledRegistrant’s reincorporation in the State of Indiana from the State of Delaware via the Reincorporation Merger.
In accordance with Rule 414(d) under the Securities Act, the Registrant, now as successor issuer to
vote, present in person or represented by proxy at a meeting at which a quorum is present, shall be the
actCompany pursuant to Rule 12g-3 of the
stockholders.Delaware law requiresExchange Act, hereby expressly adopts the affirmative vote of a majorityRegistration Statement, as modified by this Post-Effective Amendment No. 1, as its own registration statement for all purposes of the outstanding shares entitled to vote thereon to authorize certain extraordinary actions, suchSecurities Act and the Exchange Act, as mergers, consolidations, dissolutions ofupdated by subsequent filings under the corporation or an amendmentExchange Act, including, but not limited to, the certificate of incorporation of the corporation. There is no cumulative voting for the election of directors. Upon a liquidation, our creditors and any holders of preferred stock with preferential liquidation rights will be paid before any distribution of holders of our common stock. The holders of our common stock would be entitled to receive a pro rata amount per share of any excess distribution. Holders of common stock have no preemptive or subscription rights. There are no conversion rights, redemption rights, sinking fund provisions or fixed dividend rights with respect to the common stock. All outstanding shares of our common stock are fully paid and nonassessable.
Preferred Stock
Our certificate of incorporation empowers our board of directors to issue up to 10,000,000 shares of preferred stock from time to time in one or more series. The board also may fix the designation, privileges, preferences and rightsRegistrant’s most recent annual report on Form 10-K and the qualifications, limitations and restrictions of those shares, including dividend rights, conversion rights, voting rights, redemption rights, terms of sinking funds, liquidation preferences and the number of shares constituting any series or the designation of the series. Terms selected could decrease the amount of earnings and assets available for distribution to holders of common stock or adversely affect the rights and powers, including voting rights, of the holders of our common stock without any further vote or action by the stockholders. The rights of holders of our common stock will be subject to, and may be adversely affected by, the rights of the holders of any preferred shares that may be issued in the future. Additionally, the issuance of preferred stock may have the effect of decreasing the market pricedescription of the common stock and may adversely affect the voting and other rights of the holders of common stock. Although there are no shares of preferred stock currently outstanding and we have no present intention to issue any shares of preferred stock, any issuance could have the effect of making it more difficult for a third party to acquire a majority of our outstanding voting stock.
Registration Rights
In addition to rights of sale under Rule 144, as of July 1, 2009 several of our officers, directors and stockholders that hold an aggregate of approximately 18.5 million shares of outstanding common stock have registration rights which enable them to require us to file a registration statement registering their shares for resale to the public.
Pursuant to the registration rights agreement, we agreed to indemnify the selling stockholders against liabilities arising out of any actual or alleged material misstatements or omissions in any registration statement that we have filed relating to the offering of common stock by the selling stockholders, other than liabilities arising from information supplied by the selling stockholders for use in connection with the registration statement or prospectus. The selling stockholders have agreed to indemnify us against liabilities arising out of any actual or alleged material misstatments or omissions in any registration statement or prospectus in connection with the registration rights to the extent that the misstatements or omissions were made in reliance upon written information furnished to us or by the selling stockholders expressly for use in connection with the registration statement or prospectus.
Under the registration rights agreement, in general, we are responsible for paying the expenses of registration (other than underwriting discounts and commissions on the sale of shares), including the fees and reasonable expenses of counsel to the selling stockholders.
Potential Anti-takeover Effect of Delaware Law, Our Certificate of Incorporation and Bylaws
We are subject to the “business combinations” provisions of the Delaware General Corporation Law. In general, such provisions prohibit a publicly held Delaware corporation from engaging in various “business combination” transactions with any “interested stockholder” for a period of three years after the date of the transaction in which the person became an “interested stockholder,” unless:
the board of directors approved the transaction before the “interested stockholder” obtained such status;
upon consummation of the transaction that resulted in the stockholder becoming an “interested stockholder,” the “interested stockholder” owned at least 85% of our outstanding common stock at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned (i) by persons who are directors and are also officers and (ii) employee stock plans in which the participants do not have the right to determine confidentially whether shares held subject to the plans will be tendered in the tender or exchange offer; or
on or subsequent to such date, the business combination or merger is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by two-thirds of the holders of the outstanding common stock not owned by the “interested stockholder”.
A “business combination” is defined to include mergers, asset sales and other transactions resulting in financial benefit to a stockholder. In general, an “interested stockholder” is a person who, together with affiliates and associates, owns 15% or more of a corporation’s voting stock or within three years did own 15% or more of a corporation’s voting stock. The statute could prohibit or delay mergers or other takeover or change in control attempts.
Provisions of our certificate of incorporation and bylaws providing that only a majority of the board of directors, the chairman of the board of directors or the chief executive officer may call special meetings of stockholders may have the effect of making it more difficult for a third party to acquire control of us, or of discouraging a third party from attempting to acquire control of us. Amendment of these provisions requires the affirmative vote of holders of 66 2/3% of our outstanding capital stock. In addition, our certificate of incorporation allows our board of directors to issue up to 10,000,000 shares of preferred stock that could have, when issued, voting rights or preferences that could impede the success of any hostile takeover, or delay a change in control or change in our management.
Listing
Our common is listed on the New York Stock Exchange under the trading symbol “HGG”.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is National City Bank. The transfer agent’s address is 629 Euclid Avenue – Suite 635, Cleveland, Ohio 44114 and the telephone number is 888-622-6757.
Description of Warrants
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the warrants that we may offer and sell under this prospectus and any related warrant agreements and warrant certificates. While the terms we have summarized below will apply generally to any warrants offered, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement, which may differ from the terms we describe below.
General
We may issue, and we may offer and sell, together with other securities or separately, warrants to purchase our preferred stock, debt, common stock or other securities. Warrants may be issued directly to the purchasers of the warrants or under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, allRegistrant as set forth in the applicable prospectus supplement. Registration Statement on Form 8-A12B/A, warrant agent will act solely as our agent in connectionfiled by the Registrant with the warrants of the series being offered and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The prospectus supplement will describe, among other things, the following terms, where applicable, of warrants that we may offer:
the title of the warrants;
the designation, amount and terms of the securities for which the warrants are exercisable and the procedures and conditions relating to the exercise of such warrants;
the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each such security;
the price or prices at which the warrants will be issued;
the aggregate number of warrants;
any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants;
the price or prices at which the securities purchasable upon exercise of the warrants may be purchased, including provisions for adjustment of the exercise price of the warrant;
if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable;
if applicable, a discussion of the material U.S. federal income tax considerations applicable to the exercise of the warrants;
any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants;
the date on which the right to exercise the warrants shall commence, and the date on which the right shall expire; and
the maximum or minimum number of warrants which may be exercised at any time.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder thereof to purchase for cash the amount of debt securities or number of shares of preferred stock or common stock at the exercise price as will in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Warrants may be exercised as set forth in the applicable prospectus supplement relating to the warrants offered thereby. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the purchased securities. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
Enforceability of Rights of Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility
in the case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, that holder’s warrants.
