As filed with the Securities and Exchange
Commission on October 4, 2016
Registration Statement No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________________
FORM S-3
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________________________________
Naked
Brand Group Inc.
(Exact name
of registrant as specified in its charter)
________________________________________
|
Nevada
|
|
99-0369814
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer Identification Number)
|
Naked Brand Group Inc.
10
th
Floor - 95 Madison Avenue
New York, New York 10016
Telephone:
(212) 851-8050
(Address, including zip code, and telephone
number,
including area code, of registrant’s principal executive offices)
________________________________________
Joel Primus
President
Naked Brand Group
Inc.
10
th
Floor - 95 Madison Avenue
New York, New
York 10016
Telephone:
(212) 851-8050
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
________________________________________
Copy of all communications to:
Nanette C. Heide, Esq.
Duane Morris LLP
1540 Broadway
New York, New York 10036-4086
(212) 692-1003
________________________________________
Approximate date of commencement of proposed sale to the
public:
from time to time 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 413(b) under the Securities Act, check the following box.
£
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated
filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
|
£
|
|
Accelerated filer
|
£
|
|
Non-accelerated filer
|
£
|
(Do not check if a smaller reporting company)
|
Smaller reporting company
|
þ
|
CALCULATION
OF REGISTRATION FEE
Title of Each Class of Securities
to be Registered
|
|
Amount to be
Registered
|
|
|
Proposed
Maximum Offering
Price Per Share
|
|
|
Proposed
Maximum
Aggregate
Offering
Price
|
|
|
Amount of
Registration Fee (3)
|
|
|
Common Stock, $0.001 par value per share
|
|
|
(1
|
)
|
|
|
(2
|
)
|
|
|
(2
|
)
|
|
|
(3
|
)
|
|
Preferred Stock, $.001 par value per share
|
|
|
(1
|
)
|
|
|
(2
|
)
|
|
|
(2
|
)
|
|
|
(3
|
)
|
|
Warrants
|
|
|
(1
|
)
|
|
|
(2
|
)
|
|
|
(2
|
)
|
|
|
(3
|
)
|
|
Subscription Rights
|
|
|
(1
|
)
|
|
|
(2
|
)
|
|
|
(2
|
)
|
|
|
(3
|
)
|
|
Stock Purchase Contracts
|
|
|
(1
|
)
|
|
|
(2
|
)
|
|
|
(2
|
)
|
|
|
(3
|
)
|
|
Units
|
|
|
(1
|
)
|
|
|
(2
|
)
|
|
|
(2
|
)
|
|
|
(3
|
)
|
|
Total:
|
|
|
(1
|
)
|
|
|
(2
|
)
|
|
$
|
7,500,000
|
|
|
$
|
869.25
|
|
|
(1)
|
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate number of warrants to purchase common stock and/or preferred stock, such indeterminate number of subscription rights, such indeterminate number of stock purchase contracts and such indeterminate number of units consisting of any combination of the foregoing as may be sold from time to time, which shall have an aggregate initial offering price not to exceed $7,500,000. Any securities registered hereunder may be sold separately or as units in combination with other securities registered hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock, such indeterminate number of warrants to purchase common stock or preferred stock, such indeterminate number of subscription rights, such indeterminate number of stock purchase contracts and such indeterminate number of units consisting of any combination of the foregoing as may be issued upon conversion, exchange or exercise of, or pursuant to the anti-dilution provisions of, any of such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the securities being registered hereunder include such indeterminate number of shares of common stock and preferred stock, such indeterminate number of warrants to purchase common stock or preferred stock, such indeterminate number of subscription rights, such indeterminate number of stock purchase contracts and such indeterminate number of units consisting of any combination of the foregoing as may be issuable as a result of stock splits, stock dividends or similar transactions with respect to any of the securities being registered hereunder.
|
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(2)
|
The proposed maximum offering price class of security registered hereunder will be determined from time to time in connection with, and at the time of, the issuance of such shares of common stock and is not specified as to the securities pursuant to General Instruction II.D. of Form S-3, as amended.
|
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act based on the proposed maximum aggregate offering price of all securities listed.
|
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, as amended, or until the registration statement shall become effective on such date as the Securities
and Exchange 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. This prospectus is not an offer to sell these securities and it is not soliciting an offer
to buy these securities in any state or other jurisdiction where the offer or sale is not permitted.
Subject to completion, dated
October 4, 2016
PROSPECTUS
Naked Brand Group Inc.
$7,500,000
Common Stock, Preferred Stock
Warrants, Subscription Rights,
Stock Purchase Contracts and Units
________________________________________
This prospectus covers our offer and sale
from time to time of our common stock, preferred stock, warrants to purchase common stock and/or preferred stock, subscription
rights to purchase preferred stock, common stock and/or other securities, stock purchase contracts to purchase shares of our common
stock and/or preferred stock, and units in one or more offerings. The aggregate offering price of all securities sold by us under
this prospectus may not exceed $7,500,000.
This prospectus describes some of the general
terms that may apply to an offering of these securities and the general manner in which these securities may be offered. Each time
we offer and sell these securities we will provide specific terms of such offering in a supplement to this prospectus. A prospectus
supplement may also add, update or change information contained in this prospectus or in documents we have incorporated by reference
into this prospectus and, accordingly, to the extent inconsistent, information in or incorporated by reference in this prospectus
is superseded by the information in the prospectus supplement and any other offering material related to such securities.
We may offer and sell these securities from
time to time at fixed prices, at market prices or at negotiated prices, and such securities may be offered and sold to or through
one or more underwriters, dealers or agents or directly to purchasers on a continuous or delayed basis.
Our common stock is traded on the NASDAQ
Capital Market under the symbol “NAKD.” On October 3, 2016, the last reported sale price of our common stock on
the NASDAQ Capital Market was $1.50 per share.
As of October 3, 2016, the aggregate
market value of our outstanding common stock held by non-affiliates was approximately $7,273,859, which was calculated based on
4,849,239 shares of outstanding common stock held by non-affiliates and on a price per share of $1.50. Pursuant to General Instruction
I.B.6 of Form S-3, in no event will we sell the shelf securities in a public primary offering with a value exceeding more than
one-third of the aggregate market value of our voting and non-voting common equity held by non-affiliates in any 12-month period
as long as the aggregate market value of our outstanding voting and non-voting common equity held by non-affiliates is less than
$75 million. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold any
securities pursuant to General Instruction I.B.6 of Form S-3.
