UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): October 23, 2019
Sears Hometown Stores, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 001-35641 | 80-0808358 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) | ||
| 5500 Trillium Boulevard, Suite 501 Hoffman Estates, Illinois |
60192 | |||
| (Address of principal executive offices) | (Zip Code) | |||
(847) 286-7000
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. | Entry into a Material Definitive Agreement. |
The information provided under Item 2.03 is incorporated by reference into this Item 1.01.
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant. |
On October 23, 2019 (the “Closing Date”), in connection with the closing of the Merger (as defined below), Sears Hometown Stores, Inc. (the “Company”), certain of its subsidiaries and Transform Merger Corporation (“Merger Sub”) entered into a Revolving Credit and Security Agreement (the “Credit Agreement”) with PNC Bank, National Association, as Agent, and the lenders from time to time party thereto. The Credit Agreement provides for an $80 million senior secured revolving credit facility (the “Credit Facility”) available to be used by the Company and certain of its domestic subsidiaries for general corporate purposes, including to finance the merger consideration that was paid in connection with the acquisition of the Company in accordance with the terms of the previously announced Agreement and Plan of Merger, dated as of June 1, 2019, among the Company, Transform Holdco LLC (“Transform Holdco”) and Merger Sub (as amended and supplemented by the terms of the previously announced letter agreement, dated as of August 27, 2019, among the Company, Transform Holdco and Merger Sub, the “Merger Agreement” and the transactions contemplated thereby, the “Merger”). The Company and each of its material subsidiaries is a borrower, and jointly and severally liable, under the Credit Facility. The Credit Facility matures on October 23, 2024.
Under the Credit Facility, the Company will pay quarterly fees of 0.50% per annum on the unused portion of the facility. Loans under the facility will bear interest at a floating rate based, at the Company’s election, on either a customary base rate or a customary LIBOR rate, in each case plus an applicable margin based on availability under the Credit Facility.
The Credit Agreement requires the Company to comply with a minimum excess availability covenant. In addition, the Credit Agreement contains other standard affirmative and negative covenants, such as those which (subject to certain thresholds) limit the ability of the Company and its subsidiaries to, among other things, incur debt, incur liens, engage in mergers, consolidations or acquisitions, make certain investments, make distributions on or repurchase its equity securities, or engage in transactions with affiliates. Events of default under the Credit Agreement include, among other things, payment defaults, breaches of representations, warranties or covenants, defaults under material indebtedness, certain events of bankruptcy or insolvency, judgment defaults, certain defaults or events relating to employee benefit plans or a change in control of the Company. The events of default would permit the lenders to terminate commitments and accelerate the maturity of borrowings under the Credit Facility if not cured within applicable grace periods.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
On the Closing Date, pursuant to an action by unanimous written consent of the stockholders of the Company, in connection with the Merger (and not as a result of any disagreement with the Company), Kunal Kamlani, the sole director of the Company, who was appointed in accordance with the terms of the Merger Agreement, ceased to be the sole director of the Company and Steven Swank and Brandon Gartman became directors of the Company.
On October 29, 2019, the officers of the company who were appointed in accordance with the terms of the Merger Agreement ceased to be officers of the Company and the persons listed below became officers of the Company:
| • | Brandon Gartman, Chief Operating Officer and Secretary; and |
| • | Steven Swank, Chief Financial Officer and Treasurer. |
Mr. Gartman, age 50, has served as General Manager since October 23, 2019, and Vice President, Operations Services since 2017. Prior to that, he served as Vice President, Operating Services, from 2015 to 2017 and Division Vice President, Outlet Repair & Distribution Centers, from 2013 to 2015. All of these positions were at the Company.
Mr. Swank, age 48, has served as Divisional Vice President, Finance at the Company since 2012.
Neither Mr. Gartman nor Mr. Swank has any family relationship with any of the current or former directors and officers of the Company, nor are they participants in any related party transaction required to be reported under Item 404(a) of Regulation S-K with the Company.
| Item 5.03 | Amendments to the Articles of Incorporation or Bylaws |
On the Closing Date, pursuant to an action by unanimous written consent of the stockholders of the Company, the amended and restated certificate of incorporation of the Company, as adopted pursuant to the Merger Agreement, was further amended and restated to be in the form of the Second Amended and Restated Certificate of Incorporation attached hereto as Exhibit 3.1. The purpose of this amendment was to remedy an inconsistency between the indemnification language in the bylaws of the Company prior to Closing and the certificate of incorporation adopted pursuant to the Merger Agreement.
| Item 5.07 | Submission of Matters to a Vote of Security Holders |
The information provided under Item 5.02 and Item 5.03 is incorporated by reference into this Item 5.07.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit 3.1 | Second Amended and Restated Certificate of Incorporation of Sears Hometown Stores, Inc. | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SEARS HOMETOWN STORES, INC. | ||
| By: | /s/ Brandon Gartman | |
| Brandon Gartman | ||
| Chief Operating Officer | ||
Date: October 29, 2019
Exhibit 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEARS HOMETOWN STORES, INC.