Description of Debt Securities and Guarantees
We may issue debt securities in one or more distinct series. This section summarizes the terms of the debt securities that are common to all series. Most of the financial terms and other specific terms of any series of debt securities that we offer will be described in a prospectus supplement to be attached to the front of this prospectus. Since the terms of specific debt securities may differ from the general information we have provided below, if any information contained in a prospectus supplement contradicts the information below, you should relyExchange Commission (the “SEC”) on information in the prospectus supplement.
As required by federal law for all bonds and notes of companies that are publicly offered, the debt securities are governed by a document called an “indenture”. An indenture is a contract between us and a financial institution acting as trustee of holders of the debt securities on behalf of the holders of the debt securities. The trustee has two main roles. First, the trustee can enforce the rights of holders of the debt securities against us if we default. There are some limitations on the extent to which the trustee acts on behalf of holders of the debt securities, described later under “—Events of Default.” Second, the trustee performs certain administrative duties for us.
The debt securities will be either senior debt securities or subordinated debt securities. We will issue the senior debt securities under a senior indenture between us and a trustee. We will issue the subordinated debt securities under a subordinated indenture between us and the same or another trustee. The senior indenture and the subordinated indenture are collectively referred to in this prospectus as the indenture, and each of the trustee under the senior indenture and the trustee under the subordinated indenture are referred to in this prospectus as the trustee. Any debt securities issued by us may be guaranteed by one or more of our subsidiaries, each of which we refer to in this section as a guarantor. Unless otherwise specified in a prospectus supplement the debt securities will be direct unsecured obligations of hhgregg.
Because this section is a summary, it does not describe every aspect of the debt securities, the indenture, and any guarantee of any debt securities. We urge you to read the indenture because it, and not this description, defines your rights as a holder of debt securities. For example, in this section, we use capitalized words to signify terms that are specifically defined in the indenture. Some of the definitions are repeated in this prospectus, but for the rest you will need to read the indenture. We have filed the form of the indenture as an exhibit to the registration statement that we have filed with the SEC. See “Where You Can Find More Information,” below, for information on how to obtain a copy of the indenture.
General
Each series of debt securities, unless specified otherwise in the prospectus supplement, will be unsecured obligations of hhgregg. Any senior unsecured debt securities that we issue will rank equally with all other unsecured and unsubordinated indebtedness of us. Any subordinated debt securities that we issue will be expressly subordinated in right of payment to the prior payment in full of our senior indebtedness. In addition, unless otherwise specified in the applicable prospectus supplement the debt securities will be structurally subordinated to all existing and future liabilities, including trade payables, of our subsidiaries that do not guarantee the debt securities, and the claims of creditors of those subsidiaries, including trade creditors, will have priority as to the assets and cash flows of those subsidiaries.
Any debt securities proposed to be sold under this prospectus and the attached prospectus supplement (“offered debt securities”) and any debt securities issuable upon conversion or exchange of other offered securities (“underlying debt securities”), as well as other unsecured debt securities, may be issued under the indenture in one or more series.
You should read the prospectus supplement for the terms of the offered debt securities, including the following:
the title of the debt securities and whether the debt securities will be senior debt securities or subordinated debt securities of hhgregg;
the total principal amount of the debt securities and any limit on the total principal amount of debt securities of the series;
the price or prices at which hhgregg will offer the debt securities;
if not the entire principal amount of the debt securities, the portion of the principal amount payable upon acceleration of the maturity of the debt securities or how this portion will be determined;
the date or dates, or how the date or dates will be determined or extended, when the principal of the debt securities will be payable;
the interest rate or rates, which may be fixed or variable, that the debt securities will bear, if any, or how the rate or rates will be determined, the date or dates from which any interest will accrue or how the date or dates will be determined, the interest payment dates, any record dates for these payments and the basis upon which interest will be calculated, if other than that of a 360-day year of twelve 30-day months;
any optional redemption provisions;
any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities;
if other than U.S. dollars, the currency or currencies of the debt securities;
whether the amount of payments of principal, premium or interest, if any, on the debt securities will be determined with reference to an index, formula or other method, which could be based on one or more currencies, commodities, equity indices or other indices, and how these amounts will be determined;
the place or places, if any, other than or in addition to The City of New York, of payment, transfer, conversion and/or exchange of the debt securities;
if the denominations in which time offered debt securities will be issued are other than denominations of $1,000 or any integral multiple of $1,000;
the applicability of defeasance provisions of the indenture and any provisions in modification of, in addition to, or in lieu of, any of these provisions;
any provisions granting special rights to the holders of the debt securities upon the occurrence of specified events;
any changes or additions to the events of default or covenants contained in the indenture;
whether the debt securities will be convertible into or exchangeable for any other securities and the applicable terms and conditions;
the terms of any guarantees by any of our subsidiaries;
subordination provisions, if any, that will apply, to the extent different from those set forth below;
the form of note or other instrument representing the debt if not issued in book entry form; and
any other terms of the debt securities.
Covenants
The supplemental indenture with respect to any particular series of debt securities may contain covenants including, without limitation, covenants restricting or limiting:
the incurrence of additional debt, including guarantees, by us and our subsidiaries;
the making of various payments by us and our subsidiaries;
our business activities and those of our subsidiaries;
the issuance of other securities by our subsidiaries;
sale-leaseback transactions;
transactions with affiliates;
the incurrence of liens; and
mergers and consolidations involving us and our subsidiaries.
For purposes of this prospectus, any reference to the payment of principal of or premium or interest, if any, on debt securities will include additional amounts if required by the terms of the debt securities, subject to the maximum offering amount under this prospectus.
The indenture does not limit the amount of debt securities that may be issued thereunder from time to time. The indenture also provides that there may be more than one trustee thereunder, with respect to one or more different series of indenture securities. See “—Resignation of Trustee,” below. At a time when two or more trustees are acting under the indenture, each with respect to only certain series, the term “indenture securities” means the one or more series of debt securities with respect to which each respective trustee is acting. In the event that there is more than one trustee under the indenture, the powers and trust obligations of each trustee described in this prospectus will extend only to the one or more series of indenture securities for which it is trustee. If two or more trustees are acting under the indenture, then the indenture securities for which each trustee is acting would be treated as if issued under separate indentures.
We have the ability to issue indenture securities with terms different from those of indenture securities previously issued and, without the consent of the holders thereof to reopen a previous issue of a series of indenture securities and issue additional indenture securities of that series unless the reopening was restricted when that series was created.
Methods of Calculating and Paying Interest on our Debt Securities
Each series of our debt securities will bear interest at a fixed or variable rate per annum shown on the front cover of the prospectus supplement under which that series is issued.
Provisions Relating Only to the Senior Debt Securities
The senior debt securities will rank equally in right of payment with all of our other senior and unsubordinated debt and senior in right of payment to any of our subordinated debt, including the subordinated debt securities. The senior debt securities will be effectively subordinated to all of our secured debt and to all debt, including trade debt, of our subsidiaries, except as to subsidiaries that guarantee the debt. We will disclose the amount of our secured debt in the prospectus supplement.
