File No. 333-189515
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post-Effective Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
hhgregg, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Indiana (State or other jurisdiction of incorporation) | 47-4850538 (I.R.S. Employer Identification No.) |
4151 East 96th Street
Indianapolis, Indiana 46240
(317) 848-8710
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant’s Principal Executive Offices)
Dennis L. May
Chief Executive Officer
4151 East 96th Street
Indianapolis, Indiana 46240
(317) 848-8710
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies of all Communications to:
Christina Melendi, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
(212) 309-6000
Approximate date of commencement of proposed sale to public: From time to time after the effective date of 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 form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [x]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this form 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 form 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 Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer [ ] | | Accelerated filer [x] |
Non-accelerated filer [ ] | (Do not check if a smaller reporting company) | Smaller reporting company [ ] |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered (1) | Amount to be Registered (1) | Proposed Maximum Offering Price Per Unit | Proposed Maximum Aggregate Offering Price | 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 | − | − | − | − |
Guarantees of Debt Securities | − | − | − | − |
Total | − | − | − | − |
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| (1) The Registrant is not registering additional securities. Registration fees were originally paid by the Registrant’s predecessor-in-interest upon filing of the original registration statement on Form S-3 (File No. 333-189515). Consequently, no additional registration fees are required with respect to the filing of this Post-Effective Amendment No. 1. |
Explanatory Note
Effective as of 11:59 p.m. on August 31, 2015 (the “Effective Time”), hhgregg, Inc., a Delaware corporation (the “Company”), changed its state of incorporation from Delaware to Indiana. This reincorporation was effectuated by a merger (the “Reincorporation Merger”) of the Company with and into hhgregg Indiana, Inc., an Indiana corporation (“hhgregg Indiana”), then a wholly owned Indiana subsidiary of the Company 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 at the Company’s Annual Meeting of Stockholders held on August 4, 2015. hhgregg Indiana is deemed to be the successor issuer of the Company under Rule 12g-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company and hhgregg Indiana, as issuer and successor issuer, respectively, under Rule 12g-3 of the Exchange Act, are collectively referred to herein as the “Registrant.”
The Registrant is filing this Post-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 1933, as amended (the “Securities Act”), solely to update the Registration Statement as a result of the Registrant’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 the Company pursuant to Rule 12g-3 of the Exchange Act, hereby expressly adopts the Registration Statement, as modified by this Post-Effective Amendment No. 1, as its own registration statement for all purposes of the Securities Act and the Exchange Act, as updated by subsequent filings under the Exchange Act, including, but not limited to, the Registrant’s most recent annual report on Form 10-K and the description of the common stock of the Registrant as set forth in the Registration Statement on Form 8-A12B/A, filed by the Registrant with the Securities and Exchange Commission (the “SEC”) on September 3, 2015. The applicable registration fees were paid at the time of the original filing of the Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The information set forth in this item is incorporated by reference from Item 14 of the Registrant’s registration statement on Form S-3, File No. 333-189515 filed with the SEC on June 21, 2013.
Item 15. Indemnification of Directors and Officers.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors and officers pursuant to the following provisions, or otherwise, the 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 an 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 if such conduct was in good faith and 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.
In addition, under the IBCL, a corporation may pay for or reimburse reasonable expenses incurred by a director or officer who 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 a written undertaking of the director or officer to repay the advanced amount if it is ultimately determined that the director or officer did not meet the standard of conduct prescribed by Indiana law and (iii) a determination that the facts then known to those making the determination would not preclude indemnification under the 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 the Registrant from time to time enters into contracts under which the 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.
