UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): July 31, 2020
FRANCESCA’S HOLDINGS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | ||||
| 001-35239 | (State or Other Jurisdiction of Incorporation) | 20-8874704 | ||
| (Commission File Number) | (I.R.S. Employer Identification No.) | |||
|
8760 Clay Road, Houston, Texas |
77080 |
|||
| (Address of Principal Executive Offices) | (Zip Code) |
(713) 864-1358
(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:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common Stock, par value $.01 per share | FRAN | The Nasdaq Stock Market LLC | ||
| Purchase Rights of Series A Junior Participating Preferred Stock, par value $0.01 per share | N/A | The Nasdaq Stock Market LLC |
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 o
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. o
| Item 1.01. | Entry into a Material Definitive Agreement. |
On July 31, 2020, Francesca’s Holdings Corporation (the “Company”) entered into an amendment (the “Amendment”) to the Rights Agreement, dated as of August 1, 2019 (the “Rights Agreement”), between the Company and Computershare Trust Company, N.A., as rights agent.
The Amendment accelerates the expiration of the rights (the “Rights”) set forth in the Rights Agreement to purchase the Company’s Series A Junior Participating Preferred Stock, par value $0.01 per share (the “Preferred Stock”), from 5:00 p.m., New York City time, on August 1, 2022, to 5:00 p.m., New York City time, on August 1, 2020, and has the effect of terminating the Rights Agreement on that date. At the time of the termination of the Rights Agreement, all of the Rights distributed to holders of the Company’s common stock, par value $.01 per share, pursuant to the Rights Agreement will expire.
The foregoing description of the Amendment is qualified in its entirety by reference to the Amendment, a copy of which is attached hereto as Exhibit 4.1 and is incorporated herein by reference.
| Item 1.02. | Termination of a Material Definitive Agreement. |
The information set forth under Item 1.01 above is incorporated herein by reference.
| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth under Item 1.01 above is incorporated herein by reference.
In connection with the expiration of the Rights and termination of the Rights Agreement, the Company filed a Certificate of Elimination with the Secretary of State of the State of Delaware on August 3, 2020 that, effective upon filing, eliminated from the Company’s Amended and Restated Certificate of Incorporation all matters set forth in the Certificate of Designation with respect to the Preferred Stock, and returned the Preferred Stock to authorized but undesignated shares of the Company’s preferred stock. No shares of Preferred Stock were issued and outstanding at the time of the filing of the Certificate of Elimination.
The foregoing description of the Certificate of Elimination is qualified in its entirety by reference to the full text of the Certificate of Elimination, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information set forth under Item 3.03 above is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| FRANCESCA’S HOLDINGS CORPORATION | ||
| Date: August 3, 2020 | By: | /s/ Cindy Thomassee |
| Cindy Thomassee | ||
| Executive Vice President and Chief Financial Officer | ||
Exhibit 3.1
CERTIFICATE OF ELIMINATION
OF THE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
FRANCESCA’S HOLDINGS CORPORATION
Pursuant to Section 151(g) of the General Corporation Law of the State of Delaware
Francesca’s Holdings Corporation (the “Company”), a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), certifies as follows:
FIRST: That, pursuant to the authority expressly vested in the Board of Directors of the Company (the “Board”) by the Amended and Restated Certificate of Incorporation of the Company, as heretofore amended (the “Certificate of Incorporation”), the Board previously adopted resolutions creating and authorizing the issuance of a series of 16,000 shares of preferred stock, par value $0.01 per share, of the Company designated as “Series A Junior Participating Preferred Stock” (the “Preferred Stock”), and establishing the powers, preferences and rights, and the qualifications, limitations and restrictions thereof, and, on August 2, 2019, filed the Certificate of Designation of Series A Junior Participating Preferred Stock (the “Certificate of Designation”), with the Secretary of State of the State of Delaware.
SECOND: That none of the authorized shares of the Preferred Stock are outstanding and none will be issued by the Company pursuant to the Certificate of Designation.
THIRD: That, pursuant to the authority conferred upon the Board pursuant to the Certificate of Incorporation, the Board, on July 31, 2020, duly adopted the following resolutions approving the elimination of the Preferred Stock:
RESOLVED, that as of the date hereof, no shares of such Preferred Stock are outstanding and no shares of such Preferred Stock will be issued subject to said Certificate of Designation.
RESOLVED FURTHER, that all matters set forth in the Certificate of Designation with respect to such Preferred Stock be eliminated from the Certificate of Incorporation, as heretofore amended, of the Company.