Provisions Relating Only to the Subordinated Debt Securities
The subordinated debt securities will rank junior in right of payment to all of our senior indebtedness. Senior indebtedness will be defined to include all notes or other evidences of debt not expressed to be subordinate or junior in right of payment to any of our other debt. The debt will be structurally subordinated to all debt, including trade debt, of our subsidiaries, except as to subsidiaries that guarantee the debt.
If the offered securities are subordinated debt securities, the supplemental indenture may provide that no cash payment of principal, interest and any premium on the subordinated debt securities may be made:
if we fail to pay when due any amounts on any senior indebtedness;
if our property is, or we are, involved in any voluntary or involuntary liquidation or bankruptcy; and
in other instances specified in the supplemental indenture.
Conversion or Exchange Rights
If any series of our debt securities are convertible or exchangeable, the applicable prospectus supplement will specify:
the type of securities into which it may be converted or exchanged;
the conversion price or exchange ratio, or its method of calculation; and
how the conversion price or exchange ratio may be adjusted if our debt securities are redeemed.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, the following will be events of default with respect to any series of debt securities or guarantees:
default for 30 days in the payment when due of interest on the debt securities;
default in payment when due of the principal of or any premium on the debt securities;
default in the performance of or breach of various covenants after applicable notice and/or grace period; and
various events of bankruptcy or insolvency with respect to us.
September 3, 2015. The applicable prospectus supplement will describe any additional events of default.
If an event of default occurs with respect to debt securities of a series then outstanding and is continuing, then the trustee or the holders of not less than 25% in principal amount of the debt securities of that series then outstanding, by a notice in writing to hhgregg (and to the trustee if given by the holders), may, and the trustee at the request of such holders shall, declare the principal amount (or, if the debt securities of that series are original issue discount securities, such portion of the principal amount as may be specified in the terms of that series) of, premium, if any, and accrued interest on all of the debt securities of that series to be due and payable immediately, and the same (or specified portion thereof) shall become immediately due and payable. A declaration of default under the indenture or under other payment obligations could give rise to cross-defaults and acceleration with respect to the debt securities or such other payment obligations.
At any time after a declaration of acceleration with respect to debt securities of any series (or of all series, as the case may be) has been made and before a judgment or decree for payment of the money due has been obtained by the trustee as provided in the indenture, the holders of a majority in principal amount of the debt securities of that series (or of all series, as the case may be) then outstanding, by written notice to hhgregg and the trustee, may rescind such declaration and its consequences under the circumstances specified in the applicable debenture.
The indenture will provide that no such rescission shall affect any subsequent default or impair any right consequent thereon.
With respect to the debt securities of any series, the holders of not less than a majority in principal amount of the debt securities of such series then outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, provided that:
such direction shall not be in conflict with any rule of law or with the indenture;
the trustee may take any other action deemed proper by the trustee which is not inconsistent with such direction; and
the trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the holders of debt securities of such series not consenting.
No holder of any debt security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to the indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
the holder has previously given written notice to the trustee of a continuing event of default with respect to the debt securities of that series;
the holders of not less than 25% in principal amount of the debt securities of that series then outstanding shall have made written request to the trustee to institute proceedings in respect of the event of default in its own name as trustee under the indenture;
such holder or holders have offered to the trustee indemnity reasonably satisfactory to the trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
the trustee for 60 days after its receipt of such notice, request and offer of indemnity, has failed to institute any such proceeding; and
no direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority or more in principal amount of the debt securities of that series then outstanding.
However, no holder of a debt security has the right under the indenture to affect, disturb or prejudice the rights of any other holders of debt securities of the same series, or to obtain or to seek to obtain priority or preference over any other of such holders or to enforce any right under the indenture, except in the manner provided in the indenture and for the equal and ratable benefit of all holders of debt securities of the same series.
Every year we will be required to deliver to the trustee a certificate as to our performance of our obligations under the indenture and as to any defaults.
Mergers, Consolidations and Certain Sale of Assets
We may not
consolidate with or merge into any other person or entity or permit any other person or entity to consolidate with or merge into us in a transaction in which we are not the surviving entity, or
transfer, lease or dispose of all or substantially all of our assets to any other person or entity unless:
the resulting, surviving or transferee entity shall be a corporation organized and existing under the laws of the United States or any state thereof and such resulting, surviving or transferee entity shall expressly assume, by supplemental indenture, executed and delivered in form satisfactory to the trustee, all of our obligations under the debt securities and the indenture;
immediately after giving effect to such transaction (and treating any indebtedness which becomes an obligation of the resulting, surviving or transferee entity as a result of such transaction as having been incurred by such entity at the time of such transaction), no default or event of default would occur or be continuing; and
we shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the indenture.
Modification and Waiver
The indenture will provide that hhgregg and the trustee may amend or supplement the indenture or the debt securities without notice to or the consent of any holder for clarification, corrections, and legal compliance purposes, including as follows:
to cure any ambiguity, defect or inconsistency;
to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
to make any change that does not adversely affect the interests thereunder of any holder;
to qualify the indenture under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act, or to comply with the requirements of the SEC in order to maintain the qualification of the indenture under the Trust Indenture Act.
to evidence the succession of another person to hhgregg and that person’s assumption of hhgregg’s covenants;
to add to hhgregg’s covenants;
to add any additional events of default;
to secure the debt securities;
to establish the form or terms of debt securities;
to evidence the appointment of a successor trustee under the indenture;
to close the indenture with respect to authentication and delivery of additional series of debt securities; or
to supplement the indenture in order to permit the defeasance and discharge of any series of debt securities.
The indenture will provide that hhgregg and the trustee may make modifications and amendments to the indenture, and waive past defaults, with the consent of the holders of not less than a majority in aggregate principal amount at maturity of the outstanding debt securities in a series; provided, however, that no such modification or amendment may, without the consent of each holder affected thereby,
change the stated maturity of the principal of, or any installment of interest on, any debt security;
reduce the principal amount of, or premium, if any, or interest on, any debt security;
reduce the amount of a debt security’s principal that would be due and payable upon a declaration of acceleration, following a default:
change the place of payment of, the currency of payment of principal of, or premium, if any, or interest on, any debt security;
impair the right to institute suit for the enforcement of any payment on or after the stated maturity (or, in the case of a redemption, on or after the redemption date) of any debt security;
adversely affect any right to convert or exchange any debt security that is convertible or exchangeable; or
reduce the stated percentage of outstanding debt securities the consent of whose holders is necessary to modify, or amend the indenture or waive a past default.
Governing Law
Any issued debt securities and the indenture will be governed by the laws of the state of New York.
Concerning the Trustee
The indenture will provide that, except during the continuance of an event of default or default, the trustee will not be liable, except for the performance of such duties as are specifically set forth in such indenture. If an event of default has occurred and is continuing, the trustee will use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
The indenture and provisions of the Trust Indenture Act incorporated by reference in the indenture contain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. The trustee is permitted to engage in other transactions; provided, however, that if it acquires any conflicting interest, it must eliminate such conflict or resign.
Defeasance
The following provisions will be applicable to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant defeasance and full defeasance will not be applicable to that series.
