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): February 9, 2017
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.) |
10th 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) |
| x | 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 February 9, 2017, Naked Brand Group Inc. (the “Company”) and Bendon Limited (“Bendon”) entered into Amendment No. 1 (the “Amendment”) to the Letter of Intent (the “Original LOI”), dated December 19, 2016, entered into by the Company and Bendon in connection with a proposed business combination (the “Business Combination”). The Amendment (i) extends the date, from February 10, 2017 to March 10, 2017, by which the parties shall have entered into a definitive agreement regarding the Business Combination before certain penalties may be incurred; (ii) adjusts the Net Asset Amount (as defined in the Amendment) to $1.359 million, which amount will be adjusted as a result of any additional capital transactions as agreed to by the Company and Bendon, and is used to determine, in part, the extent to which the number of shares of the Company’s common stock proposed to be issued to Bendon in the Business Combination would be adjusted; and (iii) amends certain other terms and conditions of the Original LOI.
The foregoing summary of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Description |
| 10.1 | Amendment to Letter of Intent, dated February 9, 2017 |
Additional Information and Where to Find It
This communication does not constitute the solicitation of any vote or approval. The proposed Business Combination will be submitted to the stockholders of the Company for their consideration. In connection therewith, the Company intends to file relevant materials with the SEC, including a definitive proxy statement. Such documents are not currently available. Before making any voting or investment decision with respect, investors and security holders of the Company are urged to read the definitive proxy statement and the other relevant materials filed or to be filed with the SEC carefully and in their entirety when they become available because they will contain important information about the Company, Bendon and the proposed Business Combination. The definitive proxy statement and other relevant materials (when they become available), and any other documents filed by the Company with the SEC, may be obtained free of charge at the SEC web site at www.sec.gov. In addition, investors and security holders of the Company may obtain free copies of the documents filed with the SEC by the Company by directing a written request to: Naked Brand Group Inc., 95 Madison Avenue, 10th Floor, New York, New York 10016, Attention: Investor Relations.
This communication shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
Participants in the Solicitation
The Company and its directors, executive officers and certain other members of management and employees may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed Business Combination. Information regarding the participants in the proxy solicitation of the stockholders of the Company and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the definitive proxy statement regarding the proposed Business Combination and other relevant materials to be filed with the SEC by the Company when they become available. Additional information regarding the directors and executive officers of the Company is also included in the Company’s Annual Report on Form 10-K for the year ended January 31, 2016 and the proxy statement for Naked’s 2016 Annual Meeting of Stockholders. These documents are available free of charge at the SEC’s web site (www.sec.gov) and from Investor Relations at Naked at the address described above.
2
Forward-Looking Statements
Certain statements either contained in or incorporated by reference into this Current Report, other than purely historical information, including estimates, projections and statements relating to the Company’s business plans, objectives and expected operating results, and the assumptions upon which those statements are based, are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements, other than statements of historical facts, included in or incorporated by reference into this Current Report regarding strategy, future operations, future transactions, future financial position, future revenue, projected expenses, prospects, plans and objectives of management are forward-looking statements. Examples of such statements include, but are not limited to, statements relating to the structure, timing and completion of the proposed Business Combination; the Company’s continued listing on the NASDAQ Capital Market until closing of the proposed Business Combination; the combined company’s listing on the NASDAQ Capital Market after closing of the proposed Business Combination; expectations regarding the capitalization, resources and ownership structure of the combined company; the adequacy of the combined company’s capital to support its future operations; the Company’s and Bendon’s plans, objectives, expectations and intentions; the nature, strategy and focus of the combined company; the executive and board structure of the combined company; and expectations regarding voting by the Company’s stockholders. The Company and/or Bendon may not actually achieve the plans, carry out the intentions or meet the expectations disclosed in the forward-looking statements and you should not place undue reliance on these forward-looking statements. Such statements are based on management’s current expectations and involve risks and uncertainties. Actual results and performance could differ materially from those projected in the forward-looking statements as a result of many factors, including, without limitation, risks and uncertainties associated with stockholder approval of and the ability to consummate the proposed Business Combination through the process being conducted by the Company and Bendon, the ability of the Company to enter into a definitive agreement and consummate such transaction, the ability to project future cash utilization and reserves needed for contingent future liabilities and business operations, the availability of sufficient resources of the combined company to meet its business objectives and operational requirements, the ability to realize the expected synergies or savings from the proposed Business Combination in the amounts or in the timeframe anticipated, the risk that competing offers or acquisition proposals will be made, the ability to integrate Naked’s and Bendon’s businesses in a timely and cost-efficient manner, the inherent uncertainty associated with financial projections, and the potential impact of the announcement or closing of the proposed Business Combination on customer, supplier, employee and other relationships. The Company disclaims any intent or obligation to update these forward-looking statements to reflect events or circumstances that exist after the date on which they were made.
3
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/ Carole Hochman | |||
| Carole Hochman | |||
| Chief Executive Officer | |||
| Date: February 10, 2017 |
4
EXHIBIT INDEX
| Exhibit No. | Description |
| 10.1 | Amendment to Letter of Intent, dated February 9, 2017 |
5
Exhibit 10.1
Bendon Limited
8 Airpark Drive, Airport Oaks
Auckland 2022, New Zealand
February 9, 2017
Naked Brand Group Inc.
95 Madison Avenue, 10th Floor
New York, NY 10016
Re: Amendment No. 1 to Letter of Intent, Dated December 19, 2016
Gentlemen:
Bendon Limited (“Bendon”) and Naked Brand Group Inc. (“Naked”) hereby agree to amend, as set forth below, the Letter of Intent (“Letter of Intent”), dated December 19, 2016, between the parties hereto. Capitalized terms used herein that are not otherwise defined will have the same meaning as they were given in the Letter of Intent.