INVESTING IN OUR SECURITIES INVOLVES
A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK FACTORS”
CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT WE HAVE AUTHORIZED FOR USE IN CONNECTION WITH A SPECIFIC OFFERING, AND UNDER
SIMILAR HEADINGS IN THE DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE
A SALE OF ANY SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
________________________________________
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of
this prospectus. Any representation to the contrary is a criminal offense.
________________________________________
The date of this prospectus is ________________,
2016
TABLE OF CONTENTS
About This
Prospectus
This prospectus is part of a registration
statement that we filed with the United States Securities and Exchange Commission (the “SEC”), using a “shelf”
registration process. Under this shelf registration process, we may, from time to time, offer and sell, either separately or together,
any combination of the securities described in this prospectus in one or more offerings for cash. We may also issue any of the
common stock, preferred stock, warrants, subscription rights, stock purchase contracts or units upon conversion, exchange or exercise
of any of the securities mentioned above. The aggregate amount of securities that we may offer under the registration statement
is $7,500,000, denominated in U.S. dollars or the equivalent in foreign currencies, currency units or composite currencies. We
are subject to the provisions of General Instruction I.B.6. of the General Instructions to Form S-3, which provide that as long
as the aggregate market value of our outstanding voting and non-voting common equity held by non-affiliates of our company is less
than $75 million, then the aggregate market value of securities sold by us or on our behalf on Form S-3, during the period of 12
calendar months immediately prior to, and including, the sale, is no more than one-third of the aggregate market value of the voting
and non-voting common equity held by non-affiliates of our company. We have no outstanding non-voting common equity.
This prospectus describes some of the general
terms that may apply to an offering of our securities and the general manner in which they may be offered. Each time we sell any
securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the
terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus or in
documents we have incorporated by reference into this prospectus and, accordingly, to the extent inconsistent, information in or
incorporated by reference in this prospectus is superseded by the information in the prospectus supplement and any other offering
material related to such securities.
This prospectus may not be used to sell
any securities unless accompanied by a prospectus supplement. You should carefully read this prospectus, the applicable prospectus
supplement, the information and documents incorporated herein by reference and the additional information described under the heading
“Where You Can Find Additional Information” in this prospectus, before you invest in any of the securities offered
hereunder.
You should rely only on the information
contained in this prospectus or any accompanying prospectus supplement to this prospectus. We have not authorized anyone to provide
you with any information other than that contained in this prospectus and any accompanying prospectus supplement to this prospectus.
We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give
you. This prospectus and any accompanying supplement to this prospectus do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and any accompanying
supplement to this prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction
to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
For investors outside the United States:
We have not done anything that would permit this offering or possession or distribution of this prospectus or any accompanying
prospectus supplement to this prospectus in any jurisdiction where action for that purpose is required, other than in the United
States. Persons outside the United States who come into possession of this prospectus or any accompanying prospectus supplement
to this prospectus must inform themselves about, and observe any restrictions relating to, the offering of securities and the distribution
of this prospectus outside the United States.
As used in this prospectus, the terms “we,”
“us,” “our” and “our company” mean Naked Brand Group Inc. and our wholly-owned subsidiary,
Naked Inc., as applicable, unless the context clearly indicates otherwise.
Where You
Can Find More Information
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Such filings are available to the public over the internet at the SEC’s
website at http://www.sec.gov. You may review and copy any document we file with the SEC at the SEC’s public reference room
at 100 F Street, N.E. Washington, D.C. 20549 on official business days during the hours of 10 a.m. to 3 p.m. You may obtain information
on the operation of the public reference room by calling the SEC at 1-800-SEC-0330.
Incorporation
of Information by Reference
The SEC allows us to “incorporate
by reference” into this prospectus the information we file with the SEC, which means that we can disclose important information
to you by referring you to those documents. Any information referenced this way is considered to be part of this prospectus, and
any information that we file later with the SEC will automatically update and, where applicable, supersede this information. We
incorporate by reference the following documents that we have filed with the SEC (other than, in each case, documents or information
deemed to have been furnished and not filed in accordance with the SEC’s rules):
(a) Our Annual Report on Form 10-K for the
year ended January 31, 2016, as filed with the SEC on April 29, 2016, as amended by Amendment No. 1 on Form 10-K, as filed with
the SEC on May 31, 2016;
(b) Our Quarterly Reports on Form 10-Q for
the quarter ended April 30, 2016, as filed with the SEC on June 14, 2016, and for the quarter ended July 31, 2016, as filed with
the SEC on September 14, 2016;
(c) Our Current Reports on Form 8-K filed
with the SEC on March 23, 2016, July 26, 2016 (as amended by our Current Report on Form 8-K/A filed with the SEC on July 27, 2016),
August 9, 2016, August 12, 2016 and September 27, 2016; and
(d) The description of our common stock
set forth under the heading “Description of Securities” in our Registration Statement on Form S-1 (File No. 333-207110)
originally filed with the SEC on September 24, 2015, as amended, and in the prospectus dated December 17, 2016 which forms a part
of such registration statement, as modified by our reports we file under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
We also incorporate by reference into this
prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or
after the date of this prospectus and prior to the completion or termination of the offering of the securities described in this
prospectus, including all such documents filed by us pursuant to the Exchange Act after the date of the initial registration statement
and prior to the effectiveness of the registration statement, but excluding any information deemed furnished and not filed with
the SEC.
Any statement contained in a document incorporated
or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a statement contained
herein, or in a subsequently filed document also incorporated or deemed to be incorporated herein by reference, modifies or supersedes
such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
This prospectus is part of a registration
statement on Form S-3 we have filed with the SEC relating to the securities. As permitted by SEC rules, this prospectus does not
contain all of the information included in the registration statement and the accompanying exhibits and schedules we file with
the SEC. We have filed or incorporated by reference certain legal documents that control the terms of the shares of common stock
offered under this prospectus as exhibits to the registration statement. We may file certain other legal documents that control
the terms of the shares of common stock offered by this prospectus as exhibits to reports we file with the SEC. You may refer to
the registration statement and the exhibits and schedules thereto for more information about us and our securities. The registration
statement and exhibits and schedules are also available at the SEC’s Public Reference Room or through its website.
We will provide to each person, including
any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the reports or documents that we incorporate by
reference in this prospectus contained in the registration statement (except exhibits to the documents that are not specifically
incorporated by reference) at no cost to you, by writing or calling us at: Naked Brand Group Inc., Attn: Corporate Secretary, 10th
Floor - 95 Madison Avenue, New York, New York 10016, telephone number: (212) 851-8050. Information about us is also available at
our website at www.nakedbrand.com. Except for the specific incorporated reports and documents listed above, no information available
on or through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms
a part.
