Securities Registration (foreign Private Issuer) (f-3/a)
January 06 2020 - 5:17PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on January 6, 2020
Registration
No. 333-235801
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 1 to
FORM
F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
NAKED
BRAND GROUP LIMITED
(Exact
name of Registrant as specified in its charter)
N/A
(Translation
of Registrant’s name into English)
Australia
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N/A
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(State
or other jurisdiction of
Incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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c/o
Bendon Limited
Building
7C, Huntley Street
Alexandria
NSW
2015, Australia
+61
2 9384 2400
(Address
and telephone number of Registrant’s principal executive offices)
Justin
Davis-Rice, Executive Chairman
c/o
Bendon Limited
Building
7C, Huntley Street
Alexandria
NSW
2015, Australia
+61
2 9384 2400
(Name,
address, and telephone number of agent for service)
Copies
to:
David
Alan Miller, Esq.
Jeffrey
M. Gallant, Esq.
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue
New
York, New York 10174
Telephone:
(212) 818-8800
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Matthew
Nelson, Esq.
HWL
Ebsworth Lawyers
Level
14, Australia Square
264-278
George Street
Sydney,
Australia
Telephone:
+61 2 9334 8555
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Approximate
date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If
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, check the following box. [X]
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.C. 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.C. 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 an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company [X]
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised accounting standards provided
to Section 7(a)(2)(B) of the Securities Act. [ ]
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
Amendment No. 1 to the Registration Statement on Form F-3 (File No. 333-235801) of Naked Brand Group Limited (“Registration
Statement”) is being filed solely for the purpose of filing certain exhibits as indicated in Part II of this Amendment No.
1. This Amendment No. 1 does not modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly,
a preliminary prospectus has been omitted.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
8. Indemnification of Directors and Officers.
We
must indemnify current and past directors and other executive officers of the Company on a full indemnity basis and to the fullest
extent permitted by law against all liabilities incurred by the director or officer as a result of their holding office in the
Company or a related body corporate.
We
may also, to the extent permitted by law, purchase and maintain insurance, or pay or agree to pay a premium for insurance, for
each director and officer against any liability incurred by the director or officer as a result of their holding office in the
Company or a related body corporate.
Under
the Corporations Act, a company or a related body corporate must not indemnify a person against any liabilities incurred as an
officer or auditor of the company if it is a liability:
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(a)
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owed
to the company or a related body corporate;
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(b)
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for
a pecuniary penalty or compensation order made in accordance with the Corporations Act; or
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(c)
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that
is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith.
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In
addition, a company or related body corporate must not indemnify a person against legal costs incurred in defending an action
for a liability incurred as an officer or auditor of the company if the costs are incurred in:
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(a)
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defending
or resisting proceedings in which the person is found to have a liability of the type described above;
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(b)
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in
defending or resisting criminal proceedings in which the person is found guilty;
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(c)
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in
defending or resisting proceedings brought by the Australian corporate regulator or a liquidator for a court order if the
grounds for making the order are found to have been established; or
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(d)
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in
connection with proceedings for relief to the person under the Corporations Act in which the Court denies the relief.
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Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling
us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
Item
9. Exhibits.
The
exhibits filed herewith or incorporated by reference herein are listed in the Exhibit Index below.
Item
10. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
Registration Statement; and
(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 (i), (ii) and (iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC 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 this registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each 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)
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of
Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary
to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Act or Item 8.A of Form 20-F if such financial statements and information
are contained in periodic reports filed with or furnished to the Commission pursuant to section 13 or section 15(d) of the Exchange
Act that are incorporated by reference in the Form F-3.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule
430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to the date of first
use.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h)
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, that 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, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form F-3 and has duly caused this amendment no. 1 to registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sydney, Australia, on the 6th
day of January, 2020.
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NAKED
BRAND GROUP LIMITED
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By:
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/s/
Justin Davis-Rice
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Justin
Davis-Rice
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Executive
Chairman
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Pursuant
to the requirements of the Securities Act of 1933, this amendment no. 1 to registration statement has been signed by the
following persons in the capacities and on the dates indicated.
