UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 21, 2016
Naked Brand Group Inc.
(Exact name of registrant as specified in its charter)
| Nevada | 001-37662 | 99-0369814 | ||
| (State or other | (Commission | (IRS Employer | ||
|
jurisdiction
of incorporation) |
File Number) | Identification No.) |
10 th Floor – 95 Madison Avenue, New York, NY 10016
(Address of principal executive offices) (Zip Code)
212.851.8050
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement. |
On October 21, 2016, Naked Brand Group Inc. (the “Company”) entered into a subscription agreement (the “Subscription Agreement”) with Carole Hochman, the Company’s Chief Executive Officer and Chairwoman of the board of directors (the “Investor”), pursuant to which the Investor purchased and the Company issued a convertible promissory note (the “Note”) in the initial principal amount of $112,000. The Note was issued and sold for cash at a purchase price equal to 100% of its principal amount in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and/or Rule 506 of Regulation D promulgated thereunder. The Company may, from time to time, sell additional Notes in the same series.
The Note will bear interest at a rate of 9% per annum payable upon the earliest to occur of (i) the liquidation and dissolution of the Company pursuant to a plan of complete liquidation or (ii) December 31, 2017, unless earlier converted, redeemed or repurchased. The Note constitutes a general unsubordinated obligation of the Company and is guaranteed by the Company.
In the event the Company consummates an equity financing resulting in gross proceeds to the Company of at least $1,000,000, excluding the proceeds to the Company from the purchase of the Note (a “Qualified Financing”), the entire unpaid principal amount of the Note and all accrued unpaid interest thereon (the “Outstanding Balance”) will automatically convert, at the initial closing of such financing, into equity securities issued at the price per security (the “Conversion Price”) issued in such Qualified Financing (the “Qualified Financing Securities”) and on the same terms and conditions that apply to the Qualified Financing Securities. In the event the Company consummates an equity financing that is not a Qualified Financing (a “Subsequent Financing”), then the holder of the Note may, in its sole discretion, convert the Outstanding Balance at the initial closing of such Subsequent Financing into the equity securities issued at the Conversion Price and on the same terms and conditions that apply to the securities issued in such Subsequent Financing.
In the event of a “Sale Transaction” (as defined in the Note), the Outstanding Balance will automatically convert, with no further action by the holder of the Note, into shares of the Company’s common stock at a conversion price that is equal to the enterprise value of the Company, as established by the consideration payable in the Sale Transaction, so as to permit the holder to receive the cash, securities or other property to which the holder would be entitled in the Sale Transaction on account of the holder’s ownership of the shares of common stock.
The Note is subject to customary events of default, upon the occurrence of which all payments on the Note may become immediately due.
As a condition to the issuance of any shares of common stock other securities of the Company upon conversion of the Note, the holder must become a party to such other agreements and instruments, as reasonably requested by the Company.
The foregoing description is only a summary and is qualified in its entirety by reference to the Note, a copy of which is attached as Exhibit 4.1 to this Current Report on Form 8-K.
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| Item 2.03 | Creation of a Direct Financial Obligation or an Off-Balance Sheet Arrangement |
The information provided above under Item 1.01 is incorporated by reference under this Item 2.03.
| Item 3.02 | Unregistered Sales of Equity Securities |
The information provided above under Item 1.01 is incorporated by reference under this Item 3.02.
The securities were not registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. The disclosure contained herein does not constitute an offer to sell or a solicitation of an offer to buy any securities of the Company, and is made only as permitted by Rule 135c under the Securities Act.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| 4.1* | Form of 9% Convertible Promissory Note. |
| 10.1* | Form of Subscription Agreement for 9% Convertible Promissory Note. |
* Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NAKED BRAND GROUP INC. | |||
| By: /s/ Kai-Hsiang Lin | |||
| Kai-Hsiang Lin | |||
| Vice President of Finance | |||
| Date: October 27, 2016 |
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EXHIBIT INDEX
| 4.1* | Form of 9% Convertible Promissory Note. |
| 10.1* | Form of Subscription Agreement for 9% Convertible Promissory Note. |
* Filed herewith.