Cautionary
Note Regarding Forward-Looking StatementS
This prospectus and any accompanying prospectus
supplements contain or incorporate by reference forward-looking statements within the meaning of Section 27A of the Securities
Act, and Section 21E of the Exchange Act. Forward-looking statements are projections in respect of future events or our future
financial performance. In some cases, you can identify forward-looking statements by terminology such as “may,” “should,”
“would,” “intend,” “expect,” “plan,” “anticipate,” “believe,”
“estimate,” “predict,” “potential” or “continue” or the negative of these terms
or other comparable terminology and include, but are not limited to, statements regarding: our product line; our business plan;
the enforceability of our intellectual property rights; projections of market prices and costs; supply and demand for our products;
future capital expenditures; our collaboration with Dwyane Wade; relationships with retailers, wholesalers and other business partners;
ability to add new customer accounts; and future borrowings under the Joint Factoring Agreement with Wells Fargo. The material
assumptions supporting these forward-looking statements include, among other things: our ability to obtain any necessary financing
on acceptable terms; timing and amount of capital expenditures; the enforcement of our intellectual property rights; our ability
to launch new product lines; retention of skilled personnel; continuation of current tax and regulatory regimes; current exchange
rates and interest rates; and general economic and financial market conditions. Management believes that these forward-looking
statements are reasonable as and when made. However, caution should be taken not to place undue reliance on any such forward-looking
statements because such statements speak only as of the date when made. We undertake no obligation to publicly update or revise
any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
In addition, forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ
materially from our historical experience and our present expectations or projections. These risks and uncertainties include: (1)
a downturn in international economic conditions; (2) any adverse occurrence with respect to the development or marketing of our
apparel products; (3) any adverse occurrence with respect to any of our licensing or endorsement agreements; (4) our ability to
successfully bring apparel products to market; (5) our ability to successfully collaborate with Dwayne Wade; (6) product development
or other initiatives by our competitors; (7) fluctuations in the availability and cost of materials required to produce our products;
(8) any adverse occurrence with respect to distribution of our products; (9) potential negative financial impact from claims, lawsuits
and other legal proceedings or challenges; (10) our ability to enforce our intellectual property rights; (11) our ability to hire
and retain senior management and key employees; and (12) other factors beyond our control. Additional risks also include those
described under “Risk Factors” in this prospectus, in our Annual Report on Form 10-K for the fiscal year ended January
31, 2016 in Item 1A. under “Risk Factors,” and the risks described from time to time in our future reports filed with
the SEC.
About Our
Company
We are an apparel and lifestyle brand company
that is currently focused on innerwear products for women and men. Under our flagship brand name and registered trademark “Naked
®
”,
we design, manufacture and sell men’s and women’s underwear, intimate apparel, loungewear and sleepwear through retail
partners and direct to consumer through our online retail store www.wearnaked.com. We have a growing retail footprint for our men’s
innerwear products in premium department and specialty stores and internet retailers in North America, including accounts such
as Nordstrom, Dillard’s, Bloomingdale’s, Amazon.com, Soma.com, Saksfifthavenue.com, barenecessities.com and others.
Our products are sold in North America;
however, we believe our products appeal to men and women around the globe. We are currently exploring international distribution
relationships for our Naked and Wade X Naked products and we anticipate that we will commence selling a limited number of products
in markets such as Europe, Asia, and Central and South America starting in 2017.
In the future, we intend to expand the Naked
brand on our own and through licensing partnerships into other apparel and product categories that can exemplify the mission of
the brand, such as athleisure and activewear, swimwear, sportswear, hosiery, bedding and home products, and more.
Our common stock is traded on the NASDAQ
Capital Market under the symbol “NAKD.” On October 3, 2016, the last reported sale price of our common stock on the
NASDAQ Capital Market was $1.50 per share.
Additional information regarding our company,
including our audited financial statements and descriptions of our business, is contained in the documents incorporated by reference
in this prospectus. See “Where You Can Find Additional Information” on page 1 and “Information Incorporated by
Reference” beginning on page 1.
Risk Factors
Investing in our common stock involves a
high degree of risk. Before making an investment decision, you should carefully consider the risks and uncertainties set forth
in the “Risk Factors” section of our most recent Annual Report on Form 10-K, as revised or supplemented by our Quarterly
Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report on Form 10-K, each of which is incorporated
by reference into this prospectus, and you should also carefully consider any other information we include or incorporate by reference
in this prospectus or include in any applicable prospectus supplement, including our financial statements and the related notes
thereto. The risks and uncertainties described in our filings with the SEC and incorporated by reference into this prospectus are
not the only ones we face. Additional risks and uncertainties not presently known to us, or that we currently believe are not material,
also may become important factors that affect us and impair our business operations. The occurrence of any of the events or developments
discussed in the risk factors described in our filings with the SEC could have a material and adverse impact on our business, results
of operations, financial condition and cash flows, and in such case, our future prospects would likely be materially and adversely
affected. If any of such events or developments were to happen, you could lose part or all of your investment. Further, our actual
results could differ materially and adversely from those anticipated in our forward-looking statements as a result of certain factors.
Use of Proceeds
Unless otherwise indicated in a prospectus
supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we anticipate
that the net proceeds from our sale of any securities offered hereunder, if any, will be used for general corporate purposes, which
may include, among other things, working capital, acquisitions, capital expenditures, repayment of debt and other business opportunities.
There is no guarantee that we will sell
the securities described in this prospectus and, in the event that we do, there is no guarantee as to the total number of securities
that we would sell, nor is there any guarantee as to the amount of net proceeds to be used specifically for the foregoing purposes.
Our management will have significant discretion and flexibility in applying the net proceeds from the sale of these securities.
Our plans to use the estimated net proceeds from the sale of these securities may change and, if they do, we will update this information
in a prospectus supplement.
DESCRIPTIONS
OF THE SECURITIES WE MAY OFFER
We may sell from time to time, in one or
more offerings, shares of our common stock and/or preferred stock, warrants to purchase common stock and/or preferred stock, subscription
rights to purchase preferred stock, common stock and/or other securities, stock purchase contracts to purchase shares of our common
stock and/or preferred stock, and units in one or more offerings, and/or units consisting of one or more of the foregoing securities.