Name
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Title
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Date
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/s/
Justin Davis-Rice
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Executive
Chairman and Director (Principal Executive Officer)
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January
6, 2020
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Justin
Davis-Rice
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/s/
David Adams
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Interim
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
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January
6, 2020
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David
Adams
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*
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Director
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January
6, 2020
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Paul
Hayes
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*
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Director
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January
6, 2020
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Andrew
Shape
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*
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Director
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January
6, 2020
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Kelvin
Fitzalan
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*By:
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/s/
Justin Davis-Rice
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Justin
Davis-Rice
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Attorney-in-fact
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Authorized
Representative in the United States
GRAUBARD
MILLER
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By:
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/s/
Jeffrey M. Gallant
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Name:
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Jeffrey
M. Gallant
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Title:
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Partner
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Date:
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January
6, 2020
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EXHIBIT
INDEX
Exhibit
No.
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Description
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3.1
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Constitution
of Naked Brand Group Limited (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form F-4/A, File No.
333-223786, filed with the SEC on April 11, 2018).
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4.1
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Specimen
Ordinary Share Certificate (incorporated by reference to Exhibit 4.1 filed with the Company’s Registration Statement
on Form F-4/A, File No. 333-223786, filed with the SEC on April 11, 2018).
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4.2
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Convertible
Promissory Note dated as of October 4, 2019 (incorporated by reference to Exhibit 4.1 to the Company’s Form 6-K filed
on October 9, 2019).
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4.3
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Convertible
Promissory Note dated as of November 12, 2019 (incorporated by reference to Exhibit 4.1 to the Company’s Form 6-K filed
on November 15, 2019).
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4.4
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Warrant to Purchase Ordinary Shares dated as of November 12, 2019 (incorporated by reference to Exhibit 4.2 to the Company’s Form 6-K filed on November 15, 2019).
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4.5
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Convertible
Promissory Note dated as of December 19, 2019 (incorporated by reference to Exhibit 4.1 to the Company’s Form 6-K filed
on December 20, 2019).
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4.6
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Warrant to Purchase Ordinary Shares dated as of December 19, 2019 (incorporated by reference to Exhibit 4.2 to the Company’s Form 6-K filed on December 20, 2019).
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10.1
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Securities
Purchase Agreement, dated as of October 4, 2019, by and between Naked Brand Group Limited and Iliad Research and Trading,
L.P. incorporated by reference to Exhibit 10.1 to the Company’s Form 6-K filed on October 9, 2019).
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10.2
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Deed
of Subordination, dated as of October 4, 2019, by and among Naked Brand Group Limited, Bank of New Zealand and Iliad Research
and Trading, L.P. (incorporated by reference to Exhibit 10.2 to the Company’s Form 6-K filed on October 9, 2019).
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10.3
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Securities
Purchase Agreement, dated as of November 12, 2019, by and between Naked Brand Group Limited and Iliad Research and Trading,
L.P. (incorporated by reference to Exhibit 10.1 to the Company’s Form 6-K filed on November 15, 2019).
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10.4
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Deed
of Subordination, dated as of November 12, 2019, by and among Naked Brand Group Limited, Bank of New Zealand and Iliad Research
and Trading, L.P. (incorporated by reference to Exhibit 10.2 to the Company’s Form 6-K filed on November 15, 2019).
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10.5
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Securities
Purchase Agreement, dated as of December 19, 2019, by and between Naked Brand Group Limited and St. George Investments LLC
(incorporated by reference to Exhibit 10.1 to the Company’s Form 6-K filed on December 20, 2019).
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10.6
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Deed
of Subordination, dated as of December 19, 2019, by and among Naked Brand Group Limited, Bank of New Zealand and St. George
Investments LLC (incorporated by reference to Exhibit 10.2 to the Company’s Form 6-K filed on December 20, 2019).
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5.1*
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Opinion
of HWL Ebsworth Lawyers.
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23.1**
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Consent of BDO Audit Pty Ltd.
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23.2*
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Consent of PricewaterhouseCoopers.
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23.3*
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Consent
of HWL Ebsworth Lawyers (included in Exhibit 5.1).
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24.1**
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Power of attorney (included on signature page to original filing of registration statement).
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*
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Filed
herewith.
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**
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Previously
filed.
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