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Exhibit 4.1
DM DRAFT 10/20/16
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
CONVERTIBLE PROMISSORY NOTE
| $_____________ | ______ ___, 2016 (the “Issuance Date”) |
FOR VALUE RECEIVED , NAKED BRAND GROUP INC. (the “Company”), a Nevada corporation, promises to pay to __________________________ (the “Holder”), the original principal amount of ____________ Dollars.
This Note is one of a series of Convertible Promissory Notes of like tenor issued on or after ________________, 2016 (collectively, the “Notes” and each a “Note”) by the Company. Each of the Notes rank pari passu with the other Notes in right of payment. All payments made by the Company with respect to any of the Notes shall be made pro rata to the holders of all of the Notes in accordance with the respective principal amounts outstanding thereunder.
Unless previously converted or repaid, this Note shall be payable in full upon the earliest to occur of (i) the liquidation and dissolution of the Company pursuant to a plan of complete liquidation or (ii) December 31, 2017 (the “Maturity Date”). During the 90-day period preceding the Maturity Date, the Maturity Date may be extended for an additional 12 months (with the remaining terms of this Note remaining the same) with the prior written consent of the Company and the holders of a majority of the then outstanding principal amount of the Notes (the “Requisite Holders”).
Outstanding principal under this Note shall bear interest at the rate of 9.0% per annum from the Issuance Date through the payment or conversion thereof in full. All accrued but unpaid interest shall be payable upon payment of the principal amount of this Note. The principal of and interest on this Note are payable by check mailed to the address of the Holder, as such address then appears on the record books of the Company or such other address as the Holder may designate in writing to the Company, or by wire transfer of immediately available funds to such account as the Holder may designate in writing to the Company.
This Note is subject to the following provisions, terms and conditions:
I. PREPAYMENT
A. Prepayment. This Note may be prepaid, without penalty, by the Company in whole or in part at any time without the prior written consent of the Holders.
II. CONVERSION
A. Mandatory Conversion upon Qualified Equity Financing. If, at any time while this Note shall be outstanding, the Company shall consummate an equity financing resulting in gross proceeds to the Company of at least $1,000,000, excluding the proceeds to the Company from the purchase of the Notes (a “Qualified Financing”), the entire unpaid principal amount of this Note and all accrued unpaid interest thereon (the “Outstanding Balance”) shall automatically convert at the initial closing of such Qualified Financing into the equity securities issued in such Qualified Financing (the “Qualified Financing Securities”) issued at the Conversion Price (as defined below) and on the same terms and conditions that apply to the Qualified Financing Securities.
B. Optional Conversion upon Other Equity Financing. If, at any time while this Note shall be outstanding, the Company shall consummate an equity financing that is not a Qualified Financing (each a “Subsequent Financing”), the Holder, at its sole option, may elect in writing to convert the Outstanding Balance at the initial closing of such Subsequent Financing into the equity securities issued at the Conversion Price and on the same terms and conditions that apply to the securities issued in such Subsequent Financing.
C. Mandatory Conversion upon a Sale Transaction. In the event that, at any time while this Note shall remain outstanding, a Sale Transaction (as defined below) shall occur, the Outstanding Balance on this Note immediately prior to the closing of the Sale Transaction, shall automatically convert, with no further action by the Holder, into Shares (as defined below) at a conversion price that is equal to the enterprise value of the Company, as established by the consideration payable in the Sale Transaction, so as to permit the Holder to receive the cash, securities or other property to which the Holder would be entitled in the Sale Transaction on account of the Holder’s ownership of the Shares. In such event, the Company shall take all action in connection with the Sale Transaction as may be necessary to ensure that the provisions of this Section II.C are effected in an appropriate and equitable manner, and the Holder shall execute all documents, certificates and agreements as the other holders of Shares are required to execute with respect to the Sale Transaction as a condition to the conversion of this Note pursuant to this Section II.C. As used in this Note, “Sale Transaction” means a merger or consolidation of the Company with or into any other entity in which the Company’s stockholders immediately prior to such transaction(s) receive cash, securities or other property in exchange for their securities and, immediately after such transaction(s), own less than 50% of the voting power of the surviving entity or its parent, or a sale of all or substantially all of the assets of the Company, or any other transaction or series of related transactions in which the Company’s stockholders immediately prior to such transaction(s) receive cash, securities or other property in exchange for their securities and, immediately after such transaction(s), own less than 50% of the voting power of the surviving entity or its parent. “Shares” shall mean the shares of common stock, par value $0.001 per share, of the Company.
