As
filed with the Securities and Exchange Commission on April 21,
2008
No.
333-149026
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 1
to
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
NEXCEN BRANDS, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
(State
or other jurisdiction of incorporation or organization)
|
20-2783217
(I.R.S.
Employer Identification Number)
|
|
1330
Avenue of the Americas, 34th
Floor
New
York, NY 10019
(212)
277-1100
(Address,
including zip code, and telephone number, including area code, of
registrant's principal executive
offices)
|
|
Kenneth J. Hall
Executive Vice
President, Chief Financial Officer and Treasurer
1330
Avenue of the Americas, 34th
Floor
New
York, NY 10019
(212)
277-1100
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
Copies
of all communications, including communications sent to agent for service,
should be sent to:
|
Mark
D. Director, Esq.
Andrew
M. Herman, Esq.
Kirkland
& Ellis LLP
655
15th
Street, N.W.
Washington,
DC 20005
(202)
879-5000
|
Approximate
date of commencement of proposed sale to the public: From time to time on or
after the effective date of this Registration Statement.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 431(b) under the Securities Act, check
the following box. ¨
The
registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the registrant shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this prospectus is not complete and may be changed. We may
not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. The prospectus is not an
offer to sell these securities nor a solicitation of an offer to buy these
securities in any jurisdiction where the offer and sale is not
permitted.
SUBJECT
TO COMPLETION, DATED APRIL 21, 2008
 |
|
3,697,671
Shares
Common
Stock
|
This
prospectus covers the resale of up to 3,697,671 shares of our common stock,
par
value
$0.01 per share. The shares covered by this prospectus include 3,497,671
currently outstanding shares owned by some of our stockholders and 200,000
shares issuable upon the exercise of an outstanding warrant held by a
stockholder. These shares were acquired by our stockholders in
connection with our acquisitions of UCC Capital Corp., UCC Consulting Corp.
and
UCC Servicing, LLC, and in our acquisition of the assets of Pretzel Time
Franchising, LLC, and Pretzelmaker Franchising, LLC, and in connection with
the
extension of our existing credit facility.
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 warrant if and when the warrant is exercised
by the selling stockholder. The warrant has not been exercised as of the date
of
this prospectus.
Our
common stock is traded on the Nasdaq Global Market under the symbol NEXC. On
April 18, 2008, the last reported sale price of our common stock on the Nasdaq
Global Market was $2.70 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 6.
Investing
in our common stock involves risks. See "Risk Factors" on page
2.
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 April , 2008
TABLE
OF CONTENTS
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Page
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Page
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Our
Company
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1
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Plan
of Distribution
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6
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Risk
Factors
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2
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Legal
Matters
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8
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Forward-Looking
Statements
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3
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Experts
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8
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Selling
Stockholders
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4
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Where
You Can Find More Information
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8
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Use
of Proceeds
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6
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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
3,697,671 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.
OUR
COMPANY
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
is
a vertically integrated global brand management and franchising company.
Our
business is focused on managing, developing and acquiring intellectual property,
which we refer to as IP, and IP-centric businesses operating in three segments:
Consumer Branded Products, Retail Franchising and Quick Service Restaurant
Franchising (which we refer to as “QSR” Franchising). We own, license, franchise
and market a growing portfolio of brands including Bill Blass, Waverly, The
Athlete's Foot, Shoebox New York, Great American Cookies, MaggieMoo's, Marble
Slab, Pretzel Time, and Pretzelmaker. We license and franchise our brands
to a
network of leading retailers, manufacturers and franchisees that includes
every
major segment of retail distribution from the luxury market to the mass market
in the United States and in over 50 countries around the world. Our franchise
network consists of approximately 1,900 retail stores.
We
commenced our current 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
(“The Athlete’s Foot” or “TAF”). The Athlete’s Foot is one of the largest
athletic footwear and apparel franchisors with approximately 640 franchised
units 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 (“Bill Blass”). The
Bill Blass label represents timeless, modern American style.
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, having
a
combined total of approximately 580 franchised units. With these acquisitions
NexCen entered the QSR franchising business.
In
May
2007, we expanded our consumer branded products business by acquiring all
of the
intellectual property and license contracts related to the Waverly brand.
Waverly is a premier lifestyle brand with an array of licensed home furnishings
products, including fabrics, wallpapers, paint, bedding, window treatments,
and
decorative accessories.
