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) April 23, 2018

 

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.)  

 

180 Madison Avenue, Suite 1505, New York, New York, 10016

(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code 212.851.8050

 

N/A

(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):

 

x 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))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

On April 23, 2018, Naked Brand Group, Inc. (“Naked”) entered into Amendment No. 4 (the “Amendment”) to Agreement and Plan of Reorganization, dated May 25, 2017, as amended (the “Merger Agreement”), by and among Bendon Limited, a New Zealand limited company (“Bendon”), Bendon Group Holdings Limited, an Australia limited company (“Holdco”), Naked Merger Sub Inc., a Nevada corporation and a wholly owned subsidiary of Holdco, and, solely for the purposes of Sections 2.28 and 5.18(b) of the Merger Agreement, Bendon Investments Ltd., a New Zealand company and the owner of a majority of the outstanding shares of Bendon. Capitalized terms used herein but not defined herein shall have the meanings assigned to such terms in the Merger Agreement.

 

The Amendment amended the Merger Agreement to reflect, among other things, the following:

 

· The adjustment of the number of Holdco Ordinary Shares issuable to the shareholders of Bendon in the Reorganization will be calculated based upon Naked’s Net Assets and Bendon’s Net Debt as of the Closing instead of as of the date on which the Securities and Exchange Commission informs Holdco that it has no further comments on the Registration Statement. In addition, Naked will deliver the Estimated Naked Net Assets Statement and Bendon will deliver the Estimated Bendon Net Debt Statement at least five Business Days prior to the Closing Date. The adjustment of the number of Holdco Ordinary Shares issuable to the shareholders of Bendon in the Reorganization will be subject to a post-Closing true-up based on Naked’s actual Net Assets and Bendon’s actual Net Debt each as of the Closing Date.
· Upon the consummation of the Reorganization, 22,680,527 Holdco Ordinary Shares will be outstanding, subject to adjustment as provided in the Reorganization Agreement in accordance with the Merger Agreement.
· The total number of shares constituting the Merger Consideration for Naked Common Stock shall not be less than 8.35% (instead of 9.0%) of the total number of Holdco Ordinary Shares issued and outstanding immediately following the Closing, subject to adjustment of the Bendon Target Share Number.
· Changes in Naked’s Net Asset Amount from $5,400,000 to $3,500,000 (subject to adjustment as per the definition of Net Asset Amount) and in Bendon’s Net Debt Amount from $2,100,000 to $(8,500,000).
· The extension of the Outside Date to June 1, 2018, subject to certain events that may extend such date to a date no later than June 11, 2018 and the extension of the date by which Bendon may deliver an Outside Date Breach Notice to May 22, 2018.

 

The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment attached hereto as Exhibit 2.1, which is incorporated by reference herein.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit

No.

  Description
     
2.1   Amendment No. 4 to Agreement and Plan of Reorganization, dated April 23, 2018.

 

 

Additional Information and Where to Find It

 

In connection with proposed transactions contemplated by the Merger Agreement (the “Business Combination”), on March 19, 2018, Holdco filed a Registration Statement on Form F-4, as amended (the “Registration Statement”), with the Securities and Exchange Commission (the “SEC”). The Registration Statement, which is not yet effective, includes a preliminary proxy statement/prospectus that is both the preliminary proxy statement to be distributed to holders of the Naked’s common stock in connection with the solicitation by Naked of proxies for the vote by the stockholders on the Business Combination and a preliminary prospectus to be delivered by Holdco in connection with the distribution of its securities to such holders. This material is not a substitute for the final proxy statement/prospectus regarding the proposed Business Combination. The final proxy statement/prospectus will be mailed to stockholders of Naked as of April 17, 2018 for voting on the proposed Business Combination. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE BUSINESS COMBINATION, INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE FINAL PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT MATERIALS THAT WILL BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT NAKED, BENDON AND HOLDCO AND THE PROPOSED BUSINESS COMBINATION. Stockholders will also be able to obtain copies of the Registration Statement which includes the proxy statement/prospectus and other relevant materials containing important information about Naked, Bendon and Holdco, without charge at the SEC’s Internet site at http://www.sec.gov or by directing a request to: Naked Brand Group Inc., 180 Madison Avenue, Suite 1505, New York, New York, 10016, Attention: Investor Relations; and/or on Bendon’s website at www.bendongroup.com or by directing a written request to Bendon Limited, 8 Airpark Drive, Airport Oaks, Auckland 2022, New Zealand or by emailing lucy.martyn@bendon.com.