The indenture will provide that we will be deemed to haveregistration fees were paid and will be discharged from any and all obligations in respect of any issued series of debt securities and the provisions of the indenture or will be released from our obligations to comply with covenants relating to those debt securities as described above or in the applicable prospectus supplement, (which may include obligations concerning subordination of our subordinated debt securities) if, among other things:
we have irrevocably deposited with the trustee, in trust, money and/or U.S. Government Obligations (as defined in the indenture) that through the payment of interest and principal in respect of those monies and/or U.S. Government Obligations in accordance with their terms, will provide money in an amount sufficient to pay the principal of, premium, if any, and interest, if any, on the series of debt securities on the stated maturity of such payments and any applicable sinking fund or analogous payments in accordance with the terms of the indenture and the debt securities;
such defeasance shall not result in a breach, or constitute a default, under the indenture or any other material agreement of hhgregg;
we have delivered to the trustee either (i) an opinion of counsel to the effect that holders will not recognize additional income, gain or loss for U.S. federal income tax purposes as a result of hhgregg exercise of the defeasance or covenant defeasance, or (ii) a ruling directed to the trustee received from the Internal Revenue Service to the same effect as the aforementioned opinion of counsel; and
hhgregg has delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that all the conditions precedent to full defeasance have been complied with.
In the event we exercise our option to omit compliance with certain covenants and provisions of the indenture with respect to a series of debt securities and the debt securities are declared due and payable because of the occurrence of an event of default that remains applicable, the amount of money and/or U.S. Government Obligations on deposit with the trustee will be sufficient to pay amounts due on the debt securities at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities at the time of the acceleration resulting from such event of default, however, we will remain liable for such payments.
We cannot defease our obligations to register the transfer or exchange of our debt securities; to replace our debt securities that have been stolen, lost or mutilated; to maintain paying agencies; or to hold funds for payment in trust. We may not defease our obligations if there is a continuing event of default on securities issued under the applicable indenture, or if depositing amounts into trust would cause the trustee to have conflicting interests with respect to other of our securities.
Resignation of Trustee
Each trustee may resign or be removed with respect to one or more series of indenture securities provided that a successor trustee is appointed to act with respect to these series. In the event that two or more persons are acting as trustee with respect to different series of indenture securities under oneoriginal filing of the indentures, eachRegistration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of
the trustees will be a trustee of a trust separateIssuance and
apart from the trust administered by any other trustee.Guarantees
Distribution.
The
debt securities of any series that we issue may be guaranteed by one or more of our subsidiaries. However, the indentures governing our guaranteed debt securities will not require that any of the subsidiaries be a guarantor of any series of guaranteed debt securities. As a result, the guarantors of any series of guaranteed debt securities of each issuer may differ from the guarantors of any other series of guaranteed debt securities of each issuer. In the event we issue a series of guaranteed debt securities, the specific guarantors of the debt securities of that series will be identified in the applicable prospectus supplement. Each subsidiary guarantor of the debt securities is exempt from Exchange Act reporting pursuant to Rule 12h-5 under the Exchange Act as: (i) hhgregg has no independent assets or operations; (ii) the guarantees of the subsidiary guarantors are full and unconditional and joint and several; and (iii) there are no subsidiaries of hhgregg other than the subsidiary guarantors.If we issue a series of guaranteed debt securities, a description of some of the terms of the guarantees of those debt securities will beinformation set forth in the applicable prospectus supplement, including any limitations that may be applicable to the guarantee due to other debt arrangements or otherwise. Unless otherwise provided in the prospectus supplement relating to a series of guaranteed debt securities, each guarantor of the debt securities of such series will unconditionally guarantee the due and punctual payment of the principal of, and premium, if any, and interest, if any, on and any other amounts payable with respect to, each debt security of such series and the due and punctual performance of all of the our other obligations under the applicable indenture with respect to the debt securities of such series, all in accordance with the terms of such debt securities and the applicable indenture.
Notwithstanding the foregoing, unless otherwise provided in the prospectus supplement relating to a series of guaranteed debt securities, the applicable indenture will contain provisions to the effect that the obligations of each guarantor under its guarantees and such indenture shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such guarantor, result in the obligations of such guarantor under such guarantees and such indenture not constituting a fraudulent conveyance or fraudulent transfer under applicable law. However, there can be no assurance that, notwithstanding such limitation, a court would not determine that a guarantee constituted a fraudulent conveyance or fraudulent transfer under applicable law. If that were to occur, the court could void the applicable guarantor’s obligations under that guarantee, subordinate that guarantee to other debt and other liabilities of that guarantor or take other action detrimental to holders of the debt securities of the applicable series, including directing the holders to return any payments received from the applicable guarantor.
The applicable prospectus supplement relating to any series of guaranteed debt securities will specify other terms of the applicable guarantees, which may include provisions that allow a guarantor to be released from its obligations under its guarantee under specified circumstances or that provide for one or more guarantees to be secured by specified collateral.
Unless otherwise expressly stated in the applicable prospectus supplement, each guarantee will be the unsubordinated and unsecured obligation of the applicable guarantor and will rank on a parity in right of payment with all other unsecured and unsubordinated indebtedness and guarantees of such guarantor. Each guarantee (other than a secured guarantee) will be effectively subordinated to all existing and future secured indebtedness
and secured guarantees of the applicable guarantor to the extent of the value of the collateral securing that indebtedness and those guarantees. Consequently, in the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding with respect to any guarantor that has provided an unsecured guarantee of any debt securities, the holders of that guarantor’s secured indebtedness and secured guarantees will be entitled to proceed directly against the collateral that secures that secured indebtedness or those secured guarantees, as the case may be, and such collateral will not be available for satisfaction of any amount owed by such guarantor under its unsecured indebtedness and unsecured guarantees, including its unsecured guarantees of any debt securities, until that secured debt and those secured guarantees are satisfied in full. Unless otherwise provided in the applicable prospectus supplement, the indentures will not limit the ability of any guarantor to incur secured indebtedness or issue secured guarantees.
Unless otherwise expressly stated in the applicable prospectus supplement, each secured guarantee will be an unsubordinated obligation of the applicable guarantor and will rank on a parity in right of payment with all other unsecured and unsubordinated indebtedness and guarantees of such guarantor, except that such secured guarantee will effectively rank senior to such guarantor’s unsecured and unsubordinated indebtedness and guarantees in respect of claims against the collateral securing that secured guarantee.
Global Securities
We may issue debt securities as registered securities in book-entry form only. A global security represents one or any other number of individual debt securities. All debt securities represented by the same global security have the same terms.
Each debt security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purposeitem is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all debt securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary or its nominee, unless special termination situations arise. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all debt securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that has an account with the depositary. Thus, an investor whose security is represented by a global security will not be a holder of the debt security, but only an indirect holder of a beneficial interest in the global security.
As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. The depositary that holds the global security will be considered the holder of the debt securities represented by the global security.