D. Surrender of Note. As promptly as practicable after the conversion of this Note, the Holder shall surrender this Note to the Company for cancellation, whereupon the Company (or other issuer, if applicable) shall issue and deliver to the Holder a certificate representing any certificated securities issued and written evidence of the issuance of any uncertificated securities issued upon the conversion of this Note. As a condition to the issuance of any Shares or other securities of the Company upon conversion of this Note, the Holder must become a party to such other agreements and instruments, as reasonably requested by the Company.
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E. No Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall round up such fractional share to the next whole share.
F. Certain Definitions. As used in this Note, “Conversion Price” shall mean the price per security issued in a Qualified Financing or Subsequent Financing, as applicable, provided; however, that the Conversion Price shall not be less than the greater of book or market value of the common stock as of the date of this Note, as calculated in accordance with the Nasdaq Listing Rules.
III. REMEDIES OF HOLDER IN EVENT OF DEFAULT
A. Events of Default Defined. Any of the following that shall occur and be continuing for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of law or otherwise) shall constitute an event of default (each an “Event of Default”):
1. any default occurs in the payment of any principal of or accrued interest on this Note when due and such failure continues uncured for at least 10 days after written notice thereof is received by the Company from the Requisite Holders; or
2. the Company shall fail to perform or observe any covenant or agreement set forth in this Note, other than a failure to pay which is covered in Section IIIA.1, in any material respect and such failure continues uncured for at least 20 days after written notice thereof is received by the Company from the Requisite Holders; or
3. if an order, judgment or decree is entered adjudicating the Company bankrupt or insolvent; or if the Company shall commence any case, proceeding or other action relating to it in bankruptcy or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts, or for any other relief, under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or if the Company shall apply for a receiver, custodian or trustee of it or for all or a substantial part of its property; or
4. if any case, proceeding or other action against the Company shall be commenced in bankruptcy or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts, or any other relief, under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or if a receiver, custodian or trustee of the Company or for all or a substantial part of its properties shall be appointed; or if a warrant of attachment, execution or distraint, or similar process, shall be issued against any substantial part of the property of the Company; and if, in each such case, such condition shall continue for a period of 90 days undismissed, undischarged or unbonded.
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B. Remedies. When any Event of Default described in Section III.A has occurred, then the Requisite Holders may, by notice in writing sent by registered or certified mail to the Company, declare the entire principal amount and all interest accrued and unpaid on this Note to be, and this Note and all other Notes shall thereupon become, forthwith due and payable, without any presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived. No course of dealing on the part of the Holder or the Requisite Holders nor any delay or failure on the part of the Holder or the Requisite Holders to exercise any right shall operate as a waiver of such right or otherwise prejudice such Holder’s rights, powers and remedies. The Holder shall not, absent the approval of the Requisite Holders, be entitled to invoke the acceleration remedy set forth in this Section III.B.
IV. AMENDMENTS, WAIVERS AND CONSENTS
A. Amendment and Waiver. Any provision of the Notes, including this Note, may be amended, modified or supplemented, and waivers or consents to departures from the provisions of the Notes may be given, if the Company and the Requisite Holders consent thereto. Such consent may be effected by any available legal means, including without limitation at a special or regular meeting, by written consent or otherwise. Notwithstanding anything to the contrary set forth herein, any provision of this Note may also be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may be given, the result of which shall not materially or adversely affect any other holder of the Notes, upon the written agreement of the Company and the Holder.
B. Effect of Amendment or Waiver. Any amendment, modification, supplement or waiver effected in accordance with Section IV.A shall apply to and be binding upon the Holder, upon each future holder of this Note and upon the Company, whether or not this Note shall have been marked to indicate such amendment, modification, supplement or waiver. No such amendment, modification, supplement or waiver shall extend to or affect any obligation not expressly amended, modified, supplemented or waived or impair any right consequent thereon.