 

 

 

 

Participants in the Solicitation

 

This is not a solicitation of a proxy from any investor or security holder. Naked and its directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of Naked’s stockholders in connection with the proposed Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the proposed Business Combination of Naked’s directors and officers in Naked’s filings with the SEC. Additional information regarding the directors and executive officers of Naked is also included in Naked’s Annual Report on Form 10-K for the year ended January 31, 2017. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Naked’s shareholders in connection with the proposed Business Combination will be set forth in the definitive proxy statement/prospectus for the proposed Business Combination when available. This document will be available free of charge at the SEC’s web site (www.sec.gov) and from Naked’s Investor Relations department at the address described above.

 

No Offer or Solicitation

 

This Current Report on Form 8-K shall neither constitute 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 the offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction.

 

Forward-Looking Statements

 

Certain statements either contained in or incorporated by reference into this Current Report on Form 8-K, other than purely historical information, including estimates, projections and statements relating to Naked’s or Bendon’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 communication 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 regarding: Holdco’s anticipated listing on the Nasdaq Capital Market in connection with the closing of the proposed business combination; the public filing and effectiveness of the proxy statement/prospectus; and the completion of the proposed Business Combination; expectations regarding the capitalization, resources and ownership structure of Holdco; the adequacy of Holdco’s capital to support its future operations; Naked’s and Bendon’s plans, objectives, expectations and intentions; the nature, strategy and focus of the combined company; the executive and board structure of Holdco; and expectations regarding voting by Naked’s stockholders. Naked, Bendon and/or Holdco 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 the ability of Naked, Holdco and Bendon to consummate the transaction contemplated by the Merger Agreement, the risk that one or more of the conditions to closing contained in the Merger Agreement may not be satisfied, including, without limitation, the receipt of stockholder approval of the Naked stockholders, the effectiveness of the Registration Statement or the listing of Holdco’s ordinary shares on the Nasdaq Capital Market, the risk that the parties may otherwise be unable to consummate the proposed Business Combination, and the risk that competing offers or acquisition proposals will be made. Naked, Bendon and Holdco disclaim 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.

 

 

 

 

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: April 23, 2018

 

 

 

 

 

 

 

Exhibit 2.1

Annex A-5

AMENDMENT NO. 4 TO
AGREEMENT AND PLAN OF REORGANIZATION

This AMENDMENT NO. 4 TO AGREEMENT AND PLAN OF REORGANIZATION (this “Amendment No. 4”) is entered into as of April 23, 2018, by and among Naked Brand Group Inc. (“Naked”), Bendon Limited (“Bendon”), Bendon Group Holdings Limited (“Holdco”), Naked Merger Sub Inc. (“Merger Sub”) and Bendon Investments Limited (“Principal Shareholder”). Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Merger Agreement (as defined below).

WHEREAS , the parties entered into that certain Agreement and Plan of Reorganization dated as of May 25, 2017, Amendment No. 1 thereto as of July 26, 2017, Amendment No. 2 thereto as of February 21, 2018 and Amendment No. 3 thereto as of March 19, 2018 (as amended, the “Merger Agreement”), providing for the Merger; and

WHEREAS , in accordance with Section 9.10 of the Merger Agreement, the parties wish to amend certain terms and provisions of the Merger Agreement.

NOW , THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Section 1.5(b) of the Merger Agreement is hereby amended by replacing the reference to “9.0%” with “8.35%”.

2. Section 1.5(b) of the Merger Agreement is hereby amended by replacing it in its entirety with the following:

“(b) Adjustment to Bendon Target Share Number .

(i) At least five (5) Business Days prior to the Closing Date, (A) Naked shall prepare in good faith and deliver to Bendon a statement (the “ Estimated Naked Net Assets Statement ”) showing, in reasonable detail, the calculation of Naked’s estimated Net Assets as of the Closing Date (the “ Estimated Naked Closing Net Assets ”) and (B) Bendon shall prepare in good faith and deliver to Naked a statement (the “ Estimated Bendon Net Debt Statement ”) showing, in reasonable detail, the calculation of Bendon’s estimated Net Debt as of the Closing Date (the “ Estimated Bendon Closing Net Debt ”). The Estimated Naked Net Assets Statement and the Estimated Bendon Net Debt Statement shall be derived utilizing United States generally accepted accounting principles (“ U.S. GAAP ”) and the international financial reporting standards (“ IFRS ”), respectively, consistent with the historical practice of Naked and Bendon, respectively.

