| Filed Pursuant to Rule 424(b)(3) | ||
| PROSPECTUS | Registration No. 333-142631 |
 |
|
7,663,191
Shares
Common
Stock
|
This
prospectus covers the resale of up to 7,663,191 shares of our common stock,
par
value
$0.01 per share. These shares were acquired by our stockholders in
connection with our acquisitions of Athlete’s Foot Brands, LLC, Bill Blass
Holding Co., Inc., MaggieMoo’s International, LLC and the Waverly brand from F.
Schumacher & Co.
The
shares covered by this prospectus include 4,120,597
currently outstanding shares owned by some of our stockholders, 950,000 shares
of our common stock issuable upon the exercise of outstanding warrants held
by
some of our stockholders and up to an additional 2,592,594 shares of our common
stock issuable in satisfaction of contingent earn-out obligations set forth
in
the definitive agreements pursuant to which we acquired Athlete’s Foot Brands,
LLC, Bill Blass Holding Co., Inc. and MaggieMoo’s International,
LLC.
We
will
not receive any proceeds from the sale of shares by our selling stockholders,
but we will incur expenses in connection with the offering. We will, however,
receive the exercise price of the warrants if and when those warrants are
exercised by the selling stockholders. None of the warrants has been exercised
as of the date of this prospectus.
Our
common stock is traded on the Nasdaq Global Market under the symbol NEXC. On
May
29, 2007, the last reported sale price of our common stock on the Nasdaq Global
Market was $12.43 per share.
Our
registration of the shares of common stock covered by this prospectus does
not
mean that the selling stockholders will offer or sell any of the shares. The
selling stockholders may sell the shares of common stock covered by this
prospectus in a number of different ways and at varying prices. We provide
more
information about how the selling stockholders may sell the shares in the
section entitled "Plan of Distribution" beginning on page 11.
Investing
in our common stock involves risks. See "Risk Factors" on page
1.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is May 30, 2007
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11
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1
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13
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2
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13
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4
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14
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11
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You
should rely only on the information contained in or incorporated by reference
into this prospectus and any applicable prospectus supplements. We have not
authorized anyone to provide you with different or additional information.
The
information contained in this prospectus is accurate only as of the date of
this
prospectus, regardless of the time of delivery of this prospectus or any sale
of
common stock. This prospectus is not an offer to sell or solicitation of an
offer to buy these shares of common stock in any circumstances under which
the
offer or solicitation is unlawful.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the SEC under
which the selling stockholders may offer from time to time up to an aggregate
of
7,663,191 shares of our common stock in one or more offerings. If required,
each
time a selling stockholder offers common stock, in addition to this prospectus,
we will provide you with a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may
also
add, update or change information contained in this prospectus. To the extent
that any statement that we make in a prospectus supplement is inconsistent
with
statements made in this prospectus, the statements made in this prospectus
will
be deemed modified or superseded by those made in a prospectus supplement.
You
should read this prospectus and any prospectus supplement as well as additional
information described under "Where You Can Find More Information" and
"Incorporation of Documents by Reference."
The
terms
"NexCen," "we," "us," and "our" as used in this prospectus refer to NexCen
Brands, Inc. and its subsidiaries. The phrase "this prospectus" refers to this
prospectus and any applicable prospectus supplement, unless the context
otherwise requires.
All
trademarks, tradenames and service names referred to in this prospectus or
incorporated by reference into this prospectus are property of their respective
owners.
Because
this is a summary, it does not contain all the information about us that may
be
important to you. You should read the more detailed information and the
financial statements and related notes which are incorporated by reference
in
this prospectus.
NexCen
Brands engages in the acquisition and management of established consumer brands
in intellectual property-centric industries. NexCen’s goal is to be the world
leader in brand management for the 21st century. Our business is focused on
acquiring, managing and developing intellectual property, which we refer to
as
IP, and IP-centric businesses. IP-centric companies own, license or otherwise
possess rights to trademarks, trade names, copyrights, patents, trade secrets
and other intangible assets. IP that we have acquired and expect to acquire
in
the future includes trademarks, trade names, copyrights, franchise rights,
patents, trade secrets, know-how and other similar, valuable property, primarily
used in the retail and consumer branded products and franchise businesses.
In
building our IP business, we expect to focus on three vertical segments: retail
franchising, consumer branded products and quick service restaurant franchising
(which we refer to as “QSR” franchising).
We
commenced our IP business in June 2006, when we acquired UCC Capital
Corporation, which we refer to as UCC. Upon the closing of that acquisition,
Robert W. D’Loren, who was the president and chief executive officer of UCC,
became our president and chief executive officer and a member of our Board
of
Directors.
In
November 2006, we entered the retail franchising business by acquiring Athlete’s
Foot Brands, LLC, along with an affiliated company and certain related assets.
As a result of this acquisition, we are now the owner of The Athlete’s Foot
brand and related marks. The Athlete’s Foot is one of the largest athletic
footwear and apparel franchisors with over 600 retail locations in over 40
countries.
In
February 2007, we entered the consumer branded products business by acquiring
Bill Blass Holding Co., Inc. and two affiliated businesses. The Bill Blass
label
represents timeless style, modern American and is an American legacy brand
in
the fashion industry.
Also
in
February 2007, we acquired MaggieMoo’s International, LLC (“MaggieMoo’s”) and
the assets of Marble Slab Creamery, Inc. (“Marble Slab”), two well known and
established brands within the hand-mixed, premium ice cream category. With
these
acquisitions, NexCen entered the QSR franchising business.
On
May 2, 2007, we acquired the Waverly brand from F.
Schumacher & Co. Waverly is a home décor lifestyle
brand for harmonious and tasteful decorating.
We
are
evaluating various other potential acquisitions and are actively in discussions
to acquire additional IP-centric businesses. More
detailed information about The Athlete’s Foot, Bill Blass, MaggieMoo’s and
Marble Slab acquisitions and the recently closed Waverly acquisition
can be found in our Annual Report on Form 10-K/A for the fiscal year ended
December 31, 2006, which is incorporated by reference into this
prospectus.
NexCen
is
a Delaware corporation. Our principal executive offices are located at 1330
Avenue of the Americas, 34th
Floor,
New York, NY 10019, and our telephone number is (212) 277-1100. Our website
address is www.nexcenbrands.com. Information on our website should not be
construed as being incorporated by reference into, or considered a part of,
this
prospectus.
