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):
March 20, 2018
GNC HOLDINGS, INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware
(State of Incorporation)
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001-35113
(Commission File Number)
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20-8536244
(IRS Employer Identification No.)
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300 Sixth Avenue
Pittsburgh, Pennsylvania 15222
(Address of principal executive offices, including zip code)
(412) 288-4600
(Registrant’s telephone number, including area code)
N/A
(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 (
see
General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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[x]
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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[ ]
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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[ ]
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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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
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Item 1.01 Entry into a Material Definitive Agreement
On March 20, 2018, General Nutrition Centers, Inc. (“GNC Nutrition”) entered into the First Amendment (the “First Amendment”) to its ABL Credit Agreement (the “Existing ABL Credit Agreement”).
The First Amendment amends Section 9.4(b) of the Existing ABL Credit Agreement to clarify that assignments of ABL FILO term loans do not require the consent of the letter of credit issuing banks or the swingline loan lender.
The First Amendment is effective as of March 20, 2018. Except as expressly amended by the First Amendment, the provisions of the Existing Credit Agreement are and shall remain in full force and effect.
A copy of the First Amendment is attached as Exhibit 99.1 to this Current Report on Form 8-K.
Forward-Looking Statements
This release contains certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 with respect to the Company's financial condition, results of operations and business that is not historical information. Forward-looking statements can be identified by the use of terminology such as "subject to," "believes," "anticipates," "plans," "expects," "intends," "estimates," "projects," "may," "will," "should," "can," the negatives thereof, variations thereon and similar expressions, or by discussions regarding dividend, share repurchase plan, strategy and outlook. While GNC believes there is a reasonable basis for its expectations and beliefs, they are inherently uncertain. The Company may not realize its expectations and its beliefs may not prove correct. Many factors could affect future performance and cause actual results to differ materially from those matters expressed in or implied by forward-looking statements, including but not limited to unfavorable publicity or consumer perception of the Company's products; costs of compliance and any failure on management's part to comply with new and existing governmental regulations governing our products; limitations of or disruptions in the manufacturing system or losses of manufacturing certifications; disruptions in the distribution network; or failure to successfully execute the Company's growth strategy, including any inability to expand franchise operations or attract new franchisees, any inability to expand company-owned retail operations, any inability to grow the international footprint, any inability to expand the e-commerce businesses, or any inability to successfully integrate businesses that are acquired. The Company undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. Actual results could differ materially from those described or implied by such forward-looking statements. For a listing of factors that may materially affect such forward-looking statements, please refer to the Company's Annual Report on Form 10-K for the year ended December 31, 2017.
GNC cannot provide any assurances about the timing, terms or interest rate associated with the Transactions , or that any agreement will ultimately be reached. This document will not constitute an offer to sell or the solicitation of an offer to buy any securities, nor will there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction.
Additional Information About the Equity Investment and Where to Find It
As previously disclosed in the Company’s Current Report on Form 8-K filed on February 13, 2018, the Company entered into a Securities Purchase Agreement by and between the Company and Harbin Pharmaceutical Group Holdings Co., Ltd. (the “Investor”), pursuant to which the Company agreed to issue and sell to the Investor, and the Investor agreed to purchase from the Company shares of a newly created series of convertible perpetual preferred stock of the Company, designated as “Series A Convertible Preferred Stock”. This communication is being made in respect of the proposed transaction involving the Company and the Investor. A special stockholder meeting will be announced soon to obtain stockholder approval in connection with the proposed issuance of Convertible Preferred Stock to the Investor. The Company expects to file with the Securities and Exchange Commission (the “SEC”) a proxy statement and other relevant documents in connection with the proposed equity issuance. The definitive proxy statement will be sent or given to the shareholders of the Company and will contain important information about the proposed equity issuance and related matters. INVESTORS OF THE COMPANY ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT AND OTHER RELEVANT MATERIALS CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, THE INVESTOR AND THE PROPOSED ISSUANCE OF CONVERTIBLE PREFERRED STOCK. Investors may obtain a free copy of these materials (when they are available) and other documents filed by GNC with the SEC at the SEC’s website at www.sec.gov, at the Company’s website at www.gnc.com or by sending a written request to the Company at GNC Holdings, Inc., 300 Sixth Avenue, Pittsburgh, Pennsylvania 15222, Attention: Secretary.
Participants in Solicitation
The Company and its directors, executive officers and certain other members of management and employees may be deemed to be participants in soliciting proxies from its stockholders in connection with the proposed issuance of convertible preferred shares. Information regarding the persons who may, under the rules of the SEC, be considered to be participants in the solicitation of the Company’s stockholders in connection with the proposed issuance of convertible preferred shares will be set forth in the Company’s definitive proxy statement for its special stockholder meeting. Additional information regarding these individuals and any direct or indirect interests they may have in the proposed issuance of convertible preferred shares will be set forth in the definitive proxy statement when and if it is filed with the SEC in connection with the proposed issuance of convertible preferred shares.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits:
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Exhibit No.
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Description
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99.1
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The First Amendment
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SIGNATURE
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.