V. TRANSFER; LOSS OR THEFT; ETC.
A. Transfer Restrictions . Neither this Note, nor any of the Holder’s rights hereunder, may be transferred (by operation of law, voluntarily, involuntarily or otherwise) by the Holder without the Company’s prior written consent.
B. Instruments of Transfer . Subject to Section V.A, this Note, if presented or surrendered for exchange or transfer, shall, if so required by the Company, be accompanied by a written instrument or instruments of transfer and investment representations, in form satisfactory to the Company, duly executed by the registered Holder.
C. Loss; Replacement . Upon receipt of evidence satisfactory to the Company, in its sole discretion, of the loss, theft, mutilation or destruction of this Note, and in the case of such loss, theft or destruction upon delivery of a bond of indemnity in such form and amount as shall be reasonably satisfactory to the Company, or in the event of such mutilation upon surrender and cancellation of this Note, the Company shall make and deliver without expense to the Holder thereof, a new Note, of like tenor, in lieu of such lost, stolen, destroyed or mutilated Note. At the discretion of the Company, the Company may accept in lieu of a bond of indemnity, the affidavit of the Holder that sets forth the fact of loss, theft or destruction and of the Holder’s ownership of this Note at the time of such loss, theft or destruction as satisfactory evidence thereof and no further indemnity shall be required as a condition to the execution and delivery of a new Note other than the written agreement of such owner to indemnify the Company.
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D. Person Deemed Owner. Subject to Section V.A, prior to due presentation of this Note for registration of transfer, the Company may deem and treat the Holder of record of this Note on the books of the Company as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon) for the purpose of receiving payment of or on account of the principal thereof and interest due thereon and for all other purposes, and the Company shall not be affected by any notice to the contrary.
VI. MISCELLANEOUS
A. Section and Other Headings. The section and other headings contained in this Note are for reference purposes only and shall not affect the meaning or interpretation of this Note.
B. Notice. All notices given hereunder shall be in writing and shall be delivered in person or duly sent by mail, postage prepaid; by an overnight delivery service, charges prepaid; or by confirmed telecopy.
C. Governing Law. This Note shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to principles of conflicts of law. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Note (whether brought against a party hereto or its respective affiliates, directors, officers, stockholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding
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D. Usury Limitation . In no event shall the amount paid or agreed to be paid to the Holder of this Note for the use or forbearance of money to be advanced hereunder exceed the highest lawful rate permissible under the then applicable usury laws. If it is hereafter determined by a court of competent jurisdiction that the interest payable hereunder is in excess of the amount that the Holder of this Note may legally collect under the then applicable usury laws, such amount that would be excessive interest shall be applied to the payment of the unpaid principal balance due hereunder and not to the payment of interest or, if all principal shall previously have been paid, promptly repaid by the Holder of this Note to the Company.
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IN WITNESS WHEREOF , the Company has caused this Note to be signed by a duly authorized officer as of the day and year first above written.
| NAKED BRAND GROUP INC. | ||
| Name: | ||
| Title: |
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Exhibit 10.1
DM DRAFT 10/20/16
SUBSCRIPTION AGREEMENT
Naked Brand Group Inc.
| Attention: |
Carole Hochman,
Chief Executive Officer |
Ladies and Gentlemen:
The undersigned (referred to herein as the “undersigned,” or the “Subscriber”) acknowledges having reviewed this Subscription Agreement (this “Agreement”) relating to the offering (the “Offering”) by Naked Brand Group Inc. (the “Company”) of of convertible promissory notes (the “Notes”). The undersigned further acknowledges having reviewed the Form of Note attached to this Subscription Agreement as Exhibit A. The undersigned understands that the minimum purchase is $50,000 principal amount of Notes, unless waived by the Company.
1. Subscription. The undersigned hereby irrevocably subscribes for the purchase of a Note in the principal amount of $____________.
2. Tender of Purchase Price. In payment of the purchase price for the Note, the undersigned has delivered the amount set forth in Section 1 by either (i) forwarding a check in the amount set forth in Section 1, payable to “Naked Brand Group Inc.” or (ii) wire transfer of immediately available funds in U.S. currency to an account designated by the Company.