Our
business is subject to significant risks. You should carefully consider the
risks and uncertainties described in this prospectus and the documents
incorporated by reference herein, including the risks and uncertainties
described in our consolidated financial statements and the notes to those
financial statements and the risks and uncertainties described under the caption
“Risk Factors” included in Part I, Item 1A of our Annual Report on Form10-K/A
for the year ended December 31, 2006, which are incorporated by reference in
this prospectus. The risks and uncertainties described in this prospectus and
the documents incorporated by reference herein are not the only ones facing
us.
Additional risks and uncertainties that we do not presently know about or that
we currently believe are not material may also adversely affect our business.
If
any of the risks and uncertainties described in this
prospectus
or the documents incorporated by reference herein actually occur, our business,
financial condition and results of operations could be adversely affected in
a
material way. This could cause the trading price of our common stock to decline,
perhaps significantly, and you may lose part or all of your
investment.
In
addition to the foregoing, you should also consider the following risk
factor:
Our
stock price may be volatile, and the market price of our common stock may
decline.
The
stock
market in general, and the market for stocks of companies similar to ours,
has
been highly volatile. As a result, the market price of our common stock is
likely to be similarly volatile, and investors in our common stock may
experience a decrease, which could be substantial, in the value of their stock,
including decreases unrelated to our operating performance or prospects, and
could lose part or all of their investment. The price of our common stock could
be subject to wide fluctuations in response to a number of factors, including
those described elsewhere in this prospectus or the documents incorporated
by
reference herein and others such as:
|
·
|
variations
in our operating performance and the performance of our
competitors;
|
|
·
|
actual
or anticipated fluctuations in our quarterly or annual operating
results;
|
|
·
|
publication
of research reports by securities analysts about us or our competitors
or
our industry;
|
|
·
|
our
failure or the failure of our competitors to meet analysts’ projections or
guidance that we or our competitors may give to the
market;
|
|
·
|
additions
and departures of key personnel;
|
|
·
|
strategic
decisions by us or our competitors, such as acquisitions, strategic
investments or changes in business
strategy;
|
|
·
|
speculation
in the press or investment
community;
|
|
·
|
changes
in accounting principles;
|
|
·
|
terrorist
acts, acts of war or periods of widespread civil
unrest;
|
|
·
|
changes
in general market and economic conditions;
and
|
|
·
|
the
factors discussed in the bullet points under “Forward-Looking Statements”
below.
|
In
the
past, securities class action litigation has often been initiated against
companies following periods of volatility in their stock price. This type of
litigation could result in substantial costs and divert our management’s
attention and resources, and could also require us to make substantial payments
to satisfy judgments or to settle litigation.
This
prospectus and the information incorporated by reference herein contain
forward-looking statements within the meaning of the federal securities laws
and
the Private Securities Litigation Reform Act of 1995. These statements may
be
found throughout this prospectus and the documents incorporated by reference
herein. Forward-looking statements typically are identified by the use of terms
such as “may,” “will,” “should,” “expect,” “anticipate,” “believe,” “estimate,”
“intend” and similar words, although some forward-looking statements are
expressed differently. You should consider statements that contain these words
carefully because they describe our expectations, plans, strategies and goals
and our beliefs concerning future business conditions, our future results of
operations, our future financial position, and our business outlook or state
other “forward-looking” information. The information included and incorporated
by reference under the heading “Risk Factors” in this prospectus provides
examples of risks, uncertainties and events that could cause our actual results
to differ materially from the
expectations
expressed in our forward-looking statements. These risks, uncertainties and
events also include, but are not limited to, the following:
|
·
|
we
may not be successful in implementing the our new IP
strategy;
|
|
·
|
we
may not be able to acquire IP or IP centric companies or finance
or
exploit them on terms that are acceptable to
us;
|
|
·
|
we
are likely to face substantial competition in seeking to acquire
and
market desirable IP and IP centric companies, and competitors may
have
substantially greater resources than we
do;
|
|
·
|
we
may not be successful in operating or expanding our acquired businesses
or
integrating them into an overall IP business
strategy;
|
|
·
|
we
may not be able to borrow desired amounts at desired times under
our
master loan agreement;
|
|
·
|
we
will be subject to risks associated with incurring indebtedness,
including
interest expense and the obligation to satisfy covenants contained
in our
master loan agreement, and these could have a negative impact on
our
business and results and could reduce our flexibility in some
circumstances;
|
|
·
|
risks
associated with marketing and licensing our acquired trademarks and
with
successfully developing and marketing new products particularly in
light
of rapidly changing fashion and market
trends;
|
|
·
|
risks
associated with the ability of licensees and franchisees to successfully
market and sell branded products,
competition;
|
|
·
|
we
may not be able to realize value from our accumulated tax loss carry
forwards, because of a failure to generate sufficient taxable earnings,
regulatory limits or both;
|
|
·
|
general
regional and national economic conditions;
and
|
|
·
|
loss
or departure of one or more members of our senior
management.
|
The
forward-looking statements made in this prospectus or the documents incorporated
by reference herein relate only to events as of the date on which the statements
were made. We undertake no obligation to update any forward-looking statement
to
reflect events or circumstances after the date on which the statement was made
or to reflect the occurrence of unanticipated events.
The
shares to be offered by the selling stockholders are "restricted" securities
under applicable federal and state securities laws and are being registered
under the Securities Act to give the selling stockholders the opportunity to
sell these shares publicly. The registration of these shares does not require
that any of the shares be offered or sold by the selling stockholders. The
selling stockholders may from time to time offer and sell all or a portion
of
their shares indicated below in privately negotiated transactions or on the
Nasdaq Global Market or any other market on which our common stock may
subsequently be listed.
The
registered shares may be sold directly or through brokers or dealers, or in
a
distribution by one or more underwriters on a firm commitment or best effort
basis. To the extent required, the names of any agent or broker-dealer and
applicable commissions or discounts and any other required information with
respect to any particular offer will be set forth in a prospectus supplement.
See "Plan of Distribution," beginning on page 11. The selling stockholders
and
any agents or broker-dealers that participate with the selling stockholders
in
the distribution of registered shares may be deemed to be "underwriters" within
the meaning of the Securities Act, and any commissions received by them and
any
profit on the resale of the registered shares may be deemed to be underwriting
commissions or discounts under the Securities Act.
No
estimate can be given as to the amount or percentage of our common stock that
will be held by the selling stockholders after any sales made pursuant to this
prospectus because the selling stockholders are not required to sell any of
the
shares being registered under this prospectus. The following table assumes
that
the selling stockholders will sell all of the shares listed in this
prospectus.