(A) In the event Estimated Naked Closing Net Assets as reflected in the Estimated Naked Net Assets Statement are less than the Net Asset Amount (such difference, the “ Net Asset Shortfall Amount ”), then the number of Holdco Ordinary Shares that would have been issuable to the shareholders of Bendon pursuant to the Reorganization Agreement (as defined in Section 5.18) without any adjustment pursuant to this Agreement (the “ Bendon Target Share Number ”) shall be increased by a number equal to the product obtained by multiplying (i) the Net Asset Shortfall Amount and (ii) 2.327. In the event Estimated Naked Closing Net Assets as reflected in the Estimated Naked Net Assets Statement are greater than the Net Asset Amount (such difference, the “ Net Asset Excess Amount ”), then the Bendon Target Share Number shall be reduced by a number equal to the product obtained by multiplying (i) the Net Asset Excess Amount and (ii) 2.327. Notwithstanding the foregoing, no adjustment shall be made to the Bendon Target Share Number pursuant to this Section 1.5(b)(i)(A) unless the Net Asset Shortfall Amount or Net Asset Excess Amount is greater than $150,000. The parties acknowledge and agree that, notwithstanding anything to the contrary, so long as Naked does not incur any expenditures that in the aggregate exceed any line item in the Budget by more than 10%, unless otherwise agreed

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to by the Budget Committee, the Net Assets Shortfall Amount or Net Assets Excess Amount, as applicable, shall be deemed to be less than $150,000 and no adjustment shall be made to the Bendon Target Share Number pursuant to this Section 1.5(b)(i)(A).

(B) In the event Estimated Bendon Closing Net Debt as reflected in the Estimated Bendon Net Debt Statement is a greater value than the Net Debt Amount (such difference, the “ Net Debt Excess Amount ”), then the Bendon Target Share Number shall be reduced by a number equal to the product obtained by multiplying (i) the Net Debt Excess Amount and (ii) 0.167. In the event Estimated Bendon Closing Net Debt as reflected in the Estimated Bendon Net Debt Statement is a lesser value than the Net Debt Amount (such difference, the “ Net Debt Shortfall Amount ”), then the Bendon Target Share Number shall be increased by a number equal to the product obtained by multiplying (i) the Net Debt Shortfall Amount and (ii) 0.167. Notwithstanding the foregoing, no adjustment shall be made to the Share Number pursuant to this Section 1.5(b)(i)(B) unless the Net Debt Excess Amount or Net Debt Shortfall Amount is greater than $1,000,000.

(ii) Within fifteen (15) Business Days after to the Closing Date, (A) the Naked Representative shall prepare in good faith and deliver to Bendon a statement (the “ Final Naked Net Assets Statement ”) showing, in reasonable detail, the calculation of Naked’s actual Net Assets as of the Closing Date (the “ Final Naked Closing Net Assets ”) and (B) Bendon shall prepare in good faith and deliver to the Naked Representative a statement (the “ Final Bendon Net Debt Statement ,” and together with Final Naked Net Assets Statement, the “ Final Closing Statements ”) showing, in reasonable detail, the calculation of Bendon’s actual Net Debt as of the Closing Date (the “ Final Bendon Closing Net Debt ”). The Final Naked Net Assets Statement and the Final Bendon Net Debt Statement shall be derived utilizing U.S. GAAP and IFRS, respectively, consistent with the historical practice of Naked and Bendon, respectively, and shall be certified as being accurate and complete by Naked’s and Holdco’s independent registered public accounting firm. The Naked Representative and its advisors shall have full access to the books and records, personnel, historical financial information, advisors and accountants of Naked and such other information of Naked as the Naked Representative may reasonably request for the purpose of preparing the Final Naked Net Assets Statement; provided that the Naked Representative and its advisors agree to reasonable confidentiality restrictions.