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Exhibit
Number | | Description |
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1.1 | | Form of Underwriting Agreement* |
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3.1 | | Amended and Restated Articles of Incorporation of hhgregg, Inc. (1) |
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3.2 | | Amended and Restated By-Laws of hhgregg, Inc. (1) |
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3.3 | | Second Amended and Restated Articles of Incorporation of Gregg Appliances, Inc. (2) |
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3.4 | | Second Amended and Restated By-Laws of Gregg Appliances, Inc. (2) |
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3.5 | | Articles of Organization of HHG Distributing, LLC (2) |
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3.6 | | Operating Agreement of HHG Distributing, LLC (2) |
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4.1 | | Specimen common stock certificate (1) |
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4.2 | | Form of Senior or Subordinated Indenture (2) |
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4.3 | | Form of Senior Debt Security* |
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4.4 | | Form of Subordinated Debt Security* |
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4.5 | | Form of Articles of Amendment for Preferred Stock* |
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4.6 | | Form of Certificate for Preferred Stock* |
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4.7 | | Form of Warrant* |
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4.8 | | Form of Warrant Agreement* |
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5.1 | | Opinion of Bingham McCutchen LLP (2) |
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5.2 | | Opinion of Faegre Baker Daniels LLP*** |
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12.1 | | Computation of Ratio/Deficiency of Earnings to Fixed Charges (2) |
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23.1 | | Consent of KPMG LLP, Independent Registered Public Accounting Firm** |
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23.2 | | Consent of Bingham McCutchen LLP (included in Exhibit 5.1) (2) |
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23.3 | | Consent of Faegre Baker Daniels LLP (included in Exhibit 5.2)** |
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24 | | Power of Attorney (2) |
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25.1 | | Form T-1 Statement of Eligibility of Trustee for Senior or Subordinated Indenture under the Trust Indenture Act of 1939* |
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* | To be filed with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement. |
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(1) | Incorporated by reference to the same-numbered exhibit to Form 8-K, filed by the Registrant with the SEC on September 3, 2015.
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(2) | Incorporated by reference to the same-numbered exhibit to Form S-3 (File No. 333-189515) filed by the Registrant with the SEC on June 21, 2013.
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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 section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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;
Provided, however, that: paragraphs (a)(l)(i), (a)(l)(ii) and (a)(l)(iii) of 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 section 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 section 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 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 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:
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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the 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.
(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, 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Indianapolis, State of Indiana, on this 8th day of September, 2015.
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 to Registration Statement has been signed by the following persons in the capacities and on the dates as indicated.
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Signature | | Title | Date |
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/s/ Dennis L. May
| | President, Chief Executive Officer (Principal Executive Officer) and Director | September 8, 2015 |
Dennis L. May | | | |
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/s/ Robert J. Riesbeck | Chief Financial Officer (Principal Financing and Accounting Officer) | September 8, 2015 |
Robert J. Riesbeck | | |
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/s/ Gregory M. Bettinelli | Director | September 8, 2015 |
Gregory M. Bettinelli | | |
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/s/ William P. Carmichael | Director | September 8, 2015 |
William P. Carmichael | | |
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* | | Director | September 8, 2015 |
Lawrence P. Castellani | |
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* | | Director | September 8, 2015 |
Benjamin D. Geiger | |
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* | | Director | September 8, 2015 |
Catherine A. Langham | |
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* | | Director | September 8, 2015 |
John M. Roth | |
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* | | Director | September 8, 2015 |
Peter M. Starrett | |
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* | | Director | September 8, 2015 |
Kathleen C. Tierney | |
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* | | Director | September 8, 2015 |
Darell E. Zink | |
* By: /s/Dennis L. May
Dennis L. May
As attorney-in-fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Indianapolis, State of Indiana, on this 8th day of September, 2015.
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 Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature | | Title | | Date |
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/s/ Dennis L. May
| | President, Chief Executive Officer (Principal Executive Officer) and Director | | September 8, 2015 |
Dennis L. May | | | |
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/s/ Robert J. Riesbeck | Chief Financial Officer (Principal Financial and Accounting Officer) | September 8, 2015 |
Robert J. Riesbeck | | |
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/s/ Gregory M. Bettinelli | Director | September 8, 2015 |
Gregory M. Bettinelli | | |
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/s/ William P. Carmichael | Director | September 8, 2015 |
William P. Carmichael | | |
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* | | Director | | September 8, 2015 |
Lawrence P. Castellani | | |
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* | | Director | | September 8, 2015 |
Benjamin D. Geiger | | |
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* | | Director | | September 8, 2015 |
Catherine A. Langham | | |
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* | | Director | | September 8, 2015 |
John M. Roth | | |
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* | | Director | | September 8, 2015 |
Peter M. Starrett | | |
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* | | Director | | September 8, 2015 |
Kathleen C. Tierney | | |
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* | | Director | | September 8, 2015 |
Darell E. Zink | | |
* By: /s/Dennis L. May
Dennis L. May
As attorney-in-fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Indianapolis, State of Indiana, on this 8th day of September, 2015.
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 to Registration Statement has been signed by the following persons in the capacities and on the dates as indicated.