Sears Hometown Stores, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
A. The present name of the corporation is Sears Hometown Stores, Inc. The Corporation was originally formed as Sears Hometown and Outlet Stores, Inc., a Delaware corporation, and filed its original Certificate of Incorporation with the Secretary of State of the State of Delaware on April 23, 2012.
B. An Amended and Restated Certificate of Incorporation of the Corporation (the “First Amended Certificate”) was duly adopted at the effective time of the merger of Transform Merger Corporation with and into the Corporation pursuant to that certain Agreement and Plan of Merger, dated as of June 1, 2019, among Sears Hometown and Outlet Stores, Inc., Transform Holdco LLC and Transform Merger Corporation.
C. This Second Amended and Restated Certificate of Incorporation (this “Second Amended Certificate”) was duly adopted by the Board of Directors of the Corporation and by written consent of the stockholders of the Corporation in accordance with Section 242 and Section 245 of the DGCL and restates, integrates and amends the First Amended Certificate.
D. Pursuant to the DGCL, the text of the First Amended Certificate is hereby amended and restated in its entirety to read as follows:
ARTICLE ONE
The name of the corporation is Sears Hometown Stores, Inc. (the “Corporation”).
ARTICLE TWO
The registered office of the Corporation in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, Delaware, 19801, and the name of the Corporation’s registered agent for service of process in the State of Delaware at such address is The Corporation Trust Company.
ARTICLE THREE
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE FOUR
The total number of shares of capital stock that the Corporation has authority to issue is 25,000 shares, which will be designated common stock, par value $0.001 per share.
ARTICLE FIVE
The number of directors of the Corporation shall be such as fixed by, or in the manner provided in, the Bylaws of the Corporation (the “Bylaws”). Unless, and except to the extent that, the Bylaws so require, the election of directors need not be by written ballot.
ARTICLE SIX
The board of directors of the Corporation (the “Board of Directors”) may from time to time adopt, amend or repeal the Bylaws, subject to the power of the stockholders to adopt any Bylaws or to amend or repeal any Bylaws adopted, amended or repealed by the Board of Directors.
ARTICLE SEVEN
A. LIABILITY
No director of the Corporation shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a director, except for any matter in respect of which such director shall be liable under Section 174 of the DGCL or any amendment thereto or shall be liable by reason that, in addition to any and all other requirements for such liability, such director (1) shall have breached the director’s duty of loyalty to the Corporation or its stockholders, (2) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law, or (3) shall have derived an improper personal benefit. If the DGCL hereafter is amended to authorize the further elimination or limitation of the liability of a director, the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
B. INDEMNIFICATION
The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided below, the Corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors.
The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Section B of Article Seven or otherwise.
If a claim for indemnification under this Section B of Article Seven (following the final disposition of such proceeding) is not paid in full within sixty days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this Section B of Article Seven is not paid in full within thirty days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
The rights conferred on any Covered Person by this Section B of Article Seven shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of this Amended and Restated Certificate of Incorporation (this “Certificate”), any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
Any right to indemnification or to advancement of expenses of any Covered Person arising hereunder shall not be eliminated or impaired by an amendment to or repeal of these bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought.
This Section B of Article Seven shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.
ARTICLE EIGHT
The directors shall have powers without the assent or vote of the stockholders to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the Corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends.
ARTICLE NINE
The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and as binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest or for any other reason.
ARTICLE TEN
In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of the State of Delaware, of this Certificate, and of any Bylaws from time to time made by the stockholders; provided, however, that no Bylaws so made shall invalidate any prior act of the directors which would have been valid if such Bylaws had not been made.
ARTICLE ELEVEN
Section 203 of the DGCL, as amended from time to time, shall not apply to the Corporation.
ARTICLE TWELVE
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.
[Signature page follows]
IN WITNESS WHEREOF, this Second Amended Certificate has been duly executed by the Chief Operating Officer of the Corporation, pursuant to the DGCL this 23rd day of October 2019.
| By: | /s/ Brandon Gartman | |
| Name: | Brandon Gartman | |
| Title: | Chief Operating Officer |