The descriptions of the securities contained
in this prospectus, together with the additional information we include in any applicable prospectus supplement or in any free
writing prospectuses we have authorized for use in connection with a specific offering, summarize some of the terms and other provisions
of the various types of securities that we may offer under this prospectus. These summary descriptions are not meant to be complete
descriptions of each security. We will describe in the applicable prospectus supplement relating to a particular offering the specific
terms of the securities offered under that prospectus supplement. The applicable prospectus supplement for a particular security
may specify different or additional terms.
DESCRIPTION
OF CAPITAL STOCK
General
The following description of our common
stock and preferred stock, together with the additional information we include in any applicable prospectus supplement or in any
free writing prospectuses we have authorized for use in connection with a specific offering, summarizes some of the terms and provisions
of the shares of our common stock and preferred stock that we may offer under this prospectus. These summary descriptions of our
common stock and preferred stock are not meant to be complete descriptions of each security. For the complete terms of our common
stock and preferred stock, please refer to our articles of incorporation, as may be amended from time to time, any certificates
of designation for our preferred stock that may be authorized from time to time, and our bylaws, as amended from time to time.
The Nevada Revised Statutes may also affect the terms of these securities. While the terms we have summarized below will apply
generally to any future common stock or preferred stock that we may offer under this prospectus, we will describe the specific
terms of any series of these securities in more detail in the applicable prospectus supplement. The applicable prospectus supplement
for a particular offering of our common stock or preferred stock may specify different or additional terms.
As of October 3, 2016, 2016, our authorized
capital stock consists of 18,000,000 shares of common stock having a par value of $0.001 per share, of which there were 6,069,982
shares are issued and outstanding as of such date, and 2,000,000 shares of preferred stock having a par value of $0.001 per share,
of which there were no shares issued and outstanding as of such date. As of October 3, 2016, the outstanding shares of our common
stock were held by 247 holders of record. The actual number of stockholders is greater than this number of record holders and includes
beneficial owners of our common stock whose shares are held in street name by brokers and other nominees.
Common Stock
Voting Rights
Each share of common stock entitles the
holder to one vote on all matters submitted to a vote of the stockholders including the election of directors. According to our
bylaws, if a quorum is present, action on a matter by the stockholders is approved if the votes cast by the stockholders favoring
the action exceed the votes cast opposing the action, unless the vote of a greater number of affirmative votes is required by statute
or the articles of incorporation, in which case such greater number of votes shall be required. Our bylaws provide that one third
(33.3%) of the votes entitled to be cast on a matter by the stockholders constitutes a quorum of the stockholders for action on
that matter. Our bylaws also provide that any action required or permitted to be taken at a meeting of the stockholders may be
taken without a meeting, if one or more written consents setting forth the action so taken shall be signed, either manually or
in facsimile, by stockholders holding at least a majority of the votes entitled to be cast at a meeting, unless the vote of a greater
number of affirmative votes is required by statute or the articles of incorporation, in which case the consent of the stockholders
holding such greater number of votes shall be required.
The holders of our common stock do not have
cumulative voting rights, which means that the holders of more than 50% of our outstanding common stock, voting for the election
of directors, can elect all of the directors to be elected, if they so choose. In such event, the holders of the remaining shares
will not be able to elect any of our directors.
Dividend Rights
The holders of our common stock are entitled
to receive the dividends as may be declared by our board of directors out of funds legally available for dividends. Our board of
directors is not obligated to declare a dividend. Any future dividends will be subject to the discretion of our board of directors
and will depend upon, among other things, future earnings, the operating and financial condition of our company, its capital requirements,
general business conditions and other pertinent factors. We have not paid any dividends since our inception and we do not anticipate
that dividends will be paid in the foreseeable future.
Miscellaneous Rights and Provisions
In the event of our liquidation or dissolution,
whether voluntary or involuntary, each share of our common stock is entitled to share ratably in any assets available for distribution
to holders of our common stock after satisfaction of all liabilities.
Our common stock is not convertible or redeemable
and has no preemptive, subscription or conversion rights. There are no conversions, redemption, sinking fund or similar provisions
regarding our common stock.
Our common stock, after the fixed consideration
thereof has been paid or performed, is not subject to assessment, and the holders of our common stock are not individually liable
for the debts and liabilities of our company.
Our bylaws provide that our bylaws may be
amended or repealed, or new bylaws may be adopted, by the affirmative vote of a majority of the board of directors at any regular
or special meeting of the board, unless the articles of incorporation or statute reserves this power to the stockholders.
Preferred Stock
Our board of directors is authorized, subject
to the limitations prescribed in our articles of incorporation and Nevada law, to provide for the issuance of shares of blank check
preferred stock in series, and to establish from time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations and restrictions
thereof. The authority of our board of directors with respect to each series of preferred stock includes, but is not limited to,
the rights to determine the following:
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the number of shares constituting that series of preferred stock and the distinctive designation of that series, which may
be a distinguishing number, letter or title;
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the dividend rate on the shares of that series of preferred stock, whether dividends will be cumulative, and if so, from which
date(s), and the relative rights of priority, if any, of payment of dividends on shares of that series;
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whether that series of preferred stock will have voting rights, in addition to the voting rights provided by law, and, if so,
the terms of such voting rights;
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whether that series of preferred stock will have conversion privileges and, if so, the terms and conditions of such conversion,
including provision for adjustment of the conversion rate in such events as the Board of Directors determines;
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whether or not the shares of that series of preferred stock will be redeemable and, if so, the terms and conditions of such
redemption, including the date or date upon or after which they are redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different redemption dates;
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whether that series of preferred stock will have a sinking fund for the redemption or purchase of shares of that series and,
if so, the terms and amount of such sinking fund;
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the rights of the shares of that series of preferred stock in the event of voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that series; and
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any other relative rights, preferences and limitations of that series of preferred stock.
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Our board of directors may designate and
issue series of our preferred stock with dividend, liquidation, conversion, voting or other rights that may be superior to those
of our common stock. The effects of the issuance of preferred stock upon holders of our common stock may include, among other things:
(1) a preference in the payment of dividends to holders of preferred stock, which may restrict our ability to declare dividends
on our common stock; (2) dilution of voting power if holders of preferred stock are given voting rights; (3) dilution of equity
interests and voting power if the preferred stock is convertible, and converted into, common stock; or (4) a preference in payments
upon liquidation to holders of preferred stock, which may limit liquidation payments on our common stock.