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Signature | | Title | | Date |
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/s/ Dennis L. May
| | President, Chief Executive Officer (Principal Executive Officer) and Director of Gregg Appliances, its sole member | | September 8, 2015 |
Dennis L. May | | | |
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/s/ Robert J. Riesbeck | Chief Financial Officer (Principal Financial and Accounting Officer) | September 8, 2015 |
Robert J. Riesbeck | | |
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/s/ Gregory M. Bettinelli | Director of Gregg Appliances, its sole member | September 8, 2015 |
Gregory M. Bettinelli | | |
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/s/ William P. Carmichael | Director of Gregg Appliances, its sole member | September 8, 2015 |
William P. Carmichael | | |
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* | | Director of Gregg Appliances, its sole member | | September 8, 2015 |
Lawrence P. Castellani | | |
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* | | Director of Gregg Appliances, its sole member | | September 8, 2015 |
Benjamin D. Geiger | | |
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* | | Director of Gregg Appliances, its sole member | | September 8, 2015 |
Catherine A. Langham | | |
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* | | Director of Gregg Appliances, its sole member | | September 8, 2015 |
John M. Roth | | |
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* | | Director of Gregg Appliances, its sole member | | September 8, 2015 |
Peter M. Starrett | | |
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* | | Director of Gregg Appliances, its sole member | | September 8, 2015 |
Kathleen C. Tierney | | |
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* | | Director of Gregg Appliances, its sole member | | September 8, 2015 |
Darell E. Zink | | |
* By: /s/Dennis L. May
Dennis L. May
As attorney-in-fact
EXHIBIT INDEX
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Exhibit
Number | | Description |
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1.1 | | Form of Underwriting Agreement* |
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3.1 | | Amended and Restated Articles of Incorporation of hhgregg, Inc. (1) |
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3.2 | | Amended and Restated By-Laws of hhgregg, Inc. (1) |
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3.3 | | Second Amended and Restated Articles of Incorporation of Gregg Appliances, Inc. (2) |
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3.4 | | Second Amended and Restated By-Laws of Gregg Appliances, Inc. (2) |
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3.5 | | Articles of Organization of HHG Distributing, LLC (2) |
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3.6 | | Operating Agreement of HHG Distributing, LLC (2) |
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4.1 | | Specimen common stock certificate (1) |
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4.2 | | Form of Senior or Subordinated Indenture (2) |
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4.3 | | Form of Senior Debt Security* |
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4.4 | | Form of Subordinated Debt Security* |
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4.5 | | Form of Articles of Amendment for Preferred Stock* |
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4.6 | | Form of Certificate for Preferred Stock* |
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4.7 | | Form of Warrant* |
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4.8 | | Form of Warrant Agreement* |
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5.1 | | Opinion of Bingham McCutchen LLP (2) |
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5.2 | | Opinion of Faegre Baker Daniels LLP** |
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12.1 | | Computation of Ratio/Deficiency of Earnings to Fixed Charges (2) |
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23.1 | | Consent of KPMG LLP, Independent Registered Public Accounting Firm** |
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23.2 | | Consent of Bingham McCutchen LLP(included in Exhibit 5.1) (2) |
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23.3 | | Consent of Faegre Baker Daniels LLP (included in Exhibit 5.2)** |
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24 | | Power of Attorney (2) |
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25.1 | | Form T-1 Statement of Eligibility of Trustee for Senior or Subordinated Indenture under the Trust Indenture Act of 1939* |
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* | To be filed with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement. |
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(1) | Incorporated by reference to the same-numbered exhibit to Form 8-K, filed by the Registrant with the SEC on September 2, 2015.
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(2) | Incorporated by reference to the same-numbered exhibit to Form S-3 (File No. 333-189515) filed by the Registrant with the SEC on June 21, 2013.
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Faegre Baker Daniels LLP
600 East 96th Street Suite 600
Indianapolis Indiana 46240-3789
Phone +1 317 569 9600
Fax +1 317 569 4800
September 8, 2015
hhgregg, Inc.