The
following table sets forth information with respect to the beneficial ownership
of our common stock held, as of May 29, 2007, by the selling stockholders and
the number of shares being offered hereby and information with respect to shares
to be beneficially owned by the selling stockholders after completion of this
offering. The percentages in the following table reflect the shares beneficially
owned by the selling stockholders as a percentage of the total number of shares
of our common stock outstanding as of May 29, 2007.
|
Shares
Beneficially Owned
Prior
to the Offering (1)
|
Shares
Offered Hereby
|
Shares
Beneficially Owned
After
the Offering (2)
|
||||||||||||||
|
Name
|
Number
|
Percentage
|
Number
|
Number
|
Percentage
|
|||||||||||
|
Athlete’s
Foot Marketing Associates, LLC (3) (48)
|
1,413,423
|
2.8
|
%
|
1,413,423
|
0
|
*
|
||||||||||
|
Robert
J. Corliss (4)
|
500,000
|
*
|
500,000
|
0
|
*
|
|||||||||||
|
Haresh
T. Tharani (5) (49)
|
730,606
|
1.45
|
%
|
730,606
|
0
|
*
|
||||||||||
|
Mahesh
T. Tharani (6) (49)
|
730,606
|
1.45
|
%
|
730,606
|
0
|
*
|
||||||||||
|
Michael
Groveman (7) (49)
|
730,606
|
1.45
|
%
|
730,606
|
0
|
*
|
||||||||||
|
Designer
Equity Holding Company, LLC (8)
|
--
|
--
|
400,000
|
0
|
*
|
|||||||||||
|
Joseph
Anderson (9) (50) +
|
813
|
*
|
813
|
0
|
*
|
|||||||||||
|
Terry
Armacost (10) (50) +
|
4,790
|
*
|
4,790
|
0
|
*
|
|||||||||||
|
Debra
Benedek (11) (50) +
|
4,790
|
*
|
4,790
|
0
|
*
|
|||||||||||
|
Ed
Blechschmidt (12) (50) +
|
478
|
*
|
478
|
0
|
*
|
|||||||||||
|
James
Blue, Sr. (13) (50) +
|
571
|
*
|
571
|
0
|
*
|
|||||||||||
|
Nicholas
Bocella (14) (50) +
|
8,427
|
*
|
8,427
|
0
|
*
|
|||||||||||
|
Kelly
Finney (15) (50) +
|
2,799
|
*
|
2,799
|
0
|
*
|
|||||||||||
|
Andrew
Friedman (16) (50) +
|
5,859
|
*
|
5,859
|
0
|
*
|
|||||||||||
|
Stan
Friedman (17) (50) +
|
4,790
|
*
|
4,790
|
0
|
*
|
|||||||||||
|
GW
Investments (18) (50) +
|
5,323
|
*
|
5,323
|
0
|
*
|
|||||||||||
|
Jonathan
Jameson (19) (50) +
|
44,632
|
*
|
44,632
|
0
|
*
|
|||||||||||
|
Bernard
Katz (20) (50) +
|
139
|
*
|
139
|
0
|
*
|
|||||||||||
|
Robert
Kenzer (21) (50) +
|
346
|
*
|
346
|
0
|
*
|
|||||||||||
|
Michael
Kickham (22) (50) +
|
2,177
|
*
|
2,177
|
0
|
*
|
|||||||||||
|
Kathy
Little (23) (50) +
|
718
|
*
|
718
|
0
|
*
|
|||||||||||
|
Richard
Loynd (24) (50) +
|
17,231
|
*
|
17,231
|
0
|
*
|
|||||||||||
|
Christopher
Maguire (25) (50) +
|
1,138
|
*
|
1,138
|
0
|
*
|
|||||||||||
|
James
Maguire, Jr. (26) (50) +
|
1,439
|
*
|
1,439
|
0
|
*
|
|||||||||||
|
James
Maguire, Sr. (27) (50) +
|
23,078
|
*
|
23,078
|
0
|
*
|
|||||||||||
|
Patricia
Maguire (28) (50) +
|
1,138
|
*
|
1,138
|
0
|
*
|
|||||||||||
|
Shares
Beneficially Owned
Prior
to the Offering (1)
|
Shares
Offered Hereby
|
Shares
Beneficially Owned
After
the Offering (2)
|
||||||||||||||
|
Name
|
Number
|
Percentage
|
Number
|
Number
|
Percentage
|
|||||||||||
|
Carol
McCarthy (29) (50) +
|
1,060
|
*
|
1,060
|
0
|
*
|
|||||||||||
|
Barry
Mills (30) (50) +
|
2,894
|
*
|
2,894
|
0
|
*
|
|||||||||||
|
Stuart
Olsten (31) (50) +
|
339,340
|
*
|
339,340
|
0
|
*
|
|||||||||||
|
Godfrey
Padberg (32) (50) +
|
9,625
|
*
|
9,625
|
0
|
*
|
|||||||||||
|
Ann
Peters (33) (50) +
|
508
|
*
|
508
|
0
|
*
|
|||||||||||
|
Ira
Quint Revocable Trust (34) (50) +
|
7,521
|
*
|
7,521
|
0
|
*
|
|||||||||||
|
Ridgewood
Parters (35) (50) +
|
4,183
|
*
|
4,183
|
0
|
*
|
|||||||||||
|
Lawrence
Salpeter (36) (50) +
|
276
|
*
|
276
|
0
|
*
|
|||||||||||
|
Michael
Schechter (37) (50) +
|
1,285
|
*
|
1,285
|
0
|
*
|
|||||||||||
|
Eric
Segal (38) (50) +
|
69
|
*
|
69
|
0
|
*
|
|||||||||||
|
Laurie
Shahon (39) (50) +
|
2,706
|
*
|
2,706
|
0
|
*
|
|||||||||||
|
Richard
Smith (40) (50) +
|
1,653
|
*
|
1,653
|
0
|
*
|
|||||||||||
|
Thomas
Stafford (41) (50) +
|
5,391
|
*
|
5,391
|
0
|
*
|
|||||||||||
|
Paul
Stratmeyer (42) (50) +
|
1,437
|
*
|
1,437
|
0
|
*
|
|||||||||||
|
Melissa
Sullivan (43) (50) +
|
1,138
|
*
|
1,138
|
0
|
*
|
|||||||||||
|
TSI
Holding Company (44) (50) +
|
3,201
|
*
|
3,201
|
0
|
*
|
|||||||||||
|
Michael
Weiss (45) (50) +
|
1,362
|
*
|
1,362
|
0
|
*
|
|||||||||||
|
Susan
Wilkes (46) (50) +
|
718
|
*
|
718
|
0
|
*
|
|||||||||||
|
Leonard
Wolf (47) (50) +
|
313
|
*
|
313
|
0
|
*
|
|||||||||||
|
Ellery
Homestyles, LLC (51)
|
50,000
|
*
|
50,000
|
0
|
*
|
|||||||||||
| * |
Less
than one percent.