1. The first paragraph of Section 1 shall be replaced in its entirety with the following:
“1. Bendon and Naked will negotiate in good faith a definitive merger agreement (the “Agreement”) pursuant to which, on the closing date of the transaction contemplated by the Agreement (“Closing Date”), (i) a wholly-owned subsidiary of Naked (“Merger Sub”) would merge with and into Bendon (the “Merger”) and (ii) as consideration in the Merger, assuming Naked has 6,268,731 shares outstanding common shares outstanding (which includes the conversion of $224,000 of Notes currently outstanding into 215,385 of common shares), as adjusted for any shares issued in connection with any capital transactions which are approved by Bendon (each, a “Subsequent Capital Raise”), Naked would issue to the holders of ordinary shares of Bendon (the “Bendon Shares”) an aggregate of 118,812,163 shares of common stock of Naked (the “Naked Shares”). The Merger will be structured to be accomplished without taxation to the holders of Bendon Shares to the extent possible. Shares issued to Bendon will be subject to adjustment based on Naked having Net Assets (as defined below) of $1.395 million, as adjusted for each Subsequent Capital Raise as mutually agreed to by Naked and Bendon (the “Net Asset Amount”) (provided that if equity or options are issued to cancel all or any portion of the Hochman Obligation (as defined below), the Net Asset Amount shall increase by that same amount) and Bendon having Net Debt (as defined below) of $52.4 million as of the Closing (the “Net Debt Amount”) as follows:”
2. The fourth sentence of Section 1(a) shall be replaced in its entirety with the following:
“As soon as possible after the execution of this letter but in no event later than the February 22, 2017, Naked and Bendon will mutually agree to an operating budget (the “Budget”) for the period from the date of the Pre-merger Financing until the Closing Date.”
3. Section 6 shall be replaced in its entirety with the following:
“6. Promptly after signing the Agreement, but in any case no later than 75 calendar days, Naked shall file the preliminary proxy statement to solicit the vote of the stockholders of Naked on the approval of the issuance of the Naked Shares in the Merger, the Name Change, the Capitalization Amendment and on such other matters as may be required by applicable law or regulation or mutually agreed upon by Naked and Bendon (the “Required Stockholder Approval”). Management of Naked will agree that they and their respective affiliates (collectively, the “Naked Management Group”) will vote the shares of common stock of Naked currently controlled by them (which represents approximately 15.1% of the issued and outstanding shares of Naked, which percentage shall be adjusted upon the completion of any Subsequent Capital Raise) in favor of the foregoing items. At the time of the Pre-merger Financing (defined below), the Naked Management Group shall obtain voting agreements from holders of an additional 13.3% of the issued and outstanding shares of Naked) to vote in favor of the foregoing items. Between the time of the Pre-merger Financing to the execution of the Agreement, the Naked Management Group shall obtain voting agreements from holders of an additional 1% of the issued and outstanding shares of Naked, which percentage shall be adjusted upon the completion of any Subsequent Capital Raise, to vote in favor of the foregoing items. Notwithstanding the foregoing, at no time shall the requirement in the immediately preceding sentence require Naked to solicit voting agreements from more than a total number of ten persons. Each holder executing a voting agreement shall also agree to refrain from selling Naked Shares until the completion of the Merger. The Naked Management Group agrees to use its commercially reasonable efforts to obtain the additional votes for the Required Stockholder Approval (which may be completed through the foregoing voting agreements or other similar arrangements). Bendon and its management will agree that they and their respective affiliates will vote the shares of common stock of Naked controlled by them in favor of the foregoing items.”
4. Section 17 shall be replaced in its entirety with the following:
“17. This letter will automatically terminate and be of no further force and effect except for any provision that survives pursuant to the Agreement upon the earlier to occur of (a) the execution of the Agreement by Bendon, Naked and Merger Sub, (b) the mutual agreement of Bendon and Naked, (c) a material adverse change in the economic terms of this letter which change(s) is not the result of actions taken by the party which is acting to terminate this letter, and (d) a highly significant departure by Bendon from its business as conducted as of the date of this letter. Notwithstanding the foregoing, if the definitive agreement is not consummated by March 10, 2017 or the Closing Date does not occur within six months thereafter (each, a “Merger Milestone”), then in either case, Naked shall issue Bendon an aggregate of 2,500,000 shares of Naked common stock (as adjusted for stock splits, dividends or additional issuances after the date hereof); provided, however, that Naked shall not be required to issue Bendon such shares if Bendon’s action(s) or lack thereof has been the principal cause of or resulted in the failure of the parties to achieve a Merger Milestone. Additionally, if Naked’s common stock is delisted from trading on The Nasdaq Capital Market prior to the execution of the Agreement, this letter shall terminate and Naked shall issue Bendon an aggregate of 2,500,000 shares of Naked common stock (as adjusted for stock splits, dividends or additional issuances after the date hereof). Any shares of Naked common stock issued to Bendon as a result of termination of this letter will either be registered under a registration statement with the SEC or Naked will grant Bendon demand registration rights with respect to such shares such that Bendon can require Naked to register the resale of such shares on an appropriate registration statement at any time for up to five years from the letter’s termination.”
With the exception of the aforementioned changes, the Letter of Intent remains in full force and effect.
If the foregoing correctly sets forth our agreement, please so confirm by signing in the space indicated below.
| Very truly yours, | ||
| BENDON LIMITED | ||
| By: | /s/ Justin Davis-Rice | |
| Name: | Justin Davis-Rice | |
| Title: | Chairman | |
Accepted and confirmed:
NAKED BRAND GROUP INC.
| By: | /s/ Carole Hochman | |
| Name: | Carole Hochman | |
| Title: | Chief Financial Officer |