If debt securities are issued only in the form of a global security, an investor should be aware of the following:
an investor cannot cause the debt securities to be registered in his or her name, and cannot obtain certificates for his or her interest in the debt securities, except in the special situations we describe below;
an investor will be an indirect holder and must look to his or her own bank or broker for payments on the debt securities and protection of his or her legal rights relating to the debt securities;
an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the debt securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security. We and the trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way;
DTC requires that those who purchase and sell interests in a global security deposited in its book-entry system use immediately available funds. Your broker or bank may also require you to use immediately available funds when purchasing or selling interests in a global security; and
financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the debt security. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Generally, a global security will be terminated and interests in it will be exchanged for certificates in non-global form, referred to as certificated securities only in the following instances:
if the depositary notifies us and the trustee that it is unwilling or unable to continue as depositary for that global security;
if the depositary ceases to be a clearing agency and we do not appoint another institution to act as depositary within 90 days;
if we determine that we wish to terminate that global security; or
if an event of default has occurred with regard to the debt securities represented by that global security and has not been cured or waived, and the owner of beneficial interests in the global security requests that certificated securities be delivered; we discuss defaults above under “Events of Default”.
The prospectus supplement may list situations for terminating a global security that would apply only to the particular series of debt securities covered by the prospectus supplement. If a global security is terminated, only the depositary, and not we or the applicable trustee, is responsible for deciding the names of the institutions in whose names the debt securities represented by the global security will be registered and, therefore, who will be the holders of those debt securities.
Payment and Paying Agent
Unless specified otherwise in a prospectus supplement, in the event certificated registered debt securities are issued, the holders of certificated registered debt securities will be able to receive payments of principal and of interest on their debt securities at the office of the paying agent. All payments of interest may be received at the offices of such paying agent upon presentation of certificated debt securities and all payments of principal may be received at such offices upon surrender of the debt securities. We also have the option of mailing checks or making wire transfers to the registered holders of the debt securities. Unless specified otherwise in a prospectus supplement, we will maintain a paying agent for the debt securities in the The City of New York at all times that payments are to be made in respect of the debt securities and, if and so long as the debt securities remain outstanding.
Selling Stockholders
Information about selling stockholders, if any, including their identities and the common stock to be registered on their behalf, will be set forth in a prospectus supplement, in a post-effective amendment or in filings we make with the SEC under the Exchange Act that are incorporated by reference into this prospectus.
Allfrom Item 14 of the common stock currently held by the selling stockholders are issued and outstanding as of the date of the filing of theRegistrant’s registration statement of which this prospectus is a part and were acquired in connection with our reorganization in 2007 or in subsequent market purchases. Please refer to “Description of Capital Stock —Registration Rights” for a description of selling stockholders who may offer or sell common stock. Selling stockholders shall not sell any of our common stock pursuant to this prospectus until we have identified such selling stockholders, any relationship any selling stockholder has had with us in the three years prior to any such sale, the total number of shares held by each selling stockholder before and after the sale and the number of shares of common stock being offered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their common stock pursuant to any available exemption from the registration requirements of the Securities Act.
Plan of Distribution
We and/or selling stockholders may sell the securities in and outside the United States through underwriters or dealers, directly to purchasers, including our affiliates, through agents, or through a combination of any of these methods. The prospectus supplement will include the following information:
the terms of the offering;
the names of any underwriters or agents;
the name or names of any managing underwriter or underwriters;
the purchase price of the securities;
the net proceeds from the sale of the securities;
any delayed delivery arrangements;
any underwriting discounts, commissions and other items constituting underwriters’ compensation;
any public offering price;
any discounts or concessions allowed or reallowed or paid to dealers;
any commissions paid to agents; and
any information about selling stockholders, if applicable.
Sale Through Underwriters or Dealers
If underwriters are used in the sale of any of these securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you otherwise in any prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
Some or all of the securities that we offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell these securities for public offering and sale may make a market in those securities, but they will not be obligated to and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used in the sale of securities, we will sell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of the dealers and the terms of the transaction.
Direct Sales and Sales Through Agents
We and/or selling stockholders may sell the securities directly, and not through underwriters or agents. Securities may also be sold through agents designated from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We and/or selling stockholders may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act, as amended, or the Securities Act, with respect to any sale of those securities. We will describe the terms of any such sales in the prospectus supplement.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we and/or selling stockholders may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities from us or selling stockholders, if applicable, at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
Issuance of Common Stock Pursuant to Certain Warrant Exercises
We may also offer and sell our common stock upon the exercise of warrants issued by us, pursuant to the exemption from the registration requirements of the Securities Act provided by Section 3(a)(10) of the Securities Act, in connection with a settlement of litigation against us. No underwriter would be used in connection with such offer and sale of common stock or the exercise of such warrants. We would issue the shares of our common stock directly to the holders of such warrants, upon the exercise of such warrants, from time to time. We will describe the terms of any such offers, sales and warrants in a prospectus supplement.
General Information
We and/or selling stockholders may have agreements with the agents, dealers and underwriters to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers and underwriters may be customers of, engage in transactions with or perform services for, us or selling stockholders in the ordinary course of their businesses.
Legal Matters
The validity of the securities offered hereby will be passed upon for us by Bingham McCutchen LLP, New York, New York.
Experts
The consolidated financial statements of hhgregg, Inc. as of March 31, 2009 and 2008 and for each of the years in the three-year period ended March 31, 2009 and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) as of March 31, 2009 incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended March 31, 2009 have been so incorporated in reliance on the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein and given on the authority of said firm as experts in auditing and accounting.
Where You Can Find More Information
We are subject to the reporting requirements of the Exchange Act and its rules and regulations. The Exchange Act requires us to file reports, proxy statements and other information with the SEC. Copies of these reports, proxy statements and other information can be read and copied at: SEC Public Reference Room, 100 F Street N.E., Washington, D.C. 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330.
The SEC maintains a Web site that contains reports, proxy statements and other information regarding issuers that file electronically with the SEC. These materials may be obtained electronically by accessing the SEC’s Web site at http://www.sec.gov.
We make available, free of charge on our Web site, our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to these reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after we electronically file these documents with, or furnish them to, the SEC. These documents are posted on our Web site at www.hhgregg.com — select the “Investor Relations” link and then the “Financials and SEC Filings” link.
We also make available, free of charge on our Web site, the charters of the Audit Committee, Compensation Committee, Executive Committee and Nominating and Corporate Governance Committee, as well as the Code of Business Conduct and Ethics, Whistleblower Policy, Related Party Policy and the Corporate Governance Guidelines. These documents are posted on our Web site at www.hhgregg.com — select the “Investor Relations” link and then the “Corporate Governance” link.
Copies of any of the above-referenced documents will also be made available, free of charge, upon written request to: hhgregg, Inc., Director of Finance, 4151 E 96th Street, Indianapolis, IN 46240.
Incorporation of Certain Documents by Reference
The SEC allows us to incorporate into this prospectus information we file with the SEC in other documents. The information incorporated by reference is considered to be part of this prospectus and information we later file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, as amended, until all of the shares of common stock that are part of this offering have been sold. The documents we have incorporated by reference are:
Annual Report on Form 10-K for the year ended March 31, 2009;
Definitive Proxy Statement on Schedule 14AS-3, File No. 333-189515 filed with the SEC on June 25, 2009;
21, 2013.Current Report on Form 8-K filed with the SEC on June 2, 2009; and
the descriptionItem 15. Indemnification of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on July 16, 2007.