In
August
2007, we acquired substantially all of the assets of Pretzel Time Franchising,
LLC (“Pretzel Time”) and Pretzelmaker Franchising, LLC (“Pretzelmaker”), adding
two hand-rolled pretzel chains with approximately 380 franchised units worldwide
to our QSR franchising business.
In
January 2008, we acquired the trademarks and other intellectual property
of The
Shoe Box, Inc. (“Shoebox”) in partnership with the Camuto Group, a premier
women's fashion footwear company. Shoebox is a multi-brand luxury shoe retailer
based in New York with nine locations. The partnership has begun franchising
the
Shoebox's luxury footwear concept domestically and internationally under
the
Shoebox New York brand.
In
January 2008, we also acquired substantially all of the assets of Great American
Cookie Company Franchising, LLC and Great American Manufacturing, LLC
(collectively, “Great American Cookies”). This transaction added another premium
treat brand and approximately 300 franchised units to our QSR
portfolio.
More
detailed information about the Bill Blass, Waverly, The Athlete's Foot, Shoebox,
Great American Cookies, MaggieMoo's, Marble Slab, Pretzel Time, and Pretzelmaker
acquisitions can be found in our Annual Report on Form 10-K for the year
ended
December 31, 2007 and in our Current Report on Form 8-K filed on January
29,
2008, which are 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.
1
RISK
FACTORS
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
Form 10-K
for
the year ended December 31, 2007,
which is 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:
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·
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variations
in our operating performance and the performance of our
competitors;
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·
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actual
or anticipated fluctuations in our quarterly or annual operating
results;
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·
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publication
of research reports by securities analysts about us or our competitors
or
our industry;
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·
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our
failure or the failure of our competitors to meet analysts’ projections or
guidance that we or our competitors may give to the
market;
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·
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additions
and departures of key personnel;
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·
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strategic
decisions by us or our competitors, such as acquisitions, strategic
investments or changes in business
strategy;
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·
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speculation
in the press or investment
community;
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·
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changes
in accounting principles;
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·
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terrorist
acts, acts of war or periods of widespread civil
unrest;
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·
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changes
in general market and economic conditions;
and
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·
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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.
2
FORWARD-LOOKING
STATEMENTS
This
prospectus and the information incorporated by reference herein contains
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:
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·
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we
may not be successful in implementing our new IP
strategy;
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|
·
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we
may not be able to acquire IP or IP-centric companies or finance
or
exploit them on terms that are acceptable to
us;
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|
·
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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;
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|
·
|
we
may not be successful in operating or expanding our acquired businesses
or
integrating them into an overall IP business
strategy;
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|
·
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we
may not be able to borrow desired amounts at desired times in accordance
with the terms of our master loan
agreement;
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|
·
|
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;
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|
·
|
risks
associated with the ability of licensees and franchisees to successfully
market and sell branded products,
competition;
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|
·
|
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;
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|
·
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general
regional and national economic
conditions;
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|
·
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loss
or departure of one or more members of our senior management;
and
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|
·
|
the
market price of our stock may be volatile, which could make the use
of our
stock as consideration for acquisitions less attractive to potential
sellers.
|
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.
3
SELLING
STOCKHOLDERS
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 6. 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 April 21,
2008,
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
March 31, 2008.
|
Shares
Beneficially Owned Prior to the Offering (1)
|
Shares
Offered Hereby
|
Shares
Beneficially Owned After the Offering (2)
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||||||||
|
Name
|
Number
|
Percentage
|
Number
|
Number
|
Percentage
|
|||||
|
Robert
W. D’Loren (3) (7)
|
6,392,850
|
11.1%
|
425,692
|
4,641,798
|
8.1%
|
|||||
|
D’Loren
Realty LLC (7)
|
1,775,193
|
3.1%
|
1,325,360
|
449,833
|
*
|
|||||
|
Robert
D’Loren Family Trust (7)
|
537,308
|
*
|
268,654
|
268,654
|
*
|
|||||
|
Barry
J. Levien (7)
|
399,490
|
*
|
226,545
|
172,945
|
*
|
|||||
|
James
F. Haran (7)
|
507,499
|
*
|
253,749
|
253,750
|
*
|
|||||
|
PTF,
LLC (4) (8)
|
606,584
|
1.1%
|
606,584
|
0
|
*
|
|||||
|
PMF,
LLC (5) (8)
|
391,087
|
*
|
391,087
|
0
|
*
|
|||||
|
BTMU
Capital Corporation (6)
|
200,000
|
*
|
200,000
|
0
|
*
|
|||||
*
Less
than one percent.