March 21, 2018
GNC HOLDINGS, INC.
By:
/s/ Tricia K. Tolivar
Tricia K. Tolivar
Executive Vice President and
Chief Financial Officer
Exhibit Index
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Exhibit Number
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Description
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99.1
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FIRST AMENDMENT
FIRST AMENDMENT, dated as of March 20, 2018 (this “
Amendment
”), to the ABL Credit Agreement, dated as of February 28, 2018 (the “
Existing Credit Agreement
”; and as amended by this Amendment, the “
Credit Agreement
”), among GENERAL NUTRITION CENTERS, INC., a Delaware corporation (the “
ABL Administrative Borrower
”), each other Borrower (as defined therein) from time to time party thereto, the several banks and other financial institutions or entities from time to time parties thereto (the “
Lenders
”) and JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the “
Administrative Agent
”) and collateral agent.
W I T N E S S E T H
:
WHEREAS, the Borrowers, the Lenders, the Administrative Agent and certain other financial institutions are parties to the Existing Credit Agreement;
WHEREAS, the ABL Administrative Borrower and the Administrative Agent have identified an ambiguity, omission, mistake, error, defect or inconsistency in Section 9.4(b) of the Existing Credit Agreement; and
WHEREAS, pursuant to Section 9.2(c) of the Existing Credit Agreement, the parties hereto hereby agree to amend the Existing Credit Agreement as set forth herein, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:
1.
Defined Terms
. Unless otherwise defined herein or the context otherwise requires, capitalized terms which are defined in the Credit Agreement are used herein as therein defined.
2.
Notice
. Pursuant to Section 9.2(c) of the Existing Credit Agreement, the ABL Administrative Borrower and the Administrative Agent hereby provide notice to the Lenders that Section 9.4(b) of the Existing Credit Agreement is hereby amended in order to cure an ambiguity, omission, mistake, error, defect or inconsistency in the Existing Credit Agreement, and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders on or prior to the fifth Business Day after the first date a final draft of this Amendment was posted or otherwise provided for review by the Lenders, which posting date was March 12, 2018. In accordance with the foregoing, the Existing Credit Agreement is amended as set forth in Section 3 below.
3.
Amendments
. Effective as of the First Amendment Effective Date (as defined below), Section 9.4(b) of the Existing Credit Agreement is hereby amended as follows:
(a) by inserting “;
provided
that no consent of any Issuing Bank shall be required for an assignment of all or any portion of a FILO Term Loan” immediately following “each Issuing Bank” in clause (C) thereof; and
(b) by inserting “;
provided
that no consent of the Swingline Lender shall be required for an assignment of all or any portion of a FILO Term Loan” immediately following “the Swingline Lender” in clause (D) thereof.
4.
Effectiveness
. This Amendment shall become effective on the date (the “
First Amendment Effective Date
”) on which:
(a) The Administrative Agent shall have received this Amendment executed and delivered by the ABL Administrative Borrower and the Administrative Agent.
(b) The Administrative Agent shall not have received a written objection to this Amendment from the Required Lenders on or prior to the fifth Business Day after the first date a final draft of this Amendment was posted or otherwise provided for review by the Lenders, which posting date was March 12, 2018.
5.
Continuing Effect of the Credit Agreement
. This Amendment shall not constitute an amendment or waiver of any provision of the Existing Credit Agreement not expressly referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Borrowers that would require a waiver or consent of the Lenders and the Administrative Agent. Except as expressly amended hereby, the provisions of the Existing Credit Agreement are and shall remain in full force and effect.
6.
Loan Document
. Each of this Amendment and the Credit Agreement is a Loan Document.
7.
GOVERNING LAW; WAIVER OF JURY TRIAL; MISCELLANEOUS
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(a)
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(b)
EACH PARTY HERETO HEREBY AGREES TO THE TERMS SET FORTH IN SECTIONS 9.9 AND 9.10 OF THE CREDIT AGREEMENT AS IF SUCH SECTIONS WERE SET FORTH IN FULL HEREIN
MUTATIS MUTANDIS
.
(c) On and after the First Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import referring to the Existing Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof”, or words of like import referring to the Existing Credit Agreement shall mean and be a reference to the Credit Agreement.
(d) This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. This Amendment may be delivered by facsimile or electronic transmission of the relevant signature pages hereof.
8.
Severability
. If any provision of this Amendment shall be determined to be illegal or invalid as to one or more of the parties hereto, then such provision shall remain in effect with respect to all parties, if any, as to whom such provision is neither illegal nor invalid, and in any event all other provisions hereof shall remain effective and binding on the parties hereto.
9
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Headings
. Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
GENERAL NUTRITION CENTERS, INC., as ABL Administrative Borrower
By:
/s/ Amy N. Davis
Name: Amy N. Davis
Title: Vice President, Corporate Controller and Treasurer
[
Signature Page to First Amendment to GNC ABL Credit Agreement
]
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By:
/s/ James A. Knight
Name: James A. Knight
Title: Executive Director
[
Signature Page to First Amendment to GNC ABL Credit Agreement
]