3. Acceptance of Subscription. The undersigned understands and agrees that this subscription is made subject to the condition that the Note to be issued and delivered on account of this subscription will be issued only in the names of and delivered only to the address designated by the undersigned.
4. Other Agreements. The undersigned further understands that, as a condition to the conversion of the Note, the undersigned will be required to enter into such agreements and instruments as the Company may reasonably request in connection with the conversion of the Note.
5. Representations and Warranties of the Undersigned. The undersigned understands that the Note is being offered and sold under exemptions from registration under the Securities Act of 1933, as amended (the “Act”) and offering exemptions contained in the securities laws of other jurisdictions; that the undersigned are purchasing the Note without being furnished any offering literature or prospectus other than this Agreement attached hereto, and the accompanying Note; that the Offering has not been examined by the United States Securities and Exchange Commission or by any administrative agency charged with the administration of the securities laws of any other jurisdiction; and that all documents, records and books pertaining to this investment requested by the undersigned have been made available by the Company to the undersigned and the undersigned’s representatives, including the attorneys, accountants and/or purchaser representatives of the undersigned. The undersigned hereby further represents and warrants as follows:
(a) The undersigned is a natural person and is an “accredited investor” as defined in Regulation D under the Act and satisfies at least one of the categories of accredited investors set forth in Rule 501(a) of Regulation D. [ If the undersigned is not a natural person, please complete Annex A ]
| ☐ | has an individual net worth (determined by subtracting total liabilities from total assets), or joint net worth with such person’s spouse, in excess of $1,000,000 (excluding such person's primary residence and indebtedness thereon up to the gross value of such residence, except that if the amount of such indebtedness outstanding at the time of the purchase of the Note exceeds the amount of such indebtedness outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability in the determination of such person's net worth); or |
| ☐ | had an individual income in excess of $200,000 (or a joint income together with such person’s spouse in excess of $300,000) in the two most recently completed calendar years, and reasonably expects to have an individual income in excess of $200,000 (or a joint income together with such person’s spouse in excess of $300,000) in the current calendar year. |
(b) The undersigned has, or the undersigned and the undersigned’s purchaser representative (if any) together have, such knowledge and experience in financial and business matters and the undersigned is, or the undersigned and any purchaser representative together are, capable of evaluating the merits and risks of an investment in the Note and any securities acquired upon the conversion of the Note (the “Securities”) and of making an informed investment decision.
(c) The undersigned understands that an investment in the Company is speculative in nature, involves a high degree of risk and is suitable only for persons of substantial means who have no need for liquidity in their investment.
(d) The undersigned understands and has fully considered for purposes of this investment that there are substantial restrictions on the transferability of the Note and any Securities and that there will be no public market for the Note or the Securities (to the extent the securities are not shares of the Company’s common stock), and, accordingly, it probably will not be possible for the undersigned to liquidate the undersigned’s investment in the Note or the Securities (to the extent the securities are not shares of the Company’s common stock) in the case of an emergency or to use the Note or the Securities (to the extent the securities are not shares of the Company’s common stock) as collateral for a loan.
(e) The undersigned confirms that the undersigned (i) is able to bear the economic risk of an investment in the Note and any Securities, (ii) is able to hold the Note and/or the Securities for an indefinite period of time, (iii) is able to afford a complete loss of the undersigned’s investment and (iv) has adequate means of providing for the undersigned’s current needs and possible personal contingencies and has no need for liquidity in this investment.
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(f) The undersigned confirms that, in making the decision to purchase the Note, each such undersigned and the undersigned’s purchaser’s representatives have been given the opportunity to ask questions of and to receive answers from the Company concerning the Note and the Company.