Notwithstanding the above, information that is “furnished” to the SEC shall not be incorporated by reference or deemed to be incorporated by reference into this prospectus or the related registration statement.
We will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of such person, a copy of any or all of the documents incorporated by reference in this prospectus, other than exhibits to such documents unless such exhibits are specifically incorporated by reference into such documents. Requests may be made in writing or by telephoning: the Company’s Secretary at hhgregg, Inc., 4151 East 96th Street, Indianapolis, IN 46240, (317) 848-8710.
You should read the information in this prospectus together with the information in the documents incorporated by reference.
$200,000,000
hhgregg, Inc.
Common Stock
Preferred Stock
Warrants
Debt Securities
Prospectus
The date of this prospectus is , 2009
PART II
Information Not Required In Prospectus
Item 14. | Other Expenses Of Issuance And Distribution |
The following is an estimate, subject to future contingencies, of the expenses to be incurred by the co-registrants in connection with the issuanceDirectors and distribution of the securities being registered:
| | | |
Registration Fee | | $ | 11,160 |
Legal Fees and Expenses | | | * |
Accounting Fees and Expenses | | | * |
FINRA Filing Fee | | | * |
Trustee Fees and Expenses | | | * |
Blue Sky Fees and Expenses | | | * |
Printing and Engraving Fees | | | * |
Rating Agency Fees | | | * |
Miscellaneous | | | * |
| | | |
TOTAL | | | * |
| | | |
* | These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. |
Item 15. | Indemnification Of Directors And Officers |
hhgregg, Inc.:
Our Certificate of Incorporation provides that all of our directors, officers, employees and agents shall be entitled to be indemnified by us to the fullest extent permitted by Section 145 of the Delaware General Corporation Law, or DGCL.
Article VII of our Certificate of Incorporation provides:
Our company, to the full extent permitted by Section 145 of the DGCL as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. It further provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding or to which the officer or director may be entitled to indemnification hereunder shall be paid by us in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it shall ultimately be determined that he or she is not entitled to be indemnified by us as authorized by our certificate of incorporation.
Officers.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
ourthe Registrant’s directors
officers and
controlling persons pursuant to the provisions of our certificate of incorporation, or otherwise, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against these liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to the court of its appropriate jurisdiction the question whether indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.II-1
We will pay for or reimburse reasonable expenses incurred by a director and may pay for or reimburse reasonable expenses incurred by an officer in defending any action, suit, or proceeding in advance of the final disposition thereof upon (i) receipt of a written affirmation of the director’s or officer’s good faith belief that the director or officer has met the standard of conduct prescribed by Delaware law; (ii) receipt of an undertaking of the director or officer to repay the amount paid by us if it is ultimately determined that the director or officer is not entitled to indemnification by us and (iii) a determination that the facts then known to those making the determination would not preclude indemnification under the DGCL.
In addition, we have entered into customary indemnity agreements with each of our directors and executive officers.
There is no pending litigation or proceeding involving any of our directors, officers, employees or other agents as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director, officer, employee or other agent.
Gregg Appliances, Inc.:
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to this registrant’s directors or officers pursuant to the following provisions, or otherwise, this registrantthe Registrant has been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act, and is therefore unenforceable.
The Indiana Business Corporation Law (the “IBCL”) permits an Indiana corporation to indemnify its directors and officersan individual made a party to a proceeding because he or she was a director or officer of the corporation from liability for his or her conduct if such conduct was in good faith, and he or she reasonably believed when acting in his or her official capacity with the corporation, that such conduct was in the corporation’s best interest. If the individual was not acting in his or her official capacity with the corporation, then indemnification is permitted forif such conduct was in good faith conduct with the reasonable beliefand he or she reasonably believed that such conduct was at least not opposed to the best interest of the corporation. In the case of any criminal proceeding, the individual either had to have reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful. Unless limited by its articles of incorporation, a corporation must indemnify a director or officer who is wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director or officer is a party by virtue of being a director or officer of the corporation, against reasonable expenses incurred by the director or officer in connection with the proceeding. Indemnification can be made in advance of
In addition, under the
final disposition ofIBCL, a
proceeding if certain procedural requirements are met.This registrant’s Amended and Restated Articles of Incorporation require the full indemnification of this registrant’s directors and permit full or partial indemnification of this registrant’s officers or any individuals serving at this registrant’s request as a director, officer, partner or trustee of another foreign or domestic corporation partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise whether or not for profit, against liability and expenses, including attorneys’ fees, incurred by him or her arising out of any claim or action, civil, criminal, administrative or investigative in which they become involved by reason of being or having been in any such capacity. To be entitled to indemnification these persons must have met the standard of conduct for indemnification specified in the Indiana Business Corporation Law, and described above.
This registrant willmay pay for or reimburse reasonable expenses incurred by a director and may pay for or reimburse reasonable expenses incurred by an officer in defendingwho is a party to any claim, action, suit, or proceeding in advance of the final disposition thereof upon (i) receipt of a written affirmation of the director’s or officer’s good faith belief that the director or officer has met the standard of conduct prescribed by Indiana law; (ii) receipt of ana written undertaking of the director or officer to repay the advanced amount paid by this registrant if it is ultimately determined that the director or officer isdid not entitled to indemnificationmeet the standard of conduct prescribed by this registrantIndiana law and (iii) a determination that the facts then known to those making the determination would not preclude indemnification under the Indiana Business Corporation Law.
II-2
IBCL.
The Registrant’s Amended and Restated Articles of Incorporation require the Registrant to indemnify any person (and the estate, heirs, and personal representatives of such person) who is or was a director, officer, employee, or agent of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee, agent, or fiduciary of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other organization or entity, whether for profit or not against liability and reasonable expenses, including attorneys’ fees, incurred by him or her in connection with or resulting from any pending, threatened or completed claim, action, suit or proceeding and all appeals thereof (whether brought by or in the right of the Registrant or any other corporation or otherwise), civil, criminal, administrative or investigative, formal or informal, in which they become involved by reason of being or having been in any such capacity. To be entitled to indemnification these persons must have met the standard of conduct for indemnification specified in the IBCL, and described above.
In addition, we have entered or will enter into customary indemnity agreements with each of our directors.
In addition, in the ordinary course of our business this registrantthe Registrant from time to time enters into contracts under which this registrantthe Registrant and its directors and officers are provided with standard rights of indemnification against
liability that they may incur in their capacities as such and in connection with activities performed under the terms of such contracts.