We will fix the designations, voting powers,
preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations
or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form
of any certificate of designation that contains the terms of the series of preferred stock we are offering. We will describe in
the applicable prospectus supplement the terms of the series of preferred stock being offered.
Anti-Takeover Provisions
Some features of the Nevada Revised Statutes,
which are further described below, may have the effect of deterring third parties from making takeover bids for control of our
company or may be used to hinder or delay a takeover bid. This would decrease the chance that our stockholders would realize a
premium over market price for their shares of common stock as a result of a takeover bid.
Acquisition of Controlling Interest
The Nevada Revised Statutes contain provisions
governing acquisition of a controlling interest of a Nevada corporation. These provisions provide generally that any person or
entity that acquires a certain percentage of the outstanding voting shares of a Nevada corporation may be denied voting rights
with respect to the acquired shares, unless the holders of a majority of the voting power of the corporation, excluding shares
as to which any of such acquiring person or entity, an officer or a director of the corporation, or an employee of the corporation
exercises voting rights, elect to restore such voting rights in whole or in part. These provisions apply whenever a person or entity
acquires shares that, but for the operation of these provisions, would bring voting power of such person or entity in the election
of directors within any of the following three ranges:
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20% or more but less than 33 1/3%;
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33 1/3% or more but less than or equal to 50%; or
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The stockholders or board of directors of
a corporation may elect to exempt the stock of the corporation from these provisions through adoption of a provision to that effect
in the articles of incorporation or bylaws of the corporation. Our articles of incorporation and bylaws do not exempt our common
stock from these provisions.
These provisions are applicable only to
a Nevada corporation, which:
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has 200 or more stockholders of record, at least 100 of whom have addresses in Nevada appearing on the stock ledger of the
corporation; and
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does business in Nevada directly or through an affiliated corporation.
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At this time, we do not have 100 stockholders
of record who have addresses in Nevada appearing on the stock ledger of our company, nor do we believe that we do business in Nevada
directly or through an affiliated corporation. Therefore, we believe that these provisions do not apply to acquisitions of our
shares and will not until such time as these requirements have been met. At such time as they may apply to us, these provisions
may discourage companies or persons interested in acquiring a significant interest in or control of our company, regardless of
whether such acquisition may be in the interest of our stockholders.
Combination with Interested Stockholder
The Nevada Revised Statutes contain provisions
governing combination of a Nevada corporation that has 200 or more stockholders of record with an interested stockholder. As of
October 3, 2016, we had 247 stockholders of record. Therefore, these provisions apply to us as of such date.
A corporation affected by these provisions
may not engage in a combination within three years after the interested stockholder acquires his, her or its shares, unless the
combination or purchase is approved by the board of directors before the interested stockholder acquires such shares. Generally,
if approval is not obtained, then after the expiration of the three-year period, the business combination may be consummated with
the approval of the board of directors before the person became an interested stockholder or a majority of the voting power held
by disinterested stockholders, or if the consideration to be received per share by disinterested stockholders is at least equal
to the highest of:
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the highest price per share paid by the interested stockholder within the three years immediately preceding the date of the
announcement of the combination or within three years immediately before, or in the transaction in which he, she or it became an
interested stockholder, whichever is higher;
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the market value per share on the date of announcement of the combination or the date the person became an interested stockholder,
whichever is higher; or
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if higher for the holders of preferred stock, the highest liquidation value of the preferred stock, if any.
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Generally, these provisions define an interested
stockholder as a person who is the beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding
voting shares of a corporation. Generally, these provisions define combination to include any merger or consolidation with an interested
stockholder, or any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction or a series of transactions,
with an interested stockholder of assets of the corporation having:
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an aggregate market value equal to 5% or more of the aggregate market value of the assets of the corporation;
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an aggregate market value equal to 5% or more of the aggregate market value of all outstanding shares of the corporation; or
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representing 10% or more of the earning power or net income of the corporation.
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Articles of Incorporation and Bylaws
Pursuant to our Articles of Incorporation,
the existence of authorized but unissued common stock and undesignated preferred stock may enable our board of directors to make
more difficult or to discourage an attempt to obtain control of our Company by means of a merger, tender offer, proxy contest or
otherwise, and thereby to protect the continuity of management. If, in the due exercise of its fiduciary obligations,
the board of directors were to determine that a takeover proposal was not in our best interest, such shares could be issued by
the board of directors without stockholder approval in one or more transactions that might prevent or render more difficult or
costly the completion of the takeover transaction by diluting the voting or other rights of the proposed acquirer or insurgent
stockholder group, by putting a substantial voting block in institutional or other hands that might undertake to support the position
of the incumbent board of directors, by effecting an acquisition that might complicate or preclude the takeover, or otherwise.
In addition, our Articles of Incorporation
grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred
stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution
to holders of shares of common stock. The issuance also may adversely affect the rights and powers, including voting
rights, of those holders and may have the effect of delaying, deterring or preventing a change in control of our Company.
Stock Options and Warrants
As of October 3, 2016, we have reserved
the following shares of common stock for issuance pursuant to stock option and warrant agreements:
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2,129,899 shares of our common stock are reserved for issuance under various outstanding option agreements, at a weighted average
exercise price of $5.10 per share;
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1,645,198 shares of our common stock, at a weighted average exercise price of $5.27 per share, are reserved for issuance under
various outstanding warrant agreements; and
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667,101 shares of our common stock have been reserved for the issuance of awards under our 2014 Long-Term Incentive Plan.
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Transfer Agent and Registrar
The transfer agent and registrar for our
common stock is Standard Registrar and Transfer Co, Inc. Its address is 12528 South 1840 Street, Draper, Utah 84020, and its
telephone number is (801) 571-8844.
Listing
Our common stock is registered and is listed
on the NASDAQ Capital Market under the symbol “NAKD.” The applicable prospectus supplement will contain information,
where applicable, as to any other listing, if any, on the NASDAQ Capital Market or any securities market or other exchange of any
other securities covered by such prospectus supplement.
DESCRIPTION
OF WARRANTS
The following description, together with
the additional information we include in any applicable prospectus supplement or in any free writing prospectuses we have authorized
for use in connection with a specific offering, summarizes some of the terms and other provisions of the warrants to purchase our
common stock and/or preferred stock that we may offer under this prospectus. We may issue warrants in one or more series independently
or together with other securities. Each warrant will entitle the holder to purchase for cash a number of shares of our common stock
and/or preferred stock at the exercise price as will in each case be described in, or can be determined from, the applicable prospectus
supplement relating to the offered warrants. We will issue warrants under one or more warrant agreements between us and a warrant
agent that we will name in the prospectus supplement.