(g) The Note is being acquired by the undersigned in good faith solely for the undersigned’s own personal account for investment purposes only and are not being purchased with a view to or for resale, distribution, subdivision or fractionalization thereof; the undersigned has no contract, understanding, undertaking, agreement or arrangement, formal or informal, with any person to sell, transfer or pledge to any person the Note or any part thereof; the undersigned has no current plans to enter into any such contract, undertaking, agreement, understanding or arrangement; and the undersigned understands that the legal consequences of the foregoing representations and warranties are that the undersigned must bear the economic risk of an investment in the Note and any Securities for an indefinite period of time because the Note and the Securities have not been registered under the Act and therefore cannot be sold in the United States unless they are subsequently registered under the Act (which the Company is not obligated to do and has no current intention of doing) or an exemption from such registration is available under the Act. The undersigned further agrees not to engage in any hedging transactions with regard to the Note or the Securities unless in compliance with the Act.
(h) The information set forth in this Agreement regarding the undersigned is true, correct and complete.
The foregoing representations, warranties and undertakings are made by the undersigned with the intent that they be relied upon in determining the undersigned’s suitability as investors in the Company, and the undersigned hereby agrees that such representations and warranties shall survive the undersigned’s purchase of the Note. If more than one person is signing this Agreement, each representation, warranty and undertaking made herein shall be a joint and several representation, warranty or undertaking of each such person. For any undersigned partnership, corporation, trust or other entity, the undersigned have enclosed with this Agreement appropriate evidence of the authority of the individual executing this Agreement to act on behalf of the undersigned.
6. Other Documents. In connection with the execution and delivery of this Agreement and the purchase of the Note, the undersigned acknowledges having reviewed the Company’s filings made with the United States Securities and Exchange Commission and any other materials provided by the Company to them.
7. Transferability. The undersigned agrees not to transfer or assign this Agreement or any interest herein and further agrees that assignment and transfer of the Note and/or any Securities shall be effected only in accordance with this Agreement, the Note and all applicable laws.
8. Revocation. The undersigned may not cancel, terminate or revoke this Agreement or any agreement of the undersigned made hereunder and this Agreement shall be legally binding upon any heirs, executors, administrators, successors and assigns of the undersigned.
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9. No Waiver of Rights. Notwithstanding any of the representations, warranties, acknowledgments or agreements made herein by the undersigned, the undersigned do not thereby or in any other manner waive any rights granted to the undersigned under the applicable federal or state securities laws.
10. Indemnification. The undersigned understands the meaning of the representations made by the undersigned in this Agreement and hereby agrees to indemnify the Company and all persons deemed to be in control of the Company from and against any and all loss, costs, expenses, damages and liabilities (including, without limitation, court costs and attorneys’ fees) arising out of or due to a breach of any such representation or warranty. All such representations shall survive the delivery of this Agreement and the purchase by the undersigned of the Note.
11. Miscellaneous.
(a) All notices given hereunder shall be in writing and shall be delivered in person or duly sent by mail, postage prepaid or by an overnight delivery service, charges prepaid. Notice shall be provided to the Company at its corporate headquarters and to the undersigned at the address designated on the signature page; or to such other address as a party may designate to the other in writing.
(b) This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(c) In interpreting this Agreement, pronouns of masculine, feminine, or neuter gender, shall be deemed to include by implication the other genders and, where the context allows, references in the singular will be deemed to include the plural and references in the plural will be deemed to include the singular.
(d) This Agreement and, upon issuance, the Note constitute the entire agreement among the parties hereto with respect to the subject matter hereof and may be amended only by a writing executed by the parties or, in the case of the Note, as provided in the Note.
(e) Facsimile or other electronic copies, such as .pdf files delivered by electronic mail, of signatures shall constitute original signatures for all purposes of this Agreement and any enforcement hereof.
(Signature page follows.)
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has executed this Agreement as of the date set forth below.
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Corporations, Trusts, Partnerships, Limited Liability Companies, Retirement Plans, Retirement Accounts or Other Entities Sign Below:
____________________________________ (Print Name of Entity)
By:_________________________________ (Signature)
Name:_______________________________ Title:________________________________
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Individuals Sign Below:
____________________________________ Signature
____________________________________ Name (please print)
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Signature (if more than one subscriber)
____________________________________
Name (please print)
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Subscriber Address :
________________________________ ________________________________ ________________________________ ________________________________
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Date: ____________________, 2016
| NOTE TO SUBSCRIBER: | PLEASE INSERT THE AMOUNT OF THE NOTE IN SECTION 1 (ON PAGE 1) AND CHECK AT LEAST ONE OF THE BOXES IN SECTION 5(a) (ON PAGE 2 IF AN INDIVIDUAL or ANNEX A IF AN ENTITY ) |
ACCEPTANCE BY THE COMPANY
1. Acceptance. The subscription made pursuant to the Subscription Agreement to which this Acceptance is attached is hereby accepted by the Company.