| (1) |
Includes
3,497,671 shares of common stock issued and outstanding as of the
date of
this prospectus and 200,000 shares of common stock issuable upon
exercise
of an outstanding warrant. The warrant held by BTMU Capital Corporation
is
currently exercisable at any time prior to January 29,
2018.
|
| (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
(i) 1,041,384 shares owned directly by Mr. D’Loren, (ii) 1,775,193 shares
owned by D’Loren Realty LLC, which is solely owned and managed by Mr.
D’Loren, (iii) 875,526 shares owned by D’Loren 2008 Retained Annuity
Trust, (iv) immediately exercisable warrants to purchase 41,666 shares,
(v) immediately exercisable options to purchase 745,658 shares, and
(vi)
1,913,423 shares over which Mr. D’Loren exercises voting control pursuant
to the terms of two voting agreements entered into in connection
with
NexCen’s acquisition of The Athlete’s Foot in November 2006. The
shares held by Mr. D’Loren exclude 537,308
shares
held by the Robert D’Loren Family Trust Dated March 29, 2002 (the “Family
Trust”), the beneficiaries of which are two minor children of Mr. D’Loren.
The Family Trust is irrevocable, the trustee is not a member of Mr.
D’Loren’s immediate family, and the trustee has independent authority to
vote and dispose of the shares held by the Family Trust. As a result,
Mr.
D’Loren disclaims any beneficial ownership of the shares held by the
Family Trust. Beneficial ownership after the offering reflects the
sale of
1,325,360
shares
by D’Loren Realty LLC.
|
4
| (4) |
Includes
241,450 shares held in escrow until May 8, 2008 and 136,054 shares
held in
escrow until November 8, 2008 to secure indemnification obligations
under
the Asset Purchase Agreement, dated August 7, 2007, by and among
NexCen
Brands, Inc., NexCen Asset Acquisition, LLC, Pretzel Time Franchising,
LLC, Pretzelmaker Franchising, LLC, and Mrs. Fields Famous Brands,
LLC
(“Pretzel Purchase Agreement”). The number of shares held in escrow until
May 8, 2008 has been reduced by 1,972 shares which will be returned
to us
in satisfaction of a purchase price
adjustment.
|
| (5) |
Includes
155,671 shares held in escrow until May 8, 2008 to secure indemnification
obligations under the Pretzel Purchase Agreement. The number of shares
held in escrow until May 8, 2008 has been reduced by 1,272 shares
which
will be returned to us in satisfaction of a purchase price
adjustment.
|
| (6) |
Consists
of shares issuable upon exercise of a currently exercisable warrant
to
purchase shares of common stock. In
his capacity as the Chief Financial Officer of BTMU Capital Corporation,
Paul F. Nolan exercises the sole voting and dispositive powers with
respect to the shares to be offered for resale by BTMU Capital
Corporation.
|
| (7) |
The
shares being registered for resale were issued to the former UCC
securityholders on September 5, 2007 as additional merger consideration
upon satisfaction of an earn-out associated with the acquisition
of UCC in
June 2006. These shares are being registered pursuant to a registration
rights agreement entered into in connection with the acquisition
of UCC.
|
| (8) |
On
or about August 17, 2007, Pretzel Time Franchising, LLC and Pretzelmaker
Franchising, LLC changed their names to PTF, LLC and PMF, LLC,
respectively. In
his capacity as the Chairman of the Board of Directors of Mrs.
Fields’
Companies, Inc., the indirect parent of PTF, LLC and PMF, LLC,
Herbert S.
Winokur, Jr. exercises the sole voting and dispositive powers with
respect
to the shares to be offered for resale by PTF, LLC and PMF,
LLC.
|
Summary
of Resale Restrictions
The
shares to be offered hereby are owned by or issuable to the selling stockholders
in connection with the UCC, Preztel Time and Pretzelmaker acquisitions. In
the
UCC, Preztel Time and Pretzelmaker acquisitions, we 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.