(iii) If Bendon disagrees with the Final Naked Closing Net Assets as set forth in the Final Naked Net Assets Statement or the Naked Representative disagrees with the Final Bendon Closing Net Debt as set forth in the Final Bendon Net Debt Statement, in each case, delivered pursuant to Section 1.5(b)(ii), the party that disagrees with the applicable Final Closing Statement (the “ Disputing Party ”) shall notify the party that prepared the applicable Final Closing Statement (the “ Preparing Party ”) of such disagreement in writing specifying in reasonable detail any and all items of disagreement (each, an “ Item of Dispute ”) within five (5) Business Days after its receipt of the applicable Final Closing Statement. In connection with the review of the Final Closing Statements and the calculations contained therein, the Preparing Party shall provide the Disputing Party with reasonable access to the books and records, personnel and properties and any other information of the Preparing Party and their respective Subsidiaries that the Disputing Party reasonably requests in connection with such review, subject to the Disputing Party executing a confidentiality agreement in a form reasonably acceptable to the Preparing Party. The Disputing Party and the Preparing Parties (together, the “ Independent Parties ”) shall use their commercially reasonable best efforts for a period of five (5) Business Days after the Disputing Party’s delivery of such notice (or such longer period as the Independent Parties may mutually agree upon) to resolve any Items of Dispute raised by the Disputing Party. If, at the end of such period, the Independent Parties do not resolve any such Item of Dispute, any party may submit the matter to a mutually acceptable independent accounting firm of recognized national standing to review and resolve the Item of Dispute. In the event the Independent Parties cannot agree upon an accounting firm within five (5) Business Days after the failure to resolve any such Item of Dispute (or if such accounting firm does not

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accept the engagement and they cannot agree upon a replacement accounting firm within five (5) Business Days after the accounting firm notifies the parties that it will not accept the engagement), they shall choose an accounting firm by lot from those accounting firms of recognized national standing practicing in the State of New York having no material relationship to the Independent Parties or their respective Affiliates and having offices in locations suitable to conduct such review (the accounting firm selected in accordance with the preceding two sentences is referred to herein as the “ Accounting Firm ”). The Independent Parties shall request that the Accounting Firm render a determination on each Item of Dispute, solely based on whether such Item of Dispute was prepared accurately and in accordance with U.S. GAAP and consistent with the historical practice of Naked (with respect to the Final Naked Closing Net Assets calculation) and in accordance with IFRS and consistent with the historical practice of Bendon (with respect to the Final Bendon Closing Net Debt calculation). The determination by the Accounting Firm shall be set forth in a written statement with a reasonably detailed explanation for such determination, and shall be final, binding and conclusive on the parties absent fraud, bad faith or manifest error. The Independent Parties shall make their respective submissions to the Accounting Firm within five (5) Business Days after selecting such firm pursuant to this Section 1.5(b)(iii). The Independent Parties shall use their commercially reasonable best efforts to cause the Accounting Firm to make its determination as soon as practicable after accepting its selection. All of the fees and expenses of the Accounting Firm shall be borne by Bendon. The Final Naked Closing Statement and Final Bendon Closing Statement, as the case may be, shall be revised as appropriate to reflect the resolution of any Items of Dispute pursuant to this Section 1.5(b)(iii) and, as so revised, such Final Naked Closing Statement and Final Bendon Closing Statement, as the case may be, shall be deemed to set forth the Final Naked Closing Net Assets and Final Bendon Closing Net Assets, as applicable, in each case, for all purposes hereunder (including the determination of the Naked Final Net Asset Share Adjustment and Bendon Final Net Debt Share Adjustment).

(iv) If the Naked Final Net Asset Share Adjustment is greater than the Naked Estimated Net Asset Share Adjustment, then Holdco shall issue, in the aggregate, that number of Holdco Ordinary Shares equal to the difference between the Naked Final Net Asset Share Adjustment and the Naked Estimated Net Asset Share Adjustment to the shareholders of Bendon as of immediately prior to the Reorganization, allocated in accordance with the Reorganization Agreement. If the Naked Final Net Asset Share Adjustment is less than the Naked Estimated Net Asset Share Adjustment, then the shareholders of Bendon as of immediately prior to the Reorganization shall surrender for cancellation, in the aggregate, that number of Holdco Ordinary Shares equal to the difference between the Naked Estimated Net Asset Share Adjustment and the Naked Final Net Asset Share Adjustment to Holdco, allocated in accordance with the Reorganization Agreement. If the Bendon Final Net Debt Share Adjustment is greater than the Bendon Estimated Net Debt Share Adjustment, then Holdco shall issue, in the aggregate, that number of Holdco Ordinary Shares equal to the difference between the Bendon Final Net Debt Share Adjustment and the Bendon Estimated Net Debt Share Adjustment to the shareholders of Bendon as of immediately prior to the Reorganization, allocated in accordance with the Reorganization Agreement. If the Bendon Final Net Debt Share Adjustment is less than the Bendon Estimated Net Debt Share Adjustment, then the shareholders of Bendon as of immediately prior to the Reorganization shall surrender for cancellation, in the aggregate, that number of Holdco Ordinary Shares equal to the difference between the Bendon Estimated Net Debt Share Adjustment and the Bendon Final Net Debt Share Adjustment to Holdco, allocated in accordance with the Reorganization Agreement.”