|
| + |
Former
securityholders of MaggieMoo’s International,
LLC.
|
| (1) |
Includes
4,120,597 shares of common stock issued and outstanding as of the
date of
this prospectus and 950,000 shares of common stock issuable upon
exercise
of outstanding warrants. The warrant held by Mr. Corliss is currently
exercisable at any time prior to November 7, 2009. The warrant held
by
Designer Equity Holding Company, LLC will become exercisable pursuant
to a
vesting schedule set forth in the warrant and can be exercised prior
to
its expiration on February 15, 2017. The warrant held by Ellery
Homestyles, LLC is currently exercisable and can be exercised prior
to its
expiration on May 2, 2017. Excludes 2,592,594 shares of common stock
that
we may be obligated to issue to the selling stockholders pursuant
to the
Athlete’s Foot Purchase Agreement, the Bill Blass Purchase Agreement and
the MaggieMoo’s Merger Agreement (as each is defined
below).
|
| (2) |
Assumes
that the selling stockholders dispose of all the shares of common
stock
covered by this prospectus, and do not acquire beneficial ownership
of any
additional shares. The registration of these shares does not necessarily
mean that the selling stockholders will sell all or any portion of
the
shares covered by this prospectus.
|
| (3) |
Includes
770,958 shares held in escrow until November 7, 2007 to secure
indemnification obligations under the Equity Interest and Asset Purchase
Agreement, dated August 21, 2006, by and among Aether Holdings, Inc.,
NexCen Franchise Brands, Inc., NexCen Franchise Management, Inc.,
Athlete’s Foot Marketing Associates, LLC, Athlete’s Foot Brands, LLC,
Robert J. Corliss, Donald Camacho, Timothy Brannon and Martin Amschler
(the “Athlete’s Foot Purchase
Agreement”).
|
| (4) |
Consists
of shares issuable upon the exercise of a currently exercisable warrant
to
purchase shares of common stock.
|
| (5) |
Includes
11,753 shares held in escrow to satisfy working capital adjustments
and
258,580 shares held in escrow until February 16, 2008 to satisfy
indemnification obligations under the Stock Purchase Agreement, dated
December 19, 2006, by and among NexCen Brands, Inc., Blass Acquisition
Corp., Haresh T. Tharani, Mahesh T. Tharani, Michael Groveman, Bill
Blass
Holding Co., Inc., Bill Blass International LLC and Bill Blass Licensing
Co., Inc (the “Bill Blass Purchase
Agreement”).
|
| (6) |
Includes
11,753 shares held in escrow to satisfy working capital adjustments
and
258,580 shares held in escrow until February 16, 2008 to satisfy
indemnification obligations under the Bill Blass Purchase
Agreement.
|
| (7) |
Includes
11,753 shares held in escrow to satisfy working capital adjustments
and
258,580 shares held in escrow until February 16, 2008 to satisfy
indemnification obligations under the Bill Blass Purchase
Agreement.
|
| (8) |
Although
the warrant is not currently exercisable and is therefore not included
in
Designer Equity Holding Company, LLC’s beneficial ownership of shares, the
shares issuable upon exercise of the warrant, once vested and exercisable,
are included for resale in this
prospectus.
|
| (9) |
Includes
444 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the Agreement and Plan of Merger,
dated
February 14, 2007, by and among NexCen Brands, Inc., MM Acquisition
Sub,
LLC, MaggieMoo’s International, LLC, Stuart Olsten, Jonathan Jameson and
the Securityholders’ Representative (the “MaggieMoo’s Merger
Agreement”).
|
| (10) |
Includes
2,613 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (11) |
Includes
2,613 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (12) |
Includes
261 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (13) |
Includes
312 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (14) |
Includes
4,597 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (15) |
Includes
1,527 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (16) |
Includes
3,196 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (17) |
Includes
2,613 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (18) |
Includes
2,904 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (19) |
Includes
24,345 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (20) |
Includes
76 shares held back until March 1, 2009 to satisfy adjustments, fees,
and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (21) |
Includes
189 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (22) |
Includes
1,188 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (23) |
Includes
392 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (24) |
Includes
9,399 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (25) |
Includes
621 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (26) |
Includes
785 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (27) |
Includes
12,588 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (28) |
Includes
621 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (29) |
Includes
578 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (30) |
Includes
1,579 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (31) |
Includes
185,095 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (32) |
Includes
5,250 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (33) |
Includes
277 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (34) |
Includes
4,103 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (35) |
Includes
2,282 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (36) |
Includes
151 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (37) |
Includes
701 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (38) |
Includes
38 shares held back until March 1, 2009 to satisfy adjustments, fees,
and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (39) |
Includes
1,476 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (40) |
Includes
902 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (41) |
Includes
2,941 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (42) |
Includes
784 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (43) |
Includes
621 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (44) |
Includes
1,746 shares held back until March 1, 2009 to satisfy adjustments,
fees,
and indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (45) |
Includes
743 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (46) |
Includes
392 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (47) |
Includes
171 shares held back until March 1, 2009 to satisfy adjustments,
fees, and
indemnification obligations under the MaggieMoo’s Merger
Agreement.
|
| (48) |
Excludes
157,594 additional shares that may be issued under the terms of the
Athlete’s Foot Purchase Agreement. Athlete’s
Foot Marketing Associates, LLC is entitled to receive a one-time
contingent consideration payment of up to an additional $8.5 million
payable, if any, in the same proportion of cash and shares of our
common
stock as the initial consideration. The contingent consideration
payment
will be determined based upon Athlete’s Foot Brands, LLC’s December 31,
2006 audited financial statements and will be determined by taking
the
average of the “Revenue Calculation” and the “EBITDA Calculation” (as
those terms are defined in the Athlete’s Foot Purchase Agreement), for the
four quarters ending December 31, 2006, less the initial consideration.