Additionally, the selling stockholders who received their shares in the Pretzel
Time and Pretzelmaker acquisition agreed to certain resale restrictions which
will continue to restrict the resale of the shares registered by this
prospectus.
The
warrant held by BTMU was issued in connection with the extension of our existing
credit facility on January 29, 2008. Under the terms of the warrant, we agreed
to register the shares issuable upon exercise of the warrant.
Preztel
Time and Pretzelmaker Acquisition
Pursuant
to the Pretzel Purchase Agreement, at the closing, we issued 1,000,915 shares
of
our common stock to PTF, LLC and PMF, LLC. The shares issued at the closing
include 533,175 shares held in escrow to secure indemnification obligations
under the Pretzel Purchase Agreement of which 397,121 shares will be released
on
May 8, 2008 and 136,054 shares will be released on November 8, 2008 if no claims
have been made prior to such dates. The number of shares registered under this
prospectus excludes 3,244 shares issued to PTF, LLC and PMF, LLC that will
be
returned to us in satisfaction of a purchase price adjustment. As part of the
acquisition, PTF, LLC and PMF, 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:
5
|
Selling
Stockholder
|
Total
Shares Registered by this Prospectus Due to the Pretzel Time and
Pretzelmaker Acquisition
|
Shares
Eligible for Resale as of August 7, 2008
|
Total
Shares Eligible for Resale as of November 8, 2008
|
Total
Shares Eligible for Resale as of February 8, 2009
|
Total
Shares Eligible for Resale as of
May
8, 2009
|
|
PTF,
LLC
|
606,584
|
151,646
|
303,292
|
454,938
|
606,584
|
|
PMF,
LLC
|
391,087
|
97,772
|
195,544
|
293,315
|
391,087
|
USE
OF PROCEEDS
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
the
warrant from the selling stockholder upon the exercise of the warrant. If the
warrant is fully exercised, we will receive net proceeds of approximately
$2,000. We expect to use the proceeds received from the exercise of the warrant
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.
PLAN
OF DISTRIBUTION
We
are
registering 3,697,671 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:
|
·
|
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;
|
|
·
|
in
privately negotiated transactions;
|
|
·
|
in
underwritten transactions;
|
|
·
|
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;
|
|
·
|
through
purchases by a broker-dealer as principal and resale by the broker-dealer
for its account pursuant to this
prospectus;
|
|
·
|
in
ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
|
|
·
|
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.
6
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:
|
·
|
the
name of the selling stockholders;
|
|
·
|
the
number of shares being offered;
|
|
·
|
the
terms of the offering;
|
|
·
|
the
names of the participating underwriters, broker-dealers or
agents;
|
|
·
|
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;
|
|
·
|
the
public offering price; and
|
|
·
|
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.
7
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.
LEGAL
MATTERS
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.
EXPERTS
The
consolidated financial statements of NexCen Brands, Inc. and subsidiaries
as of
December 31, 2007 and 2006, and for each of the years in the three-year period
ended December 31, 2007, 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.
The
audit
report on the effectiveness of internal control over financial reporting
as of
December 31, 2007, expresses an opinion that NexCen Brands, Inc. and
subsidiaries did not maintain effective internal control over financial
reporting as of December 31, 2007, because of the effect of material weaknesses
on the achievement of the objectives of the control criteria and contains
an
explanatory paragraph that states the Company did not maintain a sufficient
number of accounting and financial reporting personnel; the Company’s personnel
did not have an appropriate level of technical expertise in U.S. generally
accepted accounting principles (US GAAP); the design and implementation of
the
Company’s controls over the completeness and accuracy of accrued liabilities
were not effective as of December 31, 2007.
The
audit
report on the effectiveness of internal control over financial reporting
as of
December 31, 2007, also contains an explanatory paragraph that states the
Company acquired Bill Blass Holding, Co., Inc., MaggieMoo’s International, LLC,
Marble Slab Creamery, Inc., the Waverly, Gramercy, and Village Brands, Pretzel
Time Franchising, LLC and Pretzelmaker Franchising, LLC (“acquired entities”)
during 2007, and management excluded from its assessment of the effectiveness
of
the Company’s internal control over financial reporting as of December 31, 2007,
the acquired entities’ internal control over financial reporting associated with
total assets of $203.2 million (of which $193.1 million represents goodwill
and
intangible assets included within the scope of the assessment) and total
revenues of $25.6 million included in the consolidated financial statements
of
NexCen Brands, Inc. and subsidiaries as of and for the year ended December
31,
2007.