Item 16. Exhibits.
| | |
Exhibit
Number
| | |
Exhibit
Number | | Description |
| |
| 1.1 | | Form of Underwriting Agreement* |
| |
| 3.1 | | CertificateAmended and Restated Articles of Incorporation of hhgregg, Inc.(1) |
| |
| 3.2 | | Amended and Restated By-Laws of hhgregg, Inc.(1) |
| |
| 3.3 | | Second Amended and Restated Articles of Incorporation of Gregg Appliances, Inc. (2) |
| |
| 3.4 | | Second Amended and Restated By-Laws of Gregg Appliances, Inc. (2) |
| |
| 3.5 | | Articles of Organization of HHG Distributing, LLC (2) |
| |
| 3.6 | | Operating Agreement of HHG Distributing, LLC (2) |
| |
| 4.1 | | Specimen common stock certificate(2)certificate (1) |
| |
| 4.2 | | Form of Senior or Subordinated Indenture***Indenture (2) |
| |
| 4.3 | | Form of Senior Debt Security* |
| |
| 4.4 | | Form of Subordinated Debt Security* |
| |
| 4.5 | | Form of CertificateArticles of Designation ofAmendment for Preferred Stock* |
| |
| 4.6 | | Form of Certificate for Preferred Stock* |
| |
| 4.7 | | Form of Warrant* |
| |
| 4.8 | | Form of Warrant Agreement* |
| |
| 5.1 | | Opinion of Bingham McCutchen LLP (2) |
| |
| 5.2 | | Opinion of Faegre Baker Daniels LLP*** |
| | |
| 12.1 | | Computation of Ratio/Deficiency of Earnings to Fixed Charges*Charges (2) |
| |
| 23.1 | | Consent of KPMG LLP, Independent Registered Public Accounting Firm** |
| |
| 23.2 | | Consent of Bingham McCutchen LLP (included in Exhibit 5.1)* (2) |
| |
| 23.3 | | Consent of Faegre Baker Daniels LLP (included in Exhibit 5.2)** |
| | |
| 24 | | Power of Attorney***Attorney (2) |
| |
| 25.1 | | Form T-1 Statement of Eligibility of Trustee for Senior or Subordinated Indenture under the Trust Indenture Act of 1939* |
|
| |
| * | To be filed with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement. |
| (1) | Incorporated by reference to the same-numbered exhibit to Form S-1 (Registration No. 333-142181)8-K, filed by the Registrant with the SEC on April 18, 2007.September 3, 2015.
|
| (2) | Incorporated by reference to the same-numbered exhibit to Amendment No. 2 to Form S-1S-3 (File No. 333-142181)333-189515) filed by the Registrant with the SEC on June 28, 2007.21, 2013.
|
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Sectionsection 10(a)(3) of the Securities Act of
1933.1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
Registration Statementregistration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
Registration Statement.registration statement. Notwithstanding
II-3
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 percent 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 the registration statement or any material change to such information in the registration
statement.statement;
provided,Provided, however that, that: paragraphs (a)(1)(l)(i), (a)(1)(l)(ii) and (a)(1)(l)(iii) aboveof this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Sectionsection 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the Registrant is relying on Rule 430B:
(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Sectionsection 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or (ii) If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statementII-4
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities thesecurities:
The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
That,
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to
Sectionsection 13(a) or
section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
To
(c) The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
(d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions,
described in Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-5
Signatures
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrantRegistrant 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
Post-Effective Amendment
No. 1 to
the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Indianapolis,
stateState of Indiana, on
July 9, 2009.this 8th day of September, 2015. | | |
HHGREGG, INC. |
| |
By: | | /S/ JERRY W. THROGMARTIN
|
| | Jerry W. Throgmartin
Chief Executive Officer
(Principal Executive Officer)
|
| |
By: | | /S/ JEREMY J. AGUILAR
|
| | Jeremy J. Aguilar
Interim Chief Financial Officer
(Principal Financial and Accounting Officer)
|
HHGREGG, INC.
By: /s/ Dennis L. May
Name: Dennis L. May
Title: Chief Executive Officer
(Principal Executive Officer)
By: /s/ Robert J. Riesbeck
Name: Robert J. Riesbeck
Title: Chief Financial Officer
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933,
as amended, this
Post-Effective Amendment
No. 1 to
the Registration Statement has been signed by the following persons in the capacities and on the dates
as indicated.
|
| | | |
Signature
| | Title
| |
| Signature | | Title | Date |
| | |
/S/ JERRY W. THROGMARTIN
Jerry W. Throgmartin
| | Chairman and |
/s/ Dennis L. May
| | President, Chief Executive Officer (Principal Executive Officer) and Director | | July 9, 2009September 8, 2015 |
| | |
/S/ JEREMY J. AGUILAR
Jeremy J. Aguilar
Dennis L. May | | Interim | |
| | |
| /s/ Robert J. Riesbeck | Chief Financial Officer (Principal FinancialFinancing and Accounting Officer) | | July 9, 2009September 8, 2015 |
| | |
**
Dennis L. May
Robert J. Riesbeck | | President and Chief Operating Officer and Director |
| | July 9, 2009 |
| /s/ Gregory M. Bettinelli | Director | September 8, 2015 |
**
LawrenceGregory M. Bettinelli
| | |
| | |
/s/ William P. CastellaniCarmichael | Director | September 8, 2015 |
| William P. Carmichael | | |
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Lawrence P. Castellani | | |
**
Benjamin D. Geiger
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Benjamin D. Geiger | | |
**
John M. Roth
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Catherine A. Langham | | |
**
Charles P. Rullman
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| John M. Roth | | |
**
Michael L. Smith
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| | |
**
Peter M. Starrett | |
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Kathleen C. Tierney | | |
**
Darell E. Zink
| | |
| * | | Director | | July 9, 2009 |
| | September 8, 2015 |
| |
**By:Darell E. Zink | | /S/ JERRY W. THROGMARTIN
|
| | Jerry W. Throgmartin, Power of Attorney |
* By: /s/Dennis L. May
Dennis L. May
As attorney-in-fact
Signatures
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrantRegistrant 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
Post-Effective Amendment
No. 1 to
the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Indianapolis,
stateState of Indiana, on
July 9, 2009.this 8th day of September, 2015. | | |
GREGG APPLIANCES, INC. |
| |
By: | | /S/ JERRY W. THROGMARTIN
|
| | Jerry W. Throgmartin
Chief Executive Officer
(Principal Executive Officer)
|
| |
By: | | /S/ JEREMY J. AGUILAR
|
| | Jeremy J. Aguilar
Interim Chief Financial Officer
(Principal Financial and Accounting Officer)
|
GREGG APPLIANCES, INC.