2. Representations and Warranties of the Company. The Company hereby represents and warrants to the subscriber as follows:
(a) The consummation by the Company of the Offering and the execution, delivery and performance by the Company of the Note have been duly authorized by all necessary action on the part of the Company. This Acknowledgment has been, and the Note will be, duly and validly executed and delivered by the Company, and constitutes and will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by laws of general application relating to bankruptcy, insolvency and relief of debtors or (ii) as limited by rules of law governing specific performance, injunctive relief or other equitable remedies and by general principles of equity.
(b) The Company has all requisite power and authority to consummate the Offering, and to issue and sell the Notes.
(c) The Company is duly organized, validly existing and in good standing under the laws of the State of Nevada.
(d) The execution, delivery and performance by the Company of this Acknowledgment, and the consummation by the Company of the Offering, does not and will not, with or without the giving of notice or the lapse of time or both, (i) violate any provision of law, rule, or regulation to which the Company is subject, (ii) violate any judgment, injunction, decree, order, writ, ruling or award of any governmental authority of competent jurisdiction applicable to the Company, (iii) violate or result in a breach of or constitute a default (or an event that might, with the passage of time or the giving of notice, or both, constitute a default) under, or require the consent of any person under, or result in or permit the termination or amendment of any provision of, or result in or permit the acceleration of the maturity or cancellation of performance of any obligation under, any agreement, contract or commitment by which the Company is bound or (iv) violate any provision of the Articles of Incorporation of the Company.
(e) Subject in part to the truth and accuracy of the subscriber’s representations and warranties set forth in the Subscription Agreement, the offer, sale and issuance of the Note and the securities are exempt from the registration requirements of the Securities Act, and applicable blue sky laws.
3. Indemnification. The Company hereby agrees to indemnify the subscriber and all persons deemed to be in control of the subscriber from and against any and all loss, costs, expenses, damages and liabilities (including, without limitation, court costs and attorneys’ fees) arising out of or due to a breach by the Company of any of its representations or warranties set forth in Section 2. All such representations and warranties shall survive the delivery of this Acceptance and the purchase by the subscriber of the Note
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IN WITNESS WHEREOF, the Company, intending to be legally bound hereby, has executed this Acceptance as of the date set forth below.
| NAKED BRAND GROUP INC. | |||||
| Date: | , 2016 | By: | |||
| Name: | |||||
| Title: | |||||
Annex A
For Corporations, Trusts, Partnerships, Limited Liability Companies, Self-Directed Retirement Plans, Individual Retirement Accounts or other entities, check one or more of the following boxes:
☐ A corporation, Massachusetts or similar business trust or partnership, not formed for the specific purpose of acquiring the Securities, with total assets in excess of $5,000,000.
☐ A bank or savings and loan association, whether acting in its individual or fiduciary capacity.
☐ A broker or dealer registered pursuant to the Securities Exchange Act of 1934.
☐ An insurance company.
☐ An investment company registered under the Investment Company Act of 1940.
☐ A business development company as defined in the Investment Company Act of 1940.
☐ A small business investment company licensed by the U.S. Small Business Administration.
☐ A private business development company as defined in the Investment Advisers Act of 1940.
☐ A tax exempt organization as defined in Section 501(c)(3) of the Internal Revenue Code, nor formed for the specific purpose of acquiring the Securities, with total assets in excess of $5,000,000.
☐ Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a person who, alone or with his purchaser representative, has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment.
☐ Any entity in which all of the equity owners are “accredited investors” under the criteria above ( in which case all such equity owners must complete a Confidential Purchaser Questionnaire ).
EXHIBIT A
FORM OF NOTE
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