3. Section 2.3(b) of the Merger Agreement is hereby amended by replacing the reference to “20,915,036” with “22,680,527” and the reference to “Section 1.5(c)” with “Section 1.5(b)”.

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4. Section 5.1(a) of the Merger Agreement is hereby amended by replacing the sixth sentence of such paragraph in its entirety with the following:

“Holdco and Bendon, with the assistance of Naked and its counsel, shall promptly respond to any SEC comments on the Registration Statement and shall otherwise use commercially reasonable best efforts to cause the Registration Statement to be declared effective by the SEC as promptly as practicable on a date that is mutually agreed by Naked and Bendon.”

5. Schedule 5.19 to the Merger Agreement is hereby amended by replacing it in its entirety with Schedule 5.19 hereto. All references to the “Budget” in the Merger Agreement, as amended hereby, shall be deemed to be references to Schedule 5.19 hereto.

6. Section 7.1(b)(i) of the Merger Agreement is hereby amended by replacing the reference to “April 27, 2018” with “June 1, 2018”, replacing the reference to “April 17, 2018” with “May 22, 2018” and replacing the reference to “May 7, 2018” with “June 11, 2018”.

7. The table set forth in Section 8.1 of the Merger Agreement is hereby amended by:

(a) updating the cross-references for the definitions listed below as set forth below:

 
Accounting Firm   Section 1.5(b)(iii)
Bendon Target Share Number   Section 1.5(b)(i)(A)
Disputing Party   Section 1.5(b)(iii)
Item of Dispute   Section 1.5(b)(iii)
Net Asset Excess Amount   Section 1.5(b)(i)(A)
Net Asset Shortfall Amount   Section 1.5(b)(i)(A)
Net Debt Excess Amount   Section 1.5(b)(i)(B)
Net Debt Shortfall Amount   Section 1.5(b)(i)(B)
Preparing Party   Section 1.5(b)(iii)

(b) deleting “Bendon Closing Net Debt,” “Bendon Net Debt Statement,” “Closing Statements,” “Naked Closing Net Assets,” “Naked Net Assets Statement,” “Net Asset Excess Amount,” “Net Asset Shortfall Amount,” “Net Debt Excess Amount” and “Net Debt Shortfall Amount” and the corresponding cross-references; and

(c) adding cross-references for the definitions listed below as set forth below:

 
Estimated Bendon Closing Net Debt   Section 1.5(b)(i)
Estimated Bendon Net Debt Statement   Section 1.5(b)(i)
Estimated Naked Closing Net Assets   Section 1.5(b)(i)
Estimated Naked Net Assets Statement   Section 1.5(b)(i)
Final Bendon Closing Net Debt   Section 1.5(b)(ii)
Final Bendon Net Debt Statement   Section 1.5(b)(ii)
Final Closing Statements   Section 1.5(b)(ii)
Final Naked Closing Net Assets   Section 1.5(b)(ii)
Final Naked Net Assets Statement   Section 1.5(b)(ii)

8. Section 8.2 of the Merger Agreement is hereby amended by deleting paragraph (h) in its entirety and renumbering the succeeding paragraphs accordingly.

9. Section 8.2 of the Merger Agreement is hereby amended by replacing existing paragraphs (j) and (k) (i.e., before the deletion of paragraph (h) of Section 8.2 in accordance with Section 8 of this Amendment No. 4 and the insertion of new paragraphs in Section 8.2 in accordance with Section 10 of this Amendment No. 4) in their entirety with the following:

“(j) the term “ Net Asset Amount ” means $3,500,000; provided, however, that any increase or decrease, at any time prior to the Closing, in the total expenditures provided for in the Budget shall cause a dollar-for-dollar decrease or increase, respectively, in the Net Asset Amount;”

“(k) the term “ Net Debt Amount ” means $(8,500,000);”

A-5-4

 
 

10. Section 8.2 of the Merger Agreement is hereby amended by inserting the following new paragraphs in alphabetical order based on the term being defined and renumbering the succeeding paragraphs accordingly:

“(b) the term “ Bendon Estimated Net Debt Share Adjustment ” means the number of Holdco Ordinary Shares by which the Bendon Target Share Number was adjusted pursuant to Section 1.5(b)(i)(B); provided that, for purposes of Section 1.5(b)(iv), such number of Holdco Ordinary Shares shall be expressed as a positive number if such adjustment resulted in an increase in the Bendon Target Share Number and expressed as a negative number if such adjustment resulted in a decrease in the Bendon Target Share Number;”

“(c) the term “ Bendon Final Net Debt Share Adjustment ” means the number of Holdco Ordinary Shares by which the Bendon Target Share Number would have been adjusted pursuant to Section 1.5(b)(i)(B) using the Final Bendon Closing Net Debt as reflected in the Final Bendon Closing Statement (as revised in accordance with Section 1.5(b)(iii), if applicable) in place of the Estimated Bendon Net Debt as reflected in the Estimated Bendon Closing Statement; provided that, for purposes of Section 1.5(b)(iv), such number of Holdco Ordinary Shares shall be expressed as a positive number if such adjustment (as calculated in accordance of the foregoing) would have resulted in an increase in the Bendon Target Share Number and expressed as a negative number if such adjustment (as calculated in accordance of the foregoing) would have resulted in a decrease in the Bendon Target Share Number;”

“(j) the term “ Naked Estimated Net Assets Share Adjustment ” means the number of Holdco Ordinary Shares by which the Bendon Target Share Number was adjusted pursuant to Section 1.5(b)(i)(A); provided that, for purposes of Section 1.5(b)(iv), such number of Holdco Ordinary Shares shall be expressed as a positive number if such adjustment resulted in an increase in the Bendon Target Share Number and expressed as a negative number if such adjustment resulted in a decrease in the Bendon Target Share Number;”

“(k) the term “ Naked Final Net Assets Share Adjustment ” means the number of Holdco Ordinary Shares by which the Bendon Target Share Number would have been adjusted pursuant to Section 1.5(b)(i)(A) using the Final Naked Closing Net Assets as reflected in the Final Naked Closing Statement (as revised in accordance with Section 1.5(b)(iii), if applicable) in place of the Estimated Naked Closing Net Assets as reflected in the Estimated Naked Closing Statement; provided that, for purposes of Section 1.5(b)(iv), such number of Holdco Ordinary Shares shall be expressed as a positive number if such adjustment (as calculated in accordance of the foregoing) would have resulted in an increase in the Bendon Target Share Number and expressed as a negative number if such adjustment (as calculated in accordance of the foregoing) would have resulted in a decrease in the Bendon Target Share Number;”

“(l) the “ Naked Representative ” means the Person designated in writing by Naked at least five (5) Business Days prior to the Closing Date, or such other Person selected by a majority of disinterested directors of Naked in office as of immediately prior to the Closing, upon notice in writing to Bendon of such selection;”

11. In accordance with Section 5.18(a) of the Merger Agreement, Naked hereby consents to the amendment or modification of the Reorganization Agreement, in substantially the form previously provided to Naked, to reflect a Bendon Target Share Number of 22,680,527 and the adjustment provisions set forth in Section 1.5(b) of the Merger Agreement, as amended hereby.

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12. Except as specifically provided in this Amendment No. 4, no provision of the Merger Agreement is modified, changed, waived, discharged or otherwise terminated and the Merger Agreement shall continue to be in full force and effect. This Amendment No. 4, together with the Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. This Amendment No. 4 may be executed and delivered (including by facsimile) in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.

[ Remainder of Page Left Blank Intentionally ]

A-5-6

 
 

IN WITNESS WHEREOF, this Amendment No. 4 has been duly executed and delivered by the duly authorized officers of the parties as of the date first written above.

NAKED BRAND GROUP INC.

By: /s/ Carole Hochman

Name: Carole Hochman
Title:  Chief Executive Officer

BENDON LIMITED

By: /s/ Justin Davis-Rice

Name: Justin Davis-Rice
Title:  Chairman

BENDON GROUP HOLDINGS LIMITED

By: /s/ Justin Davis-Rice

Name: Justin Davis-Rice
Title:  Director

NAKED MERGER SUB INC.

By: /s/ Justin Davis-Rice

Name: Justin Davis-Rice
Title:  Chief Executive Officer

BENDON INVESTMENTS LIMITED

By: /s/ Justin Davis-Rice

Name: Justin Davis-Rice
Title:  Director

[ Signature Page to Amendment No. 4 to Agreement and Plan of Merger ]

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