The number of shares will be based on the actual contingent consideration
payment amount multiplied by the ratio of 11/49 divided by $6.68,
which
was the average closing price of one share of our common stock on
the
Nasdaq Global Market for the five trading days immediately preceding
November 7, 2006. We have assumed a payment of approximately $4.7
million
for the purposes of registering contingent consideration shares to
be
registered by this prospectus.
|
| (49) |
Excludes
the person’s right as a former stockholder of Bill Blass Holding Co., Inc.
to receive a pro rata amount (based on such person’s relative ownership of
Bill Blass Holding Co., Inc.) of an aggregate of 2,300,000 additional
shares that we may become obligated to issue under the terms of the
Bill
Blass Purchase Agreement as earn-out consideration, although the
exact
number of shares issuable will not be determined until the earn-out
becomes payable in March 2008. The former Bill Blass stockholders
are
entitled to receive up to an additional $16.2 million of earn-out
consideration payable in cash or shares of our common stock on March
31,
2008. The number of shares will be based on the average closing price
of
one share of our common stock on the Nasdaq Global Market for the
ten
consecutive trading days ending on (and including) the trading day
prior
to March 31, 2008. The actual earn-out amount will be based on the
amount
by which royalties generated from the Bill Blass trademarks in fiscal
year
2007 multiplied by 5.5 exceed $51.8 million, as adjusted for any
working
capital deficiency. We have assumed a maximum payment of $16.2 million
and
an average closing price of $7.05 per share, which was the price
used to
determine the number of shares issued at the Bill Blass closing,
to
calculate the number of earn-out shares registered by this
prospectus.
|
| (50) |
Excludes
the person’s right as a former securityholder of MaggieMoo’s
International, LLC to receive a pro rata amount (based on such person’s
relative ownership of MaggieMoo’s International, LLC) of an aggregate of
135,000 additional shares that we may become obligated to issue under
the
terms of the MaggieMoo’s Merger Agreement as earn-out consideration,
although the exact number of shares issuable will not be determined
until
the earn-out becomes payable in March 2008. The former MaggieMoo’s
securityholders are entitled to receive up to an additional $2 million
of
earn-out consideration payable in cash or shares of our common stock
on
March 31, 2008. The number of shares will be based on the closing
price of
one share of our common stock on the Nasdaq Global Market on March
31,
2008. The actual earn-out amount will be based on the amount royalty
payments earned during fiscal 2007 exceed royalty payments earned
by
MaggieMoo’s during fiscal 2006, pursuant to a formula set forth in the
MaggieMoo’s Merger Agreement. We have assumed a maximum payment of $2
million (reduced proportionately for cash payments due to non-accredited
former securityholders of MaggieMoo’s International, LLC) and an average
closing price of $10.21 per share, which was the price used to determine
the number of shares issued at the MaggieMoo’s closing, to calculate the
number of earn-out shares registered by this
prospectus.
|
| (51) | Consists of shares issuable upon exercise of a currently exercisable warrant to purchase shares of common stock. |
Summary
of Resale Restrictions
The
shares to be offered hereby are owned by or issuable to the selling stockholders
in connection with The Athlete’s Foot, Bill Blass, MaggieMoo’s and Waverly
acquisitions. In The Athlete’s Foot, Bill Blass and MaggieMoo’s
acquisitions, we also entered into a registration rights agreement with the
selling stockholders under which we agreed to register shares of our common
stock held by or issuable to the selling stockholders. Under the terms of the
warrant issued in the Waverly acquisition, we also agreed to register shares
issuable upon exercise of the warrant. Additionally, certain selling
stockholders agreed to certain resale restrictions which will continue to
restrict the resale of the shares registered by this prospectus.
The
Athlete’s Foot Acquisition
Pursuant
to the Athlete’s Foot Purchase Agreement, at the closing, we issued 1,413,423
shares of our common stock to Athlete’s Foot Marketing Associates, LLC, or AFMA,
and issued a warrant to Robert J. Corliss to purchase up to 500,000 shares
of
our common stock. The shares issued at the closing include 770,958 shares held
in escrow until November 7, 2007 to secure indemnification obligations under
the
Athlete’s Foot Purchase Agreement, all of which shares we have registered under
this prospectus. As part of the acquisition, AFMA and Mr. Corliss agreed to
the
following restrictions on the timing of selling the shares we issued to them
in
the acquisition, even though the shares are registered and eligible for resale
under this prospectus, as follows:
|
Selling
Stockholder
|
Total
Shares Registered by this Prospectus Due to The Athlete’s Foot Acquisition
+
|
Shares
Currently Eligible for Resale
|
Total
Shares Eligible for
Resale
as of November 7, 2007
|
|
Athlete’s
Foot Marketing Associates, LLC (1)
|
1,413,423
|
353,356
|
1,413,423
|
|
Robert
J. Corliss (2)
|
500,000
|
*
|
*
|
| + |
This
prospectus registers an additional 157,594 shares of our common stock
that
we may become obligated to issue under the terms of the Athlete’s Foot
Purchase Agreement as contingent consideration, although the exact
number
of shares issuable will not be determined until the contingent payment
is
determined. Upon issuance, the contingent consideration shares will
subject to resale restrictions. Additionally, 10% of the shares issued
in
satisfaction of the contingent payment will be held in escrow until
November 7, 2007 to secure indemnification obligations under the
Athlete’s
Foot Purchase Agreement. This table does not include the contingent
consideration shares that may be
issued.
|
| * |
The
warrant was issued by the Company to Mr. Corliss to purchase up to
500,000
shares of our common stock at any time prior to November 7, 2009.
The
warrant is currently exercisable by Mr.
Corliss.
|
| (1) |
Pursuant
to a Voting Agreement, dated November 7, 2006, by and between Aether
Holdings, Inc. (NexCen’s predecessor) and AFMA, AFMA agreed not to sell a
number of shares of our common stock equal to 75% of the aggregate
number
of total shares issued to them (including Consideration and True
Up
shares) until November 7, 2007, other than transfers to its affiliates
and
partners or to us to satisfy any indemnity claim. In addition, following
November 7, 2007, AFMA agreed not to sell more than 25% of the aggregate
number of shares held by them in any one calendar
quarter.
|
| (2) |
Pursuant
to a Voting Agreement, dated November 7, 2006, by and between Aether
Holdings, Inc. (NexCen’s predecessor) and Mr. Corliss, Mr. Corliss agreed
not to sell a number of shares of our common stock equal to 75% of
the
aggregate number of shares issuable upon exercise of his warrant
in full
(except to a family member or a trust thereof) for a period of one
year
from the date of exercise. If Mr. Corliss partially exercises his
warrant
such that Mr. Corliss is issued, in the aggregate, fewer than 75%
of the
shares issuable upon full exercise of his warrant, then all of such
shares
issued upon the partial exercise of his warrant will be subject to
the
above mentioned resale restrictions. Until the third anniversary
of the
exercise date, Mr. Corliss also agreed that he will not transfer
more than
25% of the shares issuable upon full exercise of his warrant in any
one
calendar quarter.