4151 East 96th Street
Indianapolis, Indiana 46240
Ladies and Gentlemen:
We have acted as counsel to hhgregg, Inc., an Indiana corporation (the “Company”) and its subsidiaries listed in Schedule 1 hereto (the “Subsidiary Guarantors”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of Post-Effective Amendment No. 1 (the “Post-Effective Amendment”), to the Registration Statement on Form S-3 (File No. 333-189515) (the “Registration Statement”), originally filed by hhgregg, Inc., a Delaware corporation (the “Predecessor Registrant”), relating to the registration of an indeterminate amount of securities having an aggregate public offering price of up to $300 million, including (1) the issuance and sale from time to time by the Company, pursuant to Rule 415 of the Securities Act, of the following securities: (i) shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”); (ii) shares of the Company’s preferred stock, par value $0.0001 per share (“Preferred Stock”), in one or more classes or series; (iii) senior debt securities of the Company (“Senior Debt Securities”); (iv) subordinated debt securities of the Company (“Subordinated Debt Securities” and collectively with the Senior Debt Securities, “Debt Securities”); (v) guarantees of Debt Securities by the Subsidiary Guarantors (“Subsidiary Guarantees”); and (vi) warrants to purchase any of the securities described in clauses (i) through (iv) or other securities ( “Warrants”); and (2) the sale from time to time, pursuant to Rule 415, of up to 14,615,163 shares of Common Stock (“Secondary Shares”) by certain shareholders of the Company identified in a prospectus supplement as selling shareholders (“Selling Shareholders”). The Common Stock, Preferred Stock and Warrants are collectively referred to herein as “Offered Securities.”
The Company became the successor to the Predecessor Registrant on August 31, 2015 for purposes of Rule 414 under the Securities Act as a result of the merger (the “Merger”) of the Predecessor Registrant with and into the Company, then a wholly-owned subsidiary of the
Predecessor Registrant established for such purpose, with the Company being the surviving corporation. The Merger became effective at 11:59 p.m. on August 31, 2015 (the “Effective Time”), at which time the separate corporate existence of the Predecessor Registrant ceased. In connection with the Merger, the Company succeeded, without other transfer, to all of the assets, rights, powers and property of the Predecessor Registrant and to all of the debts, liabilities and obligations of the Predecessor Registrant in the same manner as if the Company had itself incurred them. In addition, upon the Effective Time, each share of the Predecessor Registrant’s common stock, par value $0.0001 per share, issued and outstanding immediately prior to the Effective Time, by virtue of the Merger was converted into one fully paid and nonassessable share of the Company’s Common Stock, without any action by the Company or the Predecessor Registrant, the holder of such shares or any other person.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K.
Any Debt Securities are to be issued pursuant to a senior indenture and/or a subordinated indenture, which may include a Subsidiary Guarantee, a form of which has been filed as Exhibit 4.2 to the Registration Statement (the “Indenture”), to be entered into, in each case, between the Company and a trustee (the “Trustee”) on or about the date of the first issuance of Debt Securities thereunder. Any series of Preferred Stock is to be issued from time to time under the Amended and Restated Articles of Incorporation of the Company (the “Articles of Incorporation”) and articles of amendment (“Articles of Amendment”) to the Articles of Incorporation to be approved by the Board of Directors of the Company and filed with the Secretary of State of the State of Indiana in accordance with the Indiana Business Corporation Law. Any Common Stock is to be issued under the Articles of Incorporation. Any Warrants are to be issued pursuant to a warrant agreement (including a form of certificate evidencing the Warrants) (the “Warrant Agreement”), to be dated on or about the date of the first issuance of Warrants thereunder, by and between the Company and a financial institution identified therein as the warrant agent (the “Warrant Agent”), which Warrant Agreement will be filed as an exhibit to a report filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or an amendment to the Registration Statement. The Debt Securities, Warrants and Preferred Stock are to be issued in forms to be filed as exhibits to a report filed under the Exchange Act or an amendment to the Registration Statement. The Articles of Incorporation, any Articles of Amendment and each Warrant Agreement are referred to herein individually as a “Governing Document” and collectively as the “Governing Documents.”
As counsel for the Company, we are familiar with the Articles of Incorporation and Amended and Restated By-Laws (the “By-Laws”) of the Company, the Second Amended and Restated Articles of Incorporation of Gregg Appliances, Inc. (the “Gregg Appliances Articles”), the Second Amended and Restated By-Laws of Gregg Appliances, Inc. (the “Gregg Appliances By-Laws”), the Articles of Organization of HHG Distributing, LLC (the “HHG Distributing Articles”) and the Operating Agreement of HHG Distributing, LLC (the “HHG Distributing Operating Agreement” and collectively with the Articles of Incorporation, By-Laws, Gregg Appliances Articles, Gregg Appliances By-Laws and HHG Distributing Articles, the “Organizational Documents”), each as amended to the date hereof, and we have reviewed (i) the
Registration Statement, (ii) the Post-Effective Amendment, (iii) the form of Indenture, and (iv) the proceedings taken by the Company in connection with the Registration Statement and the Post-Effective Amendment. We have also examined originals, or copies certified or otherwise authenticated to our satisfaction, of such corporate records of the Company and other instruments, certificates of public officials and representatives of the Company, and other documents as we have deemed necessary as a basis for the opinions hereinafter expressed and have made such examination of statutes and decisions and reviewed such questions of law as we have considered necessary or appropriate. As to facts material to this opinion letter, we have relied upon certificates, statements or representations of public officials, of officers and representatives of the Company and of others, without any independent verification thereof.