RESOLVED FURTHER, that the officers of the Company be, and hereby are, authorized and directed to file a Certificate of Elimination with the office of the Secretary of State of the State of Delaware setting forth a copy of these resolutions whereupon all matters set forth in the Certificate of Designation with respect to such Preferred Stock shall be eliminated from the Certificate of Incorporation, as heretofore amended, of the Company.
FOURTH: That, in accordance with Section 151(g) of the DGCL, all matters set forth in the Certificate of Designation with respect to the Preferred Stock be and hereby are, eliminated from the Certificate of Incorporation and the shares of Preferred Stock hereby are returned to the status of authorized but unissued shares of preferred stock of the Company, without designation as to series.
IN WITNESS WHEREOF, the Company has caused this Certificate of Elimination to be executed by its duly authorized officer this 3rd day of August, 2020.
| FRANCESCA’S HOLDINGS CORPORATION | ||
| By: | /s/ Cynthia Thomassee | |
| Name: | Cynthia Thomassee | |
| Title: | Executive Vice President and Chief Financial Officer | |
Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 to Rights Agreement (this “Amendment”), dated as of July 31, 2020, between Francesca’s Holdings Corporation, a Delaware corporation (the “Company”), and Computershare Trust Company, N.A., as Rights Agent (the “Rights Agent”), amends that certain Rights Agreement, dated as of August 1, 2019, between the Company and the Rights Agent (the “Rights Agreement”); all capitalized terms not defined herein shall have the meanings ascribed to such terms in the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that it is desirable to amend the Rights Agreement as set forth herein;
WHEREAS, subject to certain limited exceptions, Section 27 of the Rights Agreement provides that the Company may, in its sole and absolute discretion, and the Rights Agent shall if the Company so directs, amend any provision of the Rights Agreement in any respect without the approval of any holders of the Rights;
WHEREAS, this Amendment is permitted by Section 27 of the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company hereby directs that the Rights Agreement shall be amended as set forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing premises and mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Rights Agent hereby agree as follows:
Section 1. Amendment to Section 7(a). Clause (i) of Section 7(a) of the Rights Agreement is hereby amended to read in its entirety as follows:
“(i) the Close of Business on August 1, 2020 (the “Final Expiration Date”),”
Section 2. Addition of New Section 36. The Rights Agreement is amended by adding a new Section 36 thereto, which shall read as follows:
“Section 36. Termination. Notwithstanding any provision of this Agreement to the contrary, except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall terminate and shall have no further force or effect as of August 1, 2020 and all Rights established hereunder shall automatically expire at such time.”
Section 3. Effective Date; Certification. This Amendment shall be deemed effective as of the date first written above, as if executed on such date. The officer of the Company executing this Amendment hereby certifies to the Rights Agent that the amendment to the Rights Agreement set forth in this Amendment is in compliance with Section 27 of the Rights Agreement and the certification contained in this Section 3 shall constitute the certification required by Section 27 of the Rights Agreement.
Section 4. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by, and construed in accordance with, the laws of such State applicable to contracts made and to be performed entirely within such State; provided, however, that all provisions regarding the rights, obligations, duties and liabilities of the Rights Agent hereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts made and to be performed entirely within such State.
Section 5. Severability. The terms, provisions, covenants or restrictions of this Amendment shall be deemed severable and the invalidity or unenforceability of any term, provision, covenant or restriction shall not affect the validity or enforceability of any other term, provision, covenant or restriction hereof. If any term, provision, covenant or restriction of this Amendment, or the application thereof to any person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable term, provision, covenant or restriction shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable term, provision, covenant or restriction and (b) the remainder of this Amendment and the application of such term, provision, covenant or restriction to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such term, provision, covenant or restriction, or the application thereof, in any other jurisdiction; provided, further, that if any such excluded term, provision, covenant or restriction shall adversely affect the rights, immunities, duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately.
Section 6. Counterparts. This Amendment may be executed in any number of counterparts (including by facsimile, PDF or similar method) and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Amendment executed and/or transmitted electronically shall have the same authority, effect and enforceability as an original signature.
Section 7. No Modification. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Rights Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect.
Section 8. Headings. The headings of the sections of this Amendment have been inserted for convenience of reference only and shall in no way restrict or otherwise modify any of the terms or provisions hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date and year first above written.
| FRANCESCA’S HOLDINGS CORPORATION | ||
| By: | /s/ Cynthia Thomassee | |
| Name: Cynthia Thomassee | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| COMPUTERSHARE TRUST COMPANY, N.A., | ||
| as Rights Agent | ||
| By: | /s/ Patrick Hayes | |
| Name: Patrick Hayes | ||
| Title: Vice President & Manager | ||
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