|
Bill
Blass Acquisition
Pursuant
to the Bill Blass Purchase Agreement, Haresh T. Tharani, Mahesh T. Tharani
and
Michael Groveman were issued a total of 2,191,818 shares of our common stock
at
the closing of the transaction. These shares include 35,259 shares held in
escrow to satisfy working capital adjustments, which we expect to be resolved
around July 15, 2007 under the terms of the Bill Blass Purchase Agreement,
and
775,740 shares held in escrow until February 16, 2008 (or such later date if
there are unresolved claims) to satisfy indemnification obligations, all of
which shares are registered under this prospectus. As part of the acquisition,
Haresh T. Tharani, Mahesh T. Tharani and Mr. Groveman agreed to the following
restrictions on the timing of selling the shares we issued to them in the
acquisition, even though the shares are registered and eligible for resale
under
this prospectus, as follows:
|
Selling
Stockholder
|
Total
Shares Registered by this Prospectus Due to the Bill Blass Acquisition
+
|
Shares
Eligible for Resale as of
August
15, 2007
|
Total
Shares Eligible for Resale as of
May
16, 2008
|
Total
Shares Eligible for Resale as of
August
16, 2008
|
Total
Shares Eligible for Resale as of
November
16, 2008
|
|
Haresh
T. Tharani
|
730,606
|
182,652
|
365,303
|
547,955
|
730,606
|
|
Mahesh
T. Tharani
|
730,606
|
182,652
|
365,303
|
547,955
|
730,606
|
|
Michael
Groveman
|
730,606
|
182,652
|
365,303
|
547,955
|
730,606
|
|
Designer
Equity Holding Company, LLC
|
400,000
|
*
|
*
|
*
|
*
|
| + |
This
prospectus registers an additional 2,300,000 shares of our common
stock
that we may become obligated to issue to the former Bill Blass
stockholders as earn-out consideration, although the exact number
of
shares issuable will not be determined until the earn-out becomes
payable
in March 2008. The earn-out shares would be immediately eligible
for
resale and not subject to resale restrictions. This table does not
include
the earn-out shares that may be issued in the
earn-out.
|
| * |
The
warrant was issued by the Company to DEHC as consideration for entering
into a licensing agreement with a Company subsidiary, Bill Blass
International LLC. The term of the warrant is 10 years and the warrant
will vest in one-third installments to the extent that the royalty
income
of Bill Blass International LLC equals or exceeds the target royalties
set
forth in the warrant. The shares issuable upon exercise of the warrant,
once vested and exercisable, are not subject to resale
restrictions.
|
MaggieMoo’s
Acquisition
Pursuant
to the MaggieMoo’s Merger Agreement, former securityholders of MaggieMoo’s
International, LLC, who were determined to be accredited investors within the
meaning of Regulation D of the Securities Act of 1933, as amended, were issued
a
total of 234,242 shares of our common stock at the closing of the transaction.
These former securityholders also have the right to receive up to an additional
281,110 shares of our common stock which have been held back until March 1,
2009
to satisfy adjustments, fees, and indemnification obligations, all of which
shares are registered under this prospectus. As part of the acquisition, the
former securityholders of MaggieMoo’s International, LLC agreed to the following
restrictions on the timing of selling the shares we issued to them in the
acquisition, even though the shares are registered and eligible for resale
under
this prospectus, as follows:
|
Selling
Stockholder
|
Total
Shares Registered by this Prospectus Due to the MaggieMoo’s Acquisition
*
|
Shares
Eligible for
Resale
as of
August
28, 2007
|
Total
Shares Eligible for Resale as of
May
29, 2008
|
Total
Shares Eligible for Resale as of
August
29, 2008
|
Total
Shares Eligible for Resale as of
November
29, 2008
|
|
Joseph
Anderson
|
813
|
203
|
407
|
610
|
813
|
|
Terry
Armacost
|
4,790
|
1,198
|
2,395
|
3,593
|
4,790
|
|
Debra
Benedek
|
4,790
|
1,198
|
2,395
|
3,593
|
4,790
|
|
Ed
Blechschmidt
|
478
|
120
|
239
|
359
|
478
|
|
Selling
Stockholder
|
Total
Shares Registered by this Prospectus Due to the MaggieMoo’s Acquisition
*
|
Shares
Eligible for
Resale
as of
August
28, 2007
|
Total
Shares Eligible for Resale as of
May
29, 2008
|
Total
Shares Eligible for Resale as of
August
29, 2008
|
Total
Shares Eligible for Resale as of
November
29, 2008
|
|
James
Blue, Sr.
|
571
|
143
|
286
|
428
|
571
|
|
Nicholas
Bocella
|
8,427
|
2,107
|
4,214
|
6,320
|
8,427
|
|
Kelly
Finney
|
2,799
|
700
|
1,400
|
2,099
|
2,799
|
|
Andrew
Friedman
|
5,859
|
1,465
|
2,930
|
4,394
|
5,859
|
|
Stan
Friedman
|
4,790
|
1,198
|
2,395
|
3,593
|
4,790
|
|
GW
Investments
|
5,323
|
1,331
|
2,662
|
3,992
|
5,323
|
|
Jonathan
Jameson
|
44,632
|
11,158
|
22,316
|
33,474
|
44,632
|
|
Bernard
Katz
|
139
|
35
|
70
|
104
|
139
|
|
Robert
Kenzer
|
346
|
87
|
173
|
260
|
346
|
|
Michael
Kickham
|
2,177
|
544
|
1,089
|
1,633
|
2,177
|
|
Kathy
Little
|
718
|
180
|
359
|
539
|
718
|
|
Richard
Loynd
|
17,231
|
4,308
|
8,616
|
12,923
|
17,231
|
|
Christopher
Maguire
|
1,138
|
285
|
569
|
854
|
1,138
|
|
James
Maguire, Jr.
|
1,439
|
360
|
720
|
1,079
|
1,439
|
|
James
Maguire, Sr.