We have assumed, without investigation, the following: (i) the legal capacity of all natural persons; (ii) the genuineness of all signatures; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies; (v) the authenticity of the originals of such latter documents; (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments, certificates and records we have reviewed; and (vii) the absence of any undisclosed modifications to the agreements and instruments reviewed by us.
In rendering the opinions set forth below relating to the future issuance of Common Stock or Preferred Stock, or any Warrants exercisable for Common Stock or Preferred Stock, we have assumed that, at the time of issuance (a) the Articles of Incorporation, By-Laws and applicable law will not have changed or been amended after the date hereof so as to affect the validity of such issuance, and (b) there will be sufficient shares of Common Stock and Preferred Stock authorized under the Articles of Incorporation (as then in effect) and not otherwise outstanding or reserved for issuance.
Based on and subject to the foregoing and to the other qualifications and limitations set forth herein, we are of the opinion that:
1. With respect to the shares of Common Stock, including shares of Common Stock issued upon conversion of Preferred Stock or upon the exercise or otherwise upon the fulfillment of Warrants, but excluding Secondary Shares (“Offered Common Stock”), when (i) a prospectus supplement and any other offering material with respect to the Offered Common Stock have been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder, (ii) the appropriate corporate action has been taken by the Company to authorize the issuance of Offered Common Stock, (iii) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities are obtained, (iv) the Offered Common Stock has been duly issued and delivered by the Company against payment of the agreed-upon consideration therefor, upon conversion in accordance with the terms of Preferred Stock, or upon the exercise or otherwise upon the fulfillment of Warrants, as the case may be, in accordance with such corporate action and (v) unless issued without certificates, certificates representing the Offered Common Stock have been duly executed by the duly authorized officers of the Company, countersigned by the transfer agent therefor and
delivered to the purchasers thereof against payment therefor, or to the persons entitled thereto in accordance with the terms of Preferred Stock or Warrants, as the case may be, then, upon the happening of such events, such Offered Common Stock will be validly issued, fully paid and nonassessable.
2. With respect to the shares of any series of Preferred Stock, including shares of Preferred Stock issued upon the exercise or otherwise upon the fulfillment of Warrants, when (i) a prospectus supplement and any other offering material with respect to Preferred Stock have been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder, (ii) the appropriate corporate action has been taken by the Company to authorize the issuance of Preferred Stock, to fix the terms thereof and to authorize the execution and filing of Articles of Amendment relating thereto with the Secretary of State of the State of Indiana, (iii) such Articles of Amendment have been executed by duly authorized officers of the Company and so filed by the Company, all in accordance with the laws of the State of Indiana, (iv) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities are obtained, (v) the Preferred Stock with terms so fixed has been duly issued and delivered by the Company against payment of the agreed-upon consideration therefor, or upon the exercise or otherwise upon the fulfillment of Warrants, as the case may be, in accordance with such corporate action, and (vi) unless issued without certificates, certificates representing the Preferred Stock have been duly executed by the duly authorized officers of the Company, countersigned by the transfer agent therefor and delivered to the purchasers thereof against payment therefor, or to the persons entitled thereto in accordance with the terms of Warrants, then, upon the happening of such events, such Preferred Stock will be validly issued, fully paid and nonassessable.
3. With respect to any series of Warrants, when (i) a prospectus supplement and any other offering material with respect to Warrants have been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder, (ii) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution and delivery of a Warrant Agreement (including a form of certificate evidencing Warrants) and the issuance of the Warrants and the underlying shares of Common Stock or Preferred Stock or the underlying Debt Securities, (iii) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities are obtained, (iv) the Warrant Agreement has been duly executed and delivered by the Company and the Warrant Agent, and (v) the Warrants with such terms are duly executed, attested, issued and delivered by duly authorized officers of the Company against payment of the agreed-upon consideration in the manner provided for in the applicable Warrant Agreement and such corporate action, then, upon the happening of such events, such Warrants will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
4. The Company is validly existing as a corporation and has the corporate power to execute and deliver one or more Indentures and to issue Debt Securities. Each Subsidiary Guarantor is validly existing as a corporation or a limited liability company, as the case may be, and has the corporate or limited liability company power to execute and deliver one or more Indentures and to issue Subsidiary Guarantees.