The
Statement of Revenues and Direct Expenses of Waverly, Gramercy and Village
Brands for the year ended December 31, 2006 has been incorporated by reference
herein in reliance upon the report of KPMG LLP independent public accounting
firm, incorporated by reference herein, and upon the authority of said firm
as
experts in accounting and auditing.
The
Statement of Revenues and Direct Expenses of Pretzel Time and Pretzelmaker
for
the year ended December 30, 2006 has been incorporated by reference herein
in
reliance upon the report of KPMG LLP independent public accounting firm,
incorporated by reference herein, and upon the authority of said firm
as experts
in accounting and auditing.
The
Statements of Assets Acquired and Liabilities Assumed of the Great American
Cookie Brand as of December 29, 2007 and December 30, 2006, and the
Statements of Revenues and Direct Expenses for the fiscal years in the
three-year period ended December 29, 2007 have been incorporated by reference
herein in reliance upon the reports of KPMG LLP independent public accounting
firm, incorporated by reference herein, and upon the authority of said
firm as
experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
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):
|
·
|
our
Annual Report on Form 10-K and Form 10-K/A for the fiscal year ended
December 31, 2007;
|
|
·
|
our
Current Reports on Form 8-K filed on January 29, 2008, March 7, 2008,
and March 27, 2008;
|
| · |
our
Current Reports on Form 8-K/A filed on July 18, 2007 (Waverly),
October
23, 2007 (Pretzel Time and Pretzelmaker) and April 15, 2008 (Great
American Cookies);
|
8
|
·
|
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 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 Kenneth J. Hall, NexCen
Brands, Inc., 1330 Avenue of the Americas, 34th
Floor,
New York, NY 10019, (212) 277-1100.
9
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following is a statement of estimated expenses, to be paid solely by the NexCen
Brands, Inc. (the "Company"), of the issuance and distribution of the securities
being registered hereby:
|
Securities
and Exchange Commission registration fee
|
$
|
600
|
||
|
Printing
expenses (1)
|
10,000
|
|||
|
Accounting
fees and expenses (1)
|
80,000
|
|||
|
Legal
fees and expenses (1)
|
50,000
|
|||
|
Miscellaneous
expenses (1)
|
4,000
|
|||
|
Total
|
$
|
144,600
|
| (1) |
Does
not include any fees or expenses in connection with any subsequent
underwritten offering and any prospectus supplements prepared in
connection therewith.
|
Item
15. Indemnification of Directors and Officers.
Delaware
General Corporation Law
Section
145 of the Delaware General Corporation Law (the "DGCL") provides that a
corporation may indemnify any person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than
an action by or in the right of the corporation) by reason of the fact that
the
person is or was a director, officer, employee or agent of the corporation,
or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise, against expenses (including attorneys' fees), judgments,
fines
and amounts paid in settlement actually and reasonably incurred by the person
in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed
to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that the person's conduct
was
unlawful. Section 145 of the DGCL further provides that a corporation similarly
may indemnify any person who was or is a party or is threatened to be made
a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact
that
the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner that
the person reasonably believed to be in or not opposed to the best interests
of
the corporation and except that no indemnification shall be made in respect
of
any claim, issue or matter as to which such person shall have been adjudged
to
be liable to the corporation unless and only to the extent that the Delaware
Court of Chancery or such other court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but
in view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court
of
Chancery or such other court shall deem proper.
Section
145 of the DGCL also provides that a corporation has the power to purchase
and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability under
this
section.
II-1
Certificate
of Incorporation
Article
X
of the Company's Certificate of Incorporation, as amended, provides that, to
the
fullest extent permitted by the DGCL, as the same exists or may be amended,
a
director of the Company is not liable to the Company or its stockholders for
monetary damages for a breach of fiduciary duty as a director.