|
23,078
|
5,770
|
11,539
|
17,309
|
23,078
|
|
Patricia
Maguire
|
1,138
|
285
|
569
|
854
|
1,138
|
|
Carol
McCarthy
|
1,060
|
265
|
530
|
795
|
1,060
|
|
Barry
Mills
|
2,894
|
724
|
1,447
|
2,171
|
2,894
|
|
Stuart
Olsten
|
339,340
|
84,835
|
169,670
|
254,505
|
339,340
|
|
Godfrey
Padberg
|
9,625
|
2,406
|
4,813
|
7,219
|
9,625
|
|
Ann
Peters
|
508
|
127
|
254
|
381
|
508
|
|
Ira
Quint Revocable Trust
|
7,521
|
1,880
|
3,761
|
5,641
|
7,521
|
|
Ridgewood
Parters
|
4,183
|
1,046
|
2,092
|
3,137
|
4,183
|
|
Lawrence
Salpeter
|
276
|
69
|
138
|
207
|
276
|
|
Michael
Schechter
|
1,285
|
321
|
643
|
964
|
1,285
|
|
Eric
Segal
|
69
|
17
|
35
|
52
|
69
|
|
Laurie
Shahon
|
2,706
|
677
|
1,353
|
2,030
|
2,706
|
|
Richard
Smith
|
1,653
|
413
|
827
|
12,340
|
1,653
|
|
Thomas
Stafford
|
5,391
|
1,348
|
2,696
|
4,043
|
5,391
|
|
Paul
Stratmeyer
|
1,437
|
359
|
719
|
1,078
|
1,437
|
|
Melissa
Sullivan
|
1,138
|
285
|
569
|
854
|
1,138
|
|
TSI
Holding Company
|
3,201
|
800
|
1,601
|
2,401
|
3,201
|
|
Michael
Weiss
|
1,362
|
341
|
681
|
1,022
|
1,362
|
|
Susan
Wilkes
|
718
|
180
|
359
|
539
|
718
|
|
Leonard
Wolf
|
313
|
78
|
157
|
235
|
313
|
| * |
This
prospectus registers an additional 135,000 shares of our common stock
that
we may become obligated to issue to the former MaggieMoo’s securityholders
as earn-out consideration, although the exact number of shares issuable
will not be determined until the earn-out becomes payable in March
2008.
Upon issuance, the earn-out shares will subject to resale restrictions.
This table does not include the earn-out shares that may be issued
in the
earn-out.
|
We
will
not receive any proceeds from the sale of the common stock by the selling
stockholders pursuant to this prospectus. However, we will pay the expenses
of
registration of all of the shares that are offered pursuant to this prospectus,
including legal and accounting fees. We will receive the exercise price of
warrants to purchase common stock from certain of the selling stockholders
upon
the exercise of their warrants. If all of such warrants are exercised, we will
receive net proceeds of approximately $7.4 million. We expect to use the
proceeds received from the exercise of the warrants, if any, for general
corporate purposes. General corporate purposes may include capital expenditures,
the repayment of debt, investments in our subsidiaries, working capital,
repurchases of stock, or the financing of possible acquisitions or business
opportunities.
We
are
registering 7,663,191 shares of our common stock for possible sale by the
selling stockholders. Unless the context otherwise requires, as used in this
prospectus, "selling stockholders" includes the selling stockholders named
in
the table above and donees, pledgees, transferees or other
successors-in-interest selling shares
received
from the selling stockholders as a gift, pledge, partnership distribution or
other transfer after the date of this prospectus. Upon being notified by a
selling stockholder that a donee, pledge, transferee or other
successor-in-interest intends to sell more than 500 shares, we will, to the
extent required, promptly file a supplement to this prospectus to name
specifically such person as a selling stockholder.
The
selling stockholders may offer and sell all or a portion of the shares covered
by this prospectus from time to time, in one or more or any combination of
the
following transactions:
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·
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on
the Nasdaq Global Market, in the over-the-counter market or on any
other
national securities exchange on which our shares are listed or
traded;
|
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·
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in
privately negotiated transactions;
|
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·
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in
underwritten transactions;
|
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·
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in
a block trade in which a broker-dealer will attempt to sell the offered
shares as agent but may position and resell a portion of the block
as
principal to facilitate the
transaction;
|
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·
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through
purchases by a broker-dealer as principal and resale by the broker-dealer
for its account pursuant to this
prospectus;
|
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·
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in
ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
|
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·
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through
the writing of options (including put or call options), whether the
options are listed on an options exchange or
otherwise.
|
The
selling stockholders may sell the shares at prices then prevailing or related
to
the then current market price or at negotiated prices. The offering price of
the
shares from time to time will be determined by the selling stockholders and,
at
the time of the determination, may be higher or lower than the market price
of
our common stock on the Nasdaq Global Market or any other exchange or
market.
The
shares may be sold directly or through broker-dealers acting as principal or
agent, or pursuant to a distribution by one or more underwriters on a firm
commitment or best-efforts basis. The selling stockholders may also enter into
hedging transactions with broker-dealers. In connection with such transactions,
broker-dealers of other financial institutions may engage in short sales of
our
common stock in the course of hedging the positions they assume with the selling
stockholders. The selling stockholders may also enter into options or other
transactions with broker-dealers or other financial institutions which require
the delivery to such broker-dealer or other financial institution of shares
offered by this prospectus, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction). In connection with an underwritten offering,
underwriters or agents may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders or from purchasers
of
the offered shares for whom they may act as agents. In addition, underwriters
may sell the shares to or through dealers, and those dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents. In connection with any particular offering pursuant to this shelf
registration statement, an underwriter may engage in stabilizing transactions,
short sales, syndicate covering transactions and penalty bids. The selling
stockholders and any underwriters, dealers or agents participating in a
distribution of the shares may be deemed to be "underwriters" within the meaning
of the Securities Act, and any profit on the sale of the shares by the selling
stockholders and any commissions received by broker-dealers may be deemed to
be
underwriting commissions under the Securities Act. Agents, underwriters, dealers
or their affiliates, may be customers of, engage in transactions with or perform
services for us, in the ordinary course of business.
We
and
the selling stockholders may agree to indemnify an underwriter, broker-dealer
or
agent against certain liabilities related to the selling of the common stock,
including liabilities arising under the Securities Act. Under the registration
rights agreements, we have agreed to indemnify the selling stockholders against
certain liabilities related to the sale of the common stock, including
liabilities arising under the Securities Act. Under the registration rights
agreements, we have also agreed to pay the costs, expenses and fees of
registering the shares of
common
stock; however, the selling stockholders will pay any underwriting discounts
or
commissions relating to the sale of the shares of common stock in any
underwritten offering.