5. The Secondary Shares held by Selling Shareholders have been duly authorized and are validly issued, fully paid and nonassessable.
The opinion set forth in paragraph 3 above is subject to the limitation that the validity, binding effect, or enforceability of the provisions of any agreement or instrument is limited by (i) applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, moratorium, fraudulent conveyance, fraudulent transfer, receivership, and other laws of general application affecting the enforcement of creditors’ rights, (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, and the possible unavailability of specific performance, injunctive relief, or other equitable remedies, whether considered in a proceeding at law or in equity, (iii) public policy considerations that may limit the rights of parties to obtain specific remedies or enforce specific terms, and (iv) governmental authority to limit, delay or prohibit the making of payments outside the United States.
The foregoing opinions assume that (i) the Registration Statement, the Post-Effective Amendment and any other amendments relating thereto shall have become effective under the Securities Act and will continue to be effective, (ii) the Company will remain duly organized and validly existing under the laws of the State of Indiana, (iii) at the time any Offered Securities or Governing Documents are authorized, issued, executed, authenticated, acknowledged, delivered or filed (as the case may be), (a) there will not have occurred any change in the law or in the Organizational Documents affecting the authorization, issuance, execution, authentication, acknowledgement, delivery, filing, validity or enforceability of such Offered Securities or Governing Documents, and (b) no relevant corporate action will have been modified or rescinded, (iv) none of the particular terms of any Offered Securities or Governing Documents established after the date hereof will violate, or be void or voidable under, any applicable law, (v) neither the authorization, issuance, execution, authentication, acknowledgement, delivery or filing of any Offered Securities or Governing Documents, nor the compliance by the Company with the terms of such Offered Securities or Governing Documents, resulted or will result in a violation of or default under any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction over the Company then in effect, (vi) the Offered Securities will be issued in accordance with, and in compliance with any limitations on issuance contained in, the corporate action related thereto, (vii) all consideration received by the Company for any Offered Securities will be legally sufficient, and (viii) each party to any Offered Securities or Governing Documents (other than the Company) has or will have complied with all legal requirements pertaining to its status as such status relates to the right to enforce such agreements or instruments against the Company and has or will have satisfied those legal requirements applicable to it to the extent necessary to make such agreements or instruments enforceable against it.
Without limiting any other qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the enforcement of provisions of instruments or agreements that purport to require waiver of the obligations of good
faith, fair dealing, diligence and reasonableness, (iii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iv) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct or insofar as such provisions otherwise contravene public policy, (v) may, where less than all of an instrument or agreement may be unenforceable, limit the enforceability of the balance of the instrument or agreement to circumstances in which the unenforceable portion is not an essential part of the agreed exchange, (vi) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs, (vii) may permit a party who has materially failed to render or offer performance required by a contract to cure that failure unless either permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or it is important under the circumstances to the aggrieved party that performance occur by the date stated in the instrument or agreement, (viii) may require mitigation of damages, (ix) may limit the enforceability of certain waivers, including without limitation, waivers of the right to jury trial and (x) provide a time limitation after which a remedy may not be enforced (i.e., statutes of limitation).
We do not express any opinion herein with respect to the laws of any jurisdiction other than, in each case subject to the limitations and assumptions contained herein, the laws of the State of Indiana. We have assumed that Indiana law will be chosen to govern each Warrant Agreement and Warrant.
This opinion is rendered as of the date first written above and is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters.
We hereby consent to the filing of this opinion letter with the Commission as an exhibit to the Post-Effective Amendment and to the use of our name under the heading “Legal Matters” in the Registration Statement, as amended by the Post-Effective Amendment. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
FAEGRE BAKER DANIELS LLP
By: /s/Janelle Blankenship
Janelle Blankenship, Partner
Schedule 1
Subsidiary Jurisdiction of Organization
Gregg Appliances, Inc. Indiana
HHG Distributing, LLC Indiana
HHGREGG (CE) (USOTC:HGGGQ)
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