By-laws
Article
VII of the By-laws of the Company (the "By-laws") provides, among other things,
that each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he, or a person
of
whom he is the legal representative, is or was a director or officer of the
Company or is or was serving at the request of the Company as a director,
officer, employee, fiduciary, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified
and
held harmless by the Company to the fullest extent which it is empowered to
do
so unless prohibited from doing so by the DGCL against all expense, liability
and loss (including attorneys' fees actually and reasonably incurred by such
person in connection with such proceeding) and such indemnification inures
to
the benefit of the person's heirs, executors and administrators; provided,
however, that, subject to certain exceptions, the Company shall indemnify any
such person seeking indemnification in connection with a proceeding initiated
by
such person only if such proceeding was authorized by the board of directors
of
the Company. The right to indemnification conferred in Article VII is a
contract right and, subject to certain exceptions, includes the right to be
paid
by the Company the expenses incurred in defending any such proceeding in advance
of its final disposition.
Article
VII of the By-laws also provides that the Company may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the Company or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him or her
in
any such capacity, whether or not the Company would have the power to indemnify
such person against such liability under Article VII of the
By-laws.
Insurance
Our
directors and officers are covered under directors' and officers' liability
insurance policies maintained by us.
Item
16. Exhibits.
Reference
is made to the attached Exhibit Index.
Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
|
(1)
|
To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration
statement:
|
| (i) |
To
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933;
|
| (ii) |
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent
a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease
in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in
the effective registration
statement;
|
II-2
| (iii) |
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement;
|
provided,
however,
that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of
the registration statement.
|
(2)
|
That,
for the purpose of determining any liability under the Securities
Act of
1933, each such post-effective amendment shall be deemed to be a
new
registration statement relating to the securities offered therein,
and the
offering of such securities at that time shall be deemed to be the
initial
bona
fide
offering thereof.
|
|
(3)
|
To
remove from registration by means of a post-effective amendment any
of the
securities being registered which remain unsold at the termination
of the
offering.
|
|
(4)
|
That,
for the purpose of determining liability under the Securities Act
of 1933
to any purchaser:
|
| (i) |
If
the registrant is relying on Rule
430B:
|
| (A) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be
deemed to be part of this registration statement as of the date the
filed
prospectus was deemed part of and included in this registration statement;
and
|
| (B) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii)
or (x)
for the purpose of providing the information required by Section
10(a) of
the Securities Act of 1933 shall be deemed to be part of and included
in
the registration statement as of the earlier of the date such form
of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer
and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed
to be the initial bona
fide
offering thereof. Provided,
however,
that no statement made in a registration statement or prospectus
that is
part of the registration statement or made in a document incorporated
or
deemed incorporated by reference into the registration statement
or
prospectus that is part of the registration statement will, as to
a
purchaser with a time of contract of sale prior to such effective
date,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or
made in any such document immediately prior to such effective date;
or
|
| (ii) |
If
the registrant is subject to Rule 430C, each prospectus filed pursuant
to
Rule 424(b) as a part of a registration statement relating to an
offering,
other than registration statements relying on Rule 430B or other
than
prospectuses filed in reliance of Rule 430A, shall be deemed to be
part of
and included in the registration statement as of the date it is first
used
after effectiveness. Provided,
however,
that no statement made in a registration statement or prospectus
that is
part of the registration statement or made in a document incorporated
or
deemed incorporated by reference into the registration statement
or
prospectus that is part of the registration statement will, as to
a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or
made in such document immediately prior to such date of first
use.
|
|
(5)
|
That,
for the purpose of determining liability of the registrant under
the
Securities Act of 1933 to any purchaser in the initial distribution
of
securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to
this
registration statement, regardless of the underwriting method used
to sell
the securities to the purchaser, if the securities are offered or
sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be
considered to offer or sell such securities to such
purchaser:
|
II-3
| (i) |
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
| (ii) |
Any
free writing prospectus relating to the offering prepared by or on
behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
| (iii) |
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant
or its
securities provided by or on behalf of the undersigned registrant;
and
|
| (iv) |
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
| (b) |
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d)
of
the Securities Exchange Act of 1934 (and, where applicable, each
filing of
an employee benefit plan's annual report pursuant to Section 15(d)
of the
Securities Exchange Act of 1934) that is incorporated by reference
in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide
offering thereof.