By: /s/ Dennis L. May
Name: Dennis L. May
Title: Chief Executive Officer
(Principal Executive Officer)
By: /s/ Robert J. Riesbeck
Name: Robert J. Riesbeck
Title: Chief Financial Officer
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
| | | | |
Signature
| | Title
| | Date
|
| | |
/S/ JERRY W. THROGMARTIN
Jerry W. Throgmartin
Signature | | Chairman andTitle | | Date |
| | |
/s/ Dennis L. May
| | President, Chief Executive Officer (Principal Executive Officer) and Director | | July 9, 2009September 8, 2015 |
| | |
/S/ JEREMY J. AGUILAR
Jeremy J. Aguilar
Dennis L. May | | Interim | |
| | |
| /s/ Robert J. Riesbeck | Chief Financial Officer (Principal Financial and Accounting Officer) | | July 9, 2009September 8, 2015 |
| | |
**
Dennis L. May
Robert J. Riesbeck | | President and Chief Operating Officer and Director |
| | July 9, 2009 |
| /s/ Gregory M. Bettinelli | Director | September 8, 2015 |
**
LawrenceGregory M. Bettinelli
| | |
| | |
/s/ William P. CastellaniCarmichael | Director | September 8, 2015 |
| William P. Carmichael | | |
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Lawrence P. Castellani | | |
**
Benjamin D. Geiger
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Benjamin D. Geiger | | |
**
John M. Roth
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Catherine A. Langham | | |
**
Charles P. Rullman
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| John M. Roth | | |
**
Michael L. Smith
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| | |
**
Peter M. Starrett | | |
| | |
| * | | Director | | July 9, 2009September 8, 2015 |
| Kathleen C. Tierney | | |
**
Darell E. Zink
| | |
| * | | Director | | July 9, 2009 |
| | September 8, 2015 |
| |
**By:Darell E. Zink | | /S/ JERRY W. THROGMARTIN
|
| | Jerry W. Throgmartin, Power of Attorney |
* By: /s/Dennis L. May
Dennis L. May
As attorney-in-fact
Signatures
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrantRegistrant 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
Post-Effective Amendment
No. 1 to
the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Indianapolis,
stateState of Indiana, on
July 9, 2009.this 8th day of September, 2015. | | |
HHG DISTRIBUTING, LLC |
| |
By: | | /S/ JERRY W. THROGMARTIN
|
| | Jerry W. Throgmartin
Chief Executive Officer
(Principal Executive Officer)
|
HHG DISTRIBUTING, LLC
By: /s/ Dennis L. May
Name: Dennis L. May
Title: Chief Executive Officer
(Principal Executive Officer)
By: /s/ Robert J. Riesbeck
Name: Robert J. Riesbeck
Title: Chief Financial Officer
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933,
as amended, this
Post-Effective Amendment
No. 1 to
the Registration Statement has been signed by the following persons in the capacities and on the dates
as indicated.
|
| | | | |
Signature
| | Title
| | Date
|
| | |
/S/ JERRY W. THROGMARTIN
Jerry W. Throgmartin
Signature | | Chairman andTitle | | Date |
| | |
/s/ Dennis L. May
| | President, Chief Executive Officer (Principal Executive Officer) and Director of Gregg Appliances, Inc., its sole member | | July 9, 2009September 8, 2015 |
| | |
**
Dennis L. May | | President | |
| | |
| /s/ Robert J. Riesbeck | Chief Financial Officer (Principal Financial and Chief Operating Officer and Accounting Officer) | September 8, 2015 |
| Robert J. Riesbeck | | |
| | |
| /s/ Gregory M. Bettinelli | Director of Gregg Appliances, Inc., its sole member | | July 9, 2009September 8, 2015 |
| Gregory M. Bettinelli | | |
**
Lawrence
| | |
/s/ William P. CastellaniCarmichael | Director of Gregg Appliances, its sole member | September 8, 2015 |
| William P. Carmichael | | |
| | |
| * | | Director of Gregg Appliances, Inc., its sole member | | July 9, 2009September 8, 2015 |
| Lawrence P. Castellani | | |
**
Benjamin D. Geiger
| | |
| * | | Director of Gregg Appliances, Inc., its sole member | | July 9, 2009September 8, 2015 |
| Benjamin D. Geiger | | |
**
John M. Roth
| | |
| * | | Director of Gregg Appliances, Inc., its sole member | | July 9, 2009September 8, 2015 |
| Catherine A. Langham | | |
**
Charles P. Rullman
| | |
| * | | Director of Gregg Appliances, Inc.,
its sole member | | July 9, 2009September 8, 2015 |
| John M. Roth | | |
**
Michael L. Smith
| | |
| * | | Director of Gregg Appliances, Inc.,
its sole member | | July 9, 2009September 8, 2015 |
| | |
**
Peter M. Starrett | | |
| | |
| * | | Director of Gregg Appliances, Inc.,
its sole member | | July 9, 2009September 8, 2015 |
| Kathleen C. Tierney | | |
**
Darell E. Zink
| | |
| * | | Director of Gregg Appliances, Inc.,
its sole member | | July 9, 2009September 8, 2015 |
| Darell E. Zink | | |
* By: /s/Dennis L. May
Dennis L. May
As attorney-in-fact
EXHIBIT INDEX
|
| | |
| |
**By: | | /S/ JERRY W. THROGMARTIN
|
Exhibit
Number | | Jerry W. Throgmartin, Power of Attorney |
EXHIBIT INDEX
| | Description |
Exhibit
Number
| | Description
|
| 1.1 | | Form of Underwriting Agreement* |
| |
| 3.1 | | CertificateAmended and Restated Articles of Incorporation of hhgregg, Inc.(1) |
| |
| 3.2 | | Amended and Restated By-Laws of hhgregg, Inc.(1) |
| |
| 3.3 | | Second Amended and Restated Articles of Incorporation of Gregg Appliances, Inc. (2) |
| |
| 3.4 | | Second Amended and Restated By-Laws of Gregg Appliances, Inc. (2) |
| |
| 3.5 | | Articles of Organization of HHG Distributing, LLC (2) |
| |
| 3.6 | | Operating Agreement of HHG Distributing, LLC (2) |
| |
| 4.1 | | Specimen common stock certificate(2)certificate (1) |
| |
| 4.2 | | Form of Senior or Subordinated Indenture***Indenture (2) |
| |
| 4.3 | | Form of Senior Debt Security* |
| |
| 4.4 | | Form of Subordinated Debt Security* |
| |
| 4.5 | | Form of CertificateArticles of Designation ofAmendment for Preferred Stock* |
| |
| 4.6 | | Form of Certificate for Preferred Stock* |
| |
| 4.7 | | Form of Warrant* |
| |
| 4.8 | | Form of Warrant Agreement* |
| |
| 5.1 | | Opinion of Bingham McCutchen LLP (2) |
| | |
| 5.2 | | Opinion of Faegre Baker Daniels LLP*** |
| |
| 12.1 | | Computation of Ratio/Deficiency of Earnings to Fixed Charges*Charges (2) |
| |
| 23.1 | | Consent of KPMG LLP, Independent Registered Public Accounting Firm** |
| |
| 23.2 | | Consent of Bingham McCutchen LLP(included in Exhibit 5.1) (2) |
| |
| 23.3 | | Consent of Faegre Baker Daniels LLP (included in Exhibit 5.1)*5.2)** |
| | |
| 24 | | Power of Attorney***Attorney (2) |
| |
| 25.1 | | Form T-1 Statement of Eligibility of Trustee for Senior or Subordinated Indenture under the Trust Indenture Act of 1939* |
|
| |
| * | To be filed with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement. |
| (1) | Incorporated by reference to the same-numbered exhibit to Form S-1 (Registration No. 333-142181)8-K, filed by the Registrant with the SEC on April 18, 2007.September 2, 2015.
|
| (2) | Incorporated by reference to the same-numbered exhibit to Amendment No. 2 to Form S-1S-3 (File No. 333-142181)333-189515) filed by the Registrant with the SEC on June 28, 2007.21, 2013.
|