This summary description of some of the
terms and other provisions of the warrants that may be offered under this prospectus is not complete and is qualified in its entirety
by reference to the form of warrant and/or the warrant agreement and warrant certificate and any supplemental agreements applicable
to a particular series of warrants that we may offer under this prospectus. We will file with the SEC the form of warrant and/or
the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are
offering, and any supplemental agreements, before the issuance of such warrants. The following summary description of some of the
terms and other provisions of the warrants are subject to, and qualified in their entirety by reference to, all the provisions
of the form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements applicable
to a particular series of warrants that we may offer under this prospectus.
While the terms we have summarized below
will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series
of offered warrants in more detail in the applicable prospectus supplement. The following description of warrants will apply to
the warrants offered under this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable
prospectus supplement for a particular series of warrants may specify different or additional terms.
We urge you to read the applicable prospectus
supplement related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing
prospectuses, and the complete form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental
agreements, that contain the terms of the warrants.
The applicable prospectus supplement relating
to a series of warrants offered under this prospectus will describe the following terms, where applicable, of such offered warrants:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security;
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the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and
the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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the terms of any right of ours to accelerate the exercisability of the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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where the warrant certificates may be transferred and exchanged;
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the date, if any, on and after which the warrants and the related shares of common stock or debt securities or other securities
will be separately transferable;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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The applicable prospectus supplement relating
to a series of warrants offered under this prospectus may also include, if applicable, a discussion of certain U.S. federal income
tax and ERISA considerations.
Each warrant will entitle the holder to
purchase common stock and/or preferred stock as specified in the applicable prospectus supplement and warrant agreement at the
exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement and warrant agreement. The warrants
may be exercised as set forth in the prospectus supplement and warrant agreement. Warrants will be exercisable for U.S. dollars
only. Unless we otherwise specify in the applicable prospectus supplement and warrant agreement, warrants may be exercised at any
time up to the close of business on the expiration date set forth in the applicable prospectus supplement and warrant agreement.
We will specify the place or places where, and the manner in which, warrants may be exercised in the applicable prospectus supplement
and warrant agreement. After the close of business on the expiration date, unexercised warrants will become void.
Upon receipt of payment and the warrant
or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent,
if any, or any other office, including ours, indicated in the applicable prospectus supplement, we will, as soon as practicable,
issue and deliver the common stock and/or preferred stock purchasable upon such exercise. If less than all of the warrants (or
the warrants represented by such warrant certificate) are exercised, a new warrant or a new warrant certificate, as applicable,
will be issued for the remaining warrants.
Prior to the exercise of any warrants to
purchase common stock and/or preferred stock, holders of the warrants will not have any of the rights of holders of the common
stock or preferred stock purchasable upon exercise, including, the right to vote or to receive any payments of dividends on the
common stock or preferred stock purchasable upon exercise.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
The following description, together with
the additional information we include in any applicable prospectus supplement or in any free writing prospectuses we have authorized
for use in connection with a specific offering, summarizes some of the terms and other provisions of the subscription rights to
purchase our common stock, preferred stock or other securities that we may offer under this prospectus. We may issue subscription
rights in one or more series independently or together with other securities. In connection with any offering of subscription rights,
we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or
other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
This summary description of some of the
terms and other provisions of the subscription rights that may be offered under this prospectus is not complete and is qualified
in its entirety by reference to the form of subscription rights certificate and any supplemental agreements applicable to a particular
series of subscription rights that we may offer under this prospectus. We will file with the SEC the form of subscription rights
certificate that contains the terms of the particular series of subscription rights we are offering, and any supplemental agreements,
before the issuance of such subscription rights. The following summary description of some of the terms and other provisions of
the subscription rights are subject to, and qualified in their entirety by reference to, all the provisions of the form of subscription
rights certificate and any supplemental agreements applicable to a particular series of subscription rights that we may offer under
this prospectus.
While the terms we have summarized below
will apply generally to any subscription rights that we may offer under this prospectus, we will describe the particular terms
of any series of offered subscription rights in more detail in the applicable prospectus supplement. The following description
of subscription rights will apply to the subscription rights offered under this prospectus unless we provide otherwise in the applicable
prospectus supplement. The applicable prospectus supplement for a particular series of subscription rights may specify different
or additional terms.
We urge you to read the applicable prospectus
supplement related to the particular series of subscription rights that we may offer under this prospectus, as well as any related
free writing prospectuses, and the complete form of subscription rights certificate and any supplemental agreements, that contain
the terms of the subscription rights.
The applicable prospectus supplement relating
to a series of subscription rights offered under this prospectus will describe the following terms, where applicable, of such offered
subscription rights:
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the price, if any, for the subscription rights;
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the exercise price payable for each share of preferred stock, common stock or other securities upon the exercise of the subscription
rights;
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the number of subscription rights issued to each stockholder;
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the number and terms of the shares of preferred stock, common stock, or other securities which may be purchased per each subscription
right;
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the extent to which the subscription rights are transferable;
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise
of the subscription rights;
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the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights
shall expire;
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the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities;
and
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with
the offering of subscription rights.
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DESCRIPTION
OF STOCK PURCHASE CONTRACTS
We may issue stock purchase contracts representing
contracts obligating holders to purchase from us, and us to sell to the holders, a specified or varying number of shares of our
common or preferred stock at a future date or dates. Alternatively, the stock purchase contracts may obligate us to purchase from
holders, and obligate holders to sell to us, a specified or varying number of shares of our common or preferred stock at a future
date or dates. The price per share and the number of shares may be fixed at the time the stock purchase contracts are entered into
or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts
may require us to make periodic payments to the holders of the common or preferred stock or require the holders of the common or
preferred stock to make periodic payments to us. These payments may be unsecured or prefunded and may be paid on a current or on
a deferred basis. The stock purchase contracts may require holders to secure their obligations under the contracts in a specified
manner. The applicable prospectus supplement will describe the terms of any stock purchase contract and will contain a summary
of certain United States federal income tax consequences applicable to the stock purchase contracts.
DESCRIPTION
OF UNITS
We may issue units comprised of one or more
of the other securities described in this prospectus or in any prospectus supplement in any combination. Each unit will be issued
so that the holder of the unit is also the holder, with the rights and obligations of a holder, of each security included in the
unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified date or upon the occurrence of a specified event or occurrence.