|
| (c) |
Insofar
as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers and controlling persons
of
the registrant pursuant to the foregoing provisions, or otherwise,
the
registrant has been advised that in the opinion of the Securities
and
Exchange Commission such indemnification is against public policy
as
expressed in the Act and is, therefore, unenforceable. In the event
that a
claim for indemnification against such liabilities (other than the
payment
by the registrant of expenses incurred or paid by a director, officer
or
controlling person of the registrant in the successful defense of
any
action, suit or proceeding) is asserted by such director, officer
or
controlling person in connection with the securities being registered,
the
registrant will, unless in the opinion of its counsel the matter
has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the
final
adjudication of such issue.
|
| (d) |
The
undersigned registrant hereby undertakes
that:
|
|
(1)
|
For
purposes of determining any liability under the Securities Act of
1933,
the information omitted from the form of prospectus filed as part
of this
registration statement in reliance upon Rule 430A and contained in
a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
|
|
(2)
|
For
the purpose of determining any liability under the Securities Act
of 1933,
each post-effective amendment that contains a form of prospectus
shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be
deemed to be the initial bona
fide
offering thereof.
|
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
New
York, State of New York on the 21st of
April,
2008.
|
NEXCEN
BRANDS, INC.
|
||
|
By:
|
/s/
Kenneth J. Hall
|
|
|
Kenneth
J. Hall
|
||
|
Chief
Financial Officer
|
||
****
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
and Power of Attorney have been signed by the following persons in the
capacities and on the dates indicated:
|
Signatures
|
Capacity
|
Date
|
||
|
/s/
Robert W. D’Loren
|
Chief
Executive Officer, President and Director
|
|||
|
Robert
W. D’Loren
|
(Principal
Executive Officer)
|
April
21, 2008
|
||
|
/s/
Kenneth J. Hall
|
Chief
Financial Officer (Principal Financial
|
|||
|
Kenneth
J. Hall
|
and
Accounting Officer)
|
April
21, 2008
|
||
|
*
|
||||
|
David
S. Oros
|
Chairman
of the Board
|
April
21, 2008
|
||
|
*
|
||||
|
Jack
Ro vner
|
Director
|
April
21, 2008
|
||
|
*
|
||||
|
James
T. Brady
|
Director
|
April
21, 2008
|
||
|
*
|
||||
|
George
P. Stamas
|
Director
|
April
21, 2008
|
||
|
*
|
||||
|
Jack
B. Dunn, aIV
|
Director
|
April
21, 2008
|
||
|
*
|
||||
|
Edward
J. Mathias
|
Director
|
April
21, 2008
|
||
|
*
|
||||
|
Paul
Caine
|
Director
|
April
21, 2008
|
||
|
*
|
||||
|
Marvin
Traub
|
Director
|
April
21, 2008
|
||
|
*
/s/ Robert W. D’Loren
|
||||
|
Robert
W. D’Loren
|
||||
| Attorney-in-fact | ||||
| Pursuant to Power of Attorney |
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
1.1
|
Form
of Underwriting Agreement.*
|
|
|
4.1
|
Certificate
of Incorporation of the Company (incorporated by reference to Exhibit
3.1
to the Company's Form 10-Q as filed with the Commission on August
5,
2005).
|
|
|
4.2
|
Certificate
of Amendment of Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Company’s Form 8-K as filed with the
Commission on November 1, 2006).
|
|
|
4.3
|
Amended
and Restated By-laws of the Company (incorporated by reference to
Exhibit
3.1 to the Company's Form 8-K as filed with the Commission on March
7, 2008).
|
|
|
4.4
|
Form
of Common Stock Certificate (incorporated by reference to Exhibit
4.3 to
the Company's Form S-8 (File No. 333-139078) as filed with the Commission
on December 1, 2006).
|
|
|
5.1
|
Opinion
of Kirkland & Ellis LLP. +
|
|
|
23.1
|
Consent
of Kirkland & Ellis LLP (included in Exhibit 5.1).
+
|
|
|
23.2
|
Consent
of KPMG LLP.
|
|
|
23.3
|
Consent
of KPMG LLP.
|
|
|
23.4
|
Consent
of KPMG LLP.
|
|
|
23.5
|
Consent
of KPMG LLP.
|
|
|
24.1
|
Powers
of Attorney. +
|
|
|
*
|
To
be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to the registration statement
or
incorporated by reference to a Current Report on Form 8-K filed in
connection with an underwritten offering of the shares offered
hereunder.
|
|
+
|
Previously filed. |