We
are
not aware that any selling stockholders have entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding
the sale of its shares. Upon our notification by the selling stockholders that
any material arrangement has been entered into with an underwriter or
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution, secondary distribution or a purchase by an underwriter
or
broker-dealer, we will file a supplement to this prospectus, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing certain material
information, including:
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·
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the
name of the selling stockholders;
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·
|
the
number of shares being offered;
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·
|
the
terms of the offering;
|
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·
|
the
names of the participating underwriters, broker-dealers or
agents;
|
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·
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any
discounts, commissions or other compensation paid to underwriters
or
broker-dealers and any discounts, commissions or concessions allowed
or
reallowed or paid by any underwriters to
dealers;
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·
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the
public offering price; and
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·
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other
material terms of the offering.
|
The
selling stockholders are subject to the applicable provisions of the Exchange
Act and the rules and regulations under the Exchange Act, including Regulation
M. This regulation may limit the timing of purchases and sales of any of the
shares of common stock offered in this prospectus by the selling stockholders.
The anti-manipulation rules under the Exchange Act may apply to sales of shares
in the market and to the activities of the selling stockholders and their
affiliates. Furthermore, Regulation M may restrict the ability of any person
engaged in the distribution of the shares to engage in market-making activities
for the particular securities being distributed for a period of up to five
business days before the distribution. The restrictions may affect the
marketability of the shares and the ability of any person or entity to engage
in
market-making activities for the shares.
To
the
extent required, this prospectus may be amended and/or supplemented from time
to
time to describe a specific plan of distribution. Instead of selling the shares
of common stock under this prospectus, the selling stockholders may sell the
shares of common stock in compliance with the provisions of Rule 144 under
the
Securities Act, if available, or pursuant to other available exemptions from
the
registration requirements of the Securities Act.
The
validity of the shares of common stock offered pursuant to this prospectus
will
be passed upon by Kirkland & Ellis LLP. One of the partners of Kirkland
& Ellis LLP is a director of NexCen.
The
consolidated financial statements of NexCen Brands, Inc. and subsidiaries as
of
December 31, 2006 and 2005, and for each of the years in the three-year period
ended December 31, 2006, and management’s assessment of the effectiveness of
internal control over financial reporting as of December 31, 2006 have been
incorporated by reference herein in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and
auditing.
Filings.
We
are
currently subject to the information requirements of the Exchange Act and in
accordance therewith file periodic reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
(at prescribed rates) any such reports, proxy statements and other information
at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549. For further information concerning the SEC’s Public Reference Room, you
may call the SEC at 1-800-SEC-0330. Some of this information may also be
accessed on the World Wide Web through the SEC’s Internet address at
www.sec.gov, or on our Internet address at www.nexcenbrands.com.
Registration
Statement. We
have
filed with the SEC a registration statement on Form S-3 with respect to the
shares of common stock offered hereby. This prospectus does not contain all
the
information set forth in the registration statement, parts of which are omitted
in accordance with the rules and regulations of the SEC. For further information
with respect to us and the common stock offered hereby, reference is made to
the
registration statement.
Incorporation
by Reference. The
SEC
allows us to “incorporate by reference” information into this prospectus, which
means that we can disclose important information about us by referring you
to
another document filed separately with the SEC. The information incorporated
by
reference is considered to be a part of this prospectus. This prospectus
incorporates by reference the documents and reports listed below (other than
portions of these documents that are either (1) described in paragraphs (i),
(k)
and (l) of Item 402 of Regulation S-K promulgated by the SEC or (2) furnished
under Item 2.02 or Item 7.01 of a Current Report on Form 8-K):
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·
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our
Annual Report on Form 10-K/A for the fiscal year ended December 31,
2006;
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2007;
|
|
·
|
our
Current Reports on Form 8-K filed on May 3, 2007, May 8, 2007, May
10,
2007, and May 11, 2007;
|
|
·
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the
description of our common stock, par value $0.01 per share, that
is
contained in our registration statement on Form 8-A filed on October
19,
1999, including exhibits, as amended, and as may be further amended
from
time to time; and
|
|
·
|
all
our filings pursuant to the Exchange Act after the date of filing
of the
initial registration statement and prior to the effectiveness of
the
registration statement.
|
The
description of our common stock to which we refer was filed in connection with
our initial public offering when we were known as Aether Systems, Inc.
Subsequently, in July 2005, our stockholders approved a holding company
reorganization as the result of which our name changed to Aether Holdings,
Inc.
In connection with that reorganization, our stockholders also approved an
amendment to our certificate of incorporation that imposed restrictions on
certain transfers of our common stock the purpose of which was to reduce the
risk that we would experience an ownership change for tax purposes.
Specifically, the transfer restrictions restrict any person from buying or
selling our stock (or any interest in our stock) if the transfer would result
in
a stockholder (or several stockholders, in the aggregate, who hold their stock
as a “group” under the federal securities laws) owning 5% or more of our stock.
A description of these restrictions is set forth in our Form S-4 (No.
333-124633) filed with the SEC on May 4, 2005, as amended, which is incorporated
herein by reference. Subsequently, at our annual meeting of stockholders held
on
October 31, 2006, we changed our name to NexCen Brands, Inc. as part of the
change in our long-term strategy that focuses on acquiring or licensing, for
sale, licensing or sublicensing (or other commercial exploitation) intellectual
property.
We
also
incorporate by reference the information contained in all other documents we
file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act (other than portions of these documents that are either (1) described in
paragraphs (i), (k) and (l) of Item 402 of Regulation S-K promulgated by the
SEC
or (2) furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K,
unless otherwise indicated therein) after the date of this prospectus and prior
to the termination of this offering. The information contained in any such
document will be considered part of this prospectus from the date the document
is filed with the SEC.
Any
statement contained in a document incorporated or deemed to be incorporated
by
reference in this prospectus will be deemed to be modified or superseded to
the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this
prospectus
modifies
or supersedes that statement. Any statement so modified or superseded will
not
be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We
undertake to provide without charge to any person, including any beneficial
owner, to whom a copy of this prospectus is delivered, upon oral or written
request of such person, a copy of any or all of the documents that have been
incorporated by reference in this prospectus, other than exhibits to such other
documents (unless such exhibits are specifically incorporated by reference
therein). We will furnish any exhibit upon the payment of a specified reasonable
fee, which fee will be limited to our reasonable expenses in furnishing such
exhibit. Requests for such copies should be directed to David B. Meister, NexCen
Brands, Inc., 1330 Avenue of the Americas, 34th
Floor,
New York, NY 10019, (212) 277-1100.
-15-