The applicable prospectus supplement relating
to units offered under this prospectus will describe the following terms, where applicable, of such units:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any unit agreement under which the units will be issued;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units; and
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whether the units will be issued in fully registered or global form.
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Plan of
Distribution
We may sell the securities described in
this prospectus separately or together from time to time in one or more transactions on a continuous or delayed basis through one
or more underwriters or dealers, through agents, or directly to one or more purchasers, in private transactions, at a fixed price
or prices, which may be changed, or from time to time at market prices prevailing at the time of sale, at prices related to the
prevailing market prices, or at negotiated prices. The securities may be sold through a rights offering, forward contracts or similar
arrangements. In any distribution of subscription rights to stockholders, if all of the underlying securities are not subscribed
for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters,
dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties. We may also sell and distribute
the securities offered under this prospectus from time to time in one or more transactions, including in “at the market offerings”
within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on
an exchange or otherwise.
Each time that we use this prospectus to
sell the securities described herein, we will describe the method of distribution and the terms of the offering of the securities
offered hereunder in a prospectus supplement, information incorporated by reference or other offering material, including:
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the name or names of the underwriters, dealers or agent, if any;
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the purchase price of the securities and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any underwriting discounts and other items constituting compensation to underwriters, dealers or agents;
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the common stock may be listed.
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Only underwriters we name in the prospectus
supplement, information incorporated by reference or other offering material are underwriters of the securities offered thereunder.
Any underwritten offering may be on a best efforts or a firm commitment basis.
If we use underwriters in the sale, they
will acquire the securities for their own account and may resell them from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations
of the underwriters to purchase securities will be subject to the conditions set forth in the applicable underwriting agreement.
We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by
the prospectus supplement, information incorporated by reference or other offering material. In connection with the sale of securities,
underwriters may receive compensation from us or from purchasers of securities for whom they may act as agents. This compensation
may be in the form of discounts, concessions or commissions.
Underwriters may sell securities to or through
dealers, and these 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. Underwriters, dealers and agents that participate in the
distribution of securities could be considered underwriters, and any discounts or commissions received by them from us and any
profit on the resale of securities by them could be considered underwriting discounts and commissions, under the Securities Act.
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time.
If we sell securities to a dealer, we will
sell the securities to the dealer, as principal. The name of the dealer and the terms of the transaction will be set forth in the
prospectus supplement, information incorporated by reference or other offering material. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of resale.
We may sell securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities, and we will describe
any commissions we will pay the agent, in the prospectus supplement, information incorporated by reference or other offering material.
Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
Unless otherwise specified in the applicable
prospectus supplement, each series of securities will be a new issue with no established trading market, other than shares of our
common stock, which are listed on the NASDAQ Capital Market. Any common stock sold pursuant to a prospectus supplement will be
listed on the NASDAQ Capital Market, subject to official notice of issuance. We may elect to list any series of preferred stock,
warrants, subscription rights, stock purchase contracts, or units on an exchange, but we are not obligated to do so. It is possible
that one or more underwriters may make a market in the securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be given as to the liquidity of, or the trading market
for, any offered securities.
In connection with an offering, the underwriters
may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases
to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than
they are required to purchase in an offering. Stabilizing transactions consist of bids or purchases made for the purpose of preventing
or retarding a decline in the market price of the securities while an offering is in progress. The underwriters also may impose
a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received
by it because the underwriters have repurchased securities sold by or for the account of that underwriter in stabilizing or short-covering
transactions. These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the securities.
As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these activities
are commenced, they may be discontinued by the underwriters at any time. Underwriters may engage in overallotment. If any underwriters
create a short position in the securities in an offering in which they sell more securities than are set forth on the cover page
of the applicable prospectus supplement, the underwriters may reduce that short position by purchasing the securities in the open
market.
Under agreements entered into by us for
the purchase or sale of securities, underwriters and their controlling persons, dealers and agents may be entitled to indemnification
by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments
which they may be required to make in respect thereof. Underwriters, dealers or agents that participate in the offer of securities,
or their affiliates or associates, may have engaged or engage in transactions with and perform services for, us or our affiliates
in the ordinary course of business for which they may have received or receive customary fees and reimbursement of expenses.
Legal Matters
Unless otherwise specified in the applicable
prospectus supplement, the validity of the securities being offered under this prospectus has been passed upon for us by Duane
Morris LLP, New York, New York, and for any underwriters or agents by counsel named in the applicable prospectus supplement.
Experts
The consolidated financial statements of
our company as of January 31, 2016 and 2015 and each of the years then ended have been incorporated by reference herein and in
the registration statement of which this prospectus forms a part in reliance upon the reports of BDO USA, LLP, an 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 covering the January 31, 2016 consolidated financial statements contains an explanatory paragraph that states
that our company has incurred recurring losses from operations and has limited cash resources, which raise substantial doubt about
its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result
from the outcome of that uncertainty.
No expert named in the registration statement
of which this prospectus forms a part as having prepared or certified any part thereof (or named as having prepared or certified
a report or valuation for use in connection with such registration statement) or counsel named in this prospectus as having given
an opinion upon the validity of the securities being offered pursuant to this prospectus or upon other legal matters in connection
with the registration or offering of such securities was employed for such purpose on a contingency basis. Also, at the time of
such preparation, certification or opinion or at any time thereafter, through the date of effectiveness of such registration statement
or that part of such registration statement to which such preparation, certification or opinion relates, no such person had, or
is to receive, in connection with the offering, a substantial interest, direct or indirect, in our company or any of its parents
or subsidiaries. Nor was any such person connected with our company or any of its parents or subsidiaries as a promoter, managing
or principal underwriter, voting trustee, director, officer or employee.
Naked Brand Group Inc.
$7,500,000
Common Stock, Preferred Stock
Warrants, Subscription Rights,
Stock Purchase Contracts and Units
____________________, 2016
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with
the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, are as follows:
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Securities and Exchange Commission registration fees
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|
$
|
869.25
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|
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Accounting fees and expenses
|
|
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(1
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)
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|
Legal fees and expenses
|
|
|
(1
|
)
|
|
Transfer agent and registrar fees
|
|
|
(1
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)
|
|
Printing fees
|
|
|
(1
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)
|
|
Total
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$
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(1
|
)
|
(1) These fees will depend on the number of offerings and, therefore,
we cannot estimate such fees at this time. We will provide additional information regarding estimated fees and expenses at the
time we include information as to any securities in a prospectus supplement in accordance with Rule 430B.
Item 15. Indemnification of Directors and Officers.
The Nevada Revised Statutes provide that:
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·
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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, except an action by or in the
right of the corporation, by reason of the fact that he 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 him in connection with the action, suit or proceeding if he or she acted in good
faith and in a manner which he or she 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 his or her conduct was unlawful;
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|
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·
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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 or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that
he or she 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 amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him or her in connection
with the defense or settlement of the action or suit if he or she acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue
or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court
in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all
the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper;
and
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·
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to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding, or in defense of any claim, issue or matter therein, the corporation must indemnify
him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with
the defense.
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The Nevada Revised Statutes provide that
we may make any discretionary indemnification only as authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances. The determination must be made:
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|
·
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by our board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or
proceeding;
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|
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·
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if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by
independent legal counsel in a written opinion;
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|
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·
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if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion; or
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Our bylaws provide that our company shall
indemnify each director, officer, employee and agent of our company, his heirs, executors, administrators and all persons whom
our company is authorized to indemnify under the provisions of the Nevada Revised Statutes, to the fullest extent permitted by
law, (i) against all the expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any action, suit or proceeding, whether civil, criminal, administrative, investigative,
or in connection with any appeal therein, or otherwise, and (ii) against all expenses (including attorneys’ fees) actually
and reasonably incurred by him in connection with the defense or settlement of any action or suit by or in the right of our company,
or in connection with any appeal therein, or otherwise, if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of our company, and with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. Our bylaws also provide that our company may, in its discretion, pay the expenses (including
attorneys’ fees) incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment
of expenses incurred by a director or officer in advance of the final disposition of the proceeding shall be made only upon receipt
of an undertaking by the director or officer to repay all amounts advanced if it should be ultimately determined that the director
or officer is not entitled to be indemnified under the articles of incorporation of our company or otherwise. Such expenses (including
attorneys’ fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board
of directors deems appropriate.
Item 16. Exhibits.
A list of exhibits filed herewith or incorporated
by reference is contained in the Exhibit Index attached to this registration statement and incorporated herein by reference.
Item 17. Undertakings.
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 Securities and Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(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 (1)(i), (1)(ii) and (1)(iii)
above 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 Securities and Exchange 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) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) 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.
(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 the 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:
(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.
(6) 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
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.
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 Securities Act of 1933 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 Securities Act of 1933
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of New York in the State of New York, United States of America on October 4, 2016.
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NAKED BRAND GROUP INC.
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By:
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/s/ Carole Hochman
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Carole Hochman
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Chief Executive Officer, Chief Creative Officer and Director
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(Principal Executive Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints Joel Primus and Kai-Hsiang Lin, and each or either of them, as such
person’s true and lawful attorneys-in-fact and agents, with full power of substitution, for such person, and in such person’s
name, place and stead, in any and all capacities to sign any or all amendments or post-effective amendments to this registration
statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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/s/ Carole Hochman
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|
October 4, 2016
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|
Carole Hochman
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|
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Chief Executive Officer, Chief Creative Officer and Director
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|
|
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(Principal Executive Officer)
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/s/ Kai-Hsiang Lin
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|
October 4, 2016
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Kai-Hsiang Lin
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|
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|
Vice President of Finance
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|
|
|
(Principal Financial Officer and Principal Accounting Officer)
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|
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|
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/s/ Joel Primus
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|
October 4, 2016
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Joel Primus
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|
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President and Director
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/s/ Andrew Kaplan
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|
October 4, 2016
|
|
Andrew Kaplan
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|
|
Director
|
|
|
|
|
|
|
|
/s/ David Hochman
|
|
October 4, 2016
|
|
David Hochman
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|
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Director
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|
|
|
|
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/s/ Paul Hayes
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|
October 4, 2016
|
|
Paul Hayes
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Director
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/s/ Martha Olson
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|
October 4, 2016
|
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Martha Olson
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Director
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/s/ Jesse Cole
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October 4, 2016
|
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Jesse Cole
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Director
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Exhibit Index
Exhibit
Number
|
|
Description of Exhibit
|
|
1.1*
|
|
Form of Underwriting Agreement
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|
2.1
|
|
Acquisition Agreement dated February 28, 2012 among our company, Naked Boxer Brief Clothing Inc. and SBH Acquisition Corp. (incorporated by reference from Exhibit 10.1 of our current report on Form 8-K, as filed with the Securities and Exchange Commission (“SEC”) on March 1, 2012)
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3.1
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Articles of Incorporation (incorporated by reference from our registration statement on Form SB-2, as filed with the SEC on December 8, 2006)
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3.2
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Articles of Merger (incorporated by reference from Exhibit 10.1 of our current report on Form 8-K, as filed with the SEC on August 30, 2012)
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3.3
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Certificate of Amendment to Articles of Incorporation (incorporated by reference from Exhibit 3.3 of our quarterly report on Form 10-Q, as filed with the SEC on September 15, 2014)
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3.4
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Certificate of Change effective as of August 10, 2015 (incorporated by reference from Exhibit 3.1 to our current report on Form 8-K, as filed with the SEC on August 7, 2015)
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3.5
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Certificate of Amendment to Articles of Incorporation (incorporated by reference from Exhibit 3.5 of our quarterly report on Form 10-Q, as filed with the SEC on September 14, 2016)
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3.6
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Amended Bylaws (incorporated by reference from Exhibit 3.1 to our current report on Form 8-K, as filed with the SEC on January 28, 2013)
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4.1
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|
Specimen stock certificate for common stock (incorporated by reference from Exhibit 4.1 to our registration statement on Form S-1, as filed with the SEC on September 24, 2015)
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4.2*
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Form of Preferred Stock Certificate of Designation
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4.3*
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Specimen stock certificate for shares of Preferred Stock
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|
4.4*
|
|
Form of Warrant Agreement
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4.5*
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|
Form of Warrant (to be included in Exhibit 4.4)
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4.6*
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|
Form of Subscription Rights Certificate
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4.7*
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|
Form of Stock Purchase Contract
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|
4.8*
|
|
Form of Unit Agreement
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|
5.1
|
|
Opinion of Duane Morris LLP (filed herewith)
|
|
23.1
|
|
Consent of BDO USA, LLP (filed herewith)
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|
23.2
|
|
Consent of Duane Morris LLP (included in Exhibit 5.1)
|
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24.1
|
|
Powers of Attorney (incorporated by reference to the signature page hereto).
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* To be filed by amendment or as an exhibit to a report pursuant
to Section 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934.
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