Naked Brand Group Inc. (NASDAQ:NAKD) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry into a Material Definitive Agreement
Agreement and Plan of Reorganization
On May 25, 2017, Naked Brand Group, Inc. (Naked) entered into an
Agreement and Plan of Reorganization (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 (Merger Sub), 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 (the
Principal Shareholder), to which Merger Sub will be merged with
and into Naked (the Merger) with Naked as the surviving
corporation.
Immediately prior to the consummation of the Merger, Bendon and
Holdco will consummate a reorganization (the Reorganization), to
which all of the shareholders of Bendon will exchange all the
outstanding ordinary shares of Bendon (the Bendon Ordinary
Shares) for 146,311,063 ordinary shares of Holdco (Holdco
Ordinary Shares), subject to certain potential adjustments to the
Merger Agreement. As a result of the Reorganization and Merger,
Bendon and Naked, respectively, will become wholly owned
subsidiaries of Holdco and the shareholders of Bendon and the
stockholders of Naked, respectively, will become the shareholders
of Holdco.
Upon completion of the Merger, each issued and outstanding share
of Naked common stock (Naked Common Stock) will be converted into
the right to receive one Holdco Ordinary Share, resulting in
Naked stockholders owning approximately seven percent (7%) of
Holdco.
Naked, Bendon, Holdco and Merger Sub have made customary
representations, warranties and covenants to each other. The
representations and warranties made by Naked are qualified by
disclosures made in its disclosure schedules and Securities and
Exchange Commission (the SEC) filings and the representations and
warranties made by Bendon, Holdco and Merger Sub are qualified by
disclosures made in its disclosure schedules. Naked has also
agreed, among other things, to covenants relating to the conduct
of its businesses during the interim period between the execution
of the Merger Agreement and the consummation of the Merger.
The completion of the Merger is subject to the satisfaction or
waiver of certain customary conditions, including, among others:
(i) the accuracy of the other partys representations and
warranties; (ii) performance in all material respects by the
other party of its obligations under the Merger Agreement; (iii)
the listing of Holdco Ordinary Shares on the Nasdaq Capital
Market or the New York Stock Exchange (NYSE), subject to official
notice of issuance; (iv) the declaration of effectiveness by the
SEC of the registration statement on Form F-4 to be filed by
Holdco in connection with the transactions (the Registration
Statement); (v) Naked stockholders approving the Merger Agreement
and the transactions contemplated thereby at a meeting called for
such purposes (the Stockholder Meeting); and (vi) other
conditions as further described in the Merger Agreement.
The Merger Agreement also contains specified termination rights,
including the right to terminate the Merger Agreement (i) by
mutual agreement of the parties to terminate; (ii) by either
party if (1) the Merger has not been consummated by October 30,
2017 (the Outside Date), except if the primary reason the Merger
has not been consummated is because of the continued review of
the Registration Statement by the SEC or the Holdco Ordinary
Shares have not been approved for listing on the Nasdaq Capital
Market or the NYSE, in which case the Outside Date shall be
fifteen (15) days after the later of the completion of the
Special Meeting and approval of all regulatory bodies and Nasdaq
or the NYSE, (2) any law or order permanently prohibits
consummation of the Merger, or (3) Naked stockholder approval is
not obtained by the Outside Date; (iii) by either party if the
other party has breached or failed to perform in any material
respect any of its representations and warranties or covenants
under the Merger Agreement such that a closing condition is not
satisfied (subject to notice and cure and other customary
exceptions); and (iv) by Naked if (1) Bendon substantially
changes its business as conducted as of the date of the Merger
Agreement, or (2) Naked accepts a Superior Proposal (as defined
in the Merger Agreement).
If (i) Naked terminates the Merger Agreement as a result of
accepting a Superior Proposal, (ii) the Merger shall not have
been consummated by Outside Date, primarily as a result of
actions or omissions by Naked, or (iii) the Naked Common Stock
shall be delisted from Nasdaq prior to the Closing Date, then
Naked shall issue to Bendon 2,500,000 shares of Naked Common
Stock, adjusted for any stock splits, stock combinations, stock
dividends or similar transactions affecting Naked Common Stock as
a whole. Alternatively, if Naked and its management have complied
with all of their obligations under the Merger Agreement and the
Naked stockholder approval is not obtained by the Outside Date,
Naked shall issue to Bendon 1,250,000 shares of Naked Common
Stock, as adjusted for any stock splits, stock combinations,
stock dividends or similar transactions affecting Naked Common
Stock as a whole.
The foregoing description of the Merger Agreement does not
purport to be complete and is qualified in its entirety by
reference to the Merger Agreement attached hereto as Exhibit 2.1,
which is incorporated by reference herein.
The Merger Agreement and the above description of the Merger
Agreement have been included to provide investors and security
holders with information regarding the terms of the Merger
Agreement. The Merger Agreement and the above description are not
intended to provide any other factual information about the
Naked, Bendon, Holdco and/or Merger Sub or their respective
subsidiaries or affiliates. The representations, warranties and
covenants contained in the Merger Agreement were made only for
purposes of the Merger Agreement and as of specific dates; were
solely for the benefit of the parties to the Merger Agreement;
may be subject to limitations agreed upon by the parties,
including being qualified by confidential disclosures made by
each contracting party to the other for the purposes of
allocating contractual risk between them rather than establishing
these matters as facts; and may be subject to standards of
materiality applicable to the contracting parties that differ
from those applicable to investors. Investors and security
holders are not third-party beneficiaries under the Merger
Agreement and should not rely on the representations, warranties
and covenants or any description thereof as characterizations of
the actual state of facts or condition of Naked, Bendon, Holdco
and/or Merger Sub or any of their respective subsidiaries,
affiliates or businesses. Moreover, information concerning the
subject matter of the representations, warranties and covenants
may change after the date of the Merger Agreement, which
subsequent information may or may not be fully reflected in
public disclosures by Naked or Holdco. The Merger Agreement
should not be read alone, but should instead be read in
conjunction with the other information about Naked, Bendon,
Holdco and/or Merger Sub and their respective subsidiaries, as
well as in the reports, statements and other filings Naked makes
with the SEC.
Voting Agreements
The Merger Agreement requires Naked to use commercially
reasonable efforts to have certain of its directors and executive
officers enter into voting agreements (the Voting Agreements), to
which, among other things, such directors and officers will agree
to vote all of their shares of Naked Common Stock (representing
approximately 11.3% of the outstanding shares of Naked Common
Stock), as well as any additional shares acquired after the date
of the Voting Agreements, if any, in support of the Merger. The
Voting Agreements will also provide that each director or officer
executing a Voting Agreement agrees to refrain from selling Naked
Common Stock, subject to certain exceptions, until the completion
of the Merger.
Item 7.01 Regulation FD Disclosure.
On May 25, 2017, Naked and Bendon issued a joint press release
announcing the execution of the Merger Agreement (the Press
Release). A copy of the Press Release is attached hereto as
Exhibit 99.1 and incorporated herein by reference.
The information in Item 7.01 of this Current Report on Form 8-K,
including the information contained in Exhibit 99.1, shall not be
deemed filed for purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the Exchange Act), or otherwise
subject to the liabilities under that Section. The information in
Item 7.01 of this Current Report shall not be incorporated by
reference into any filing or other document to the Securities Act
of 1933 or the Exchange Act except as shall be expressly set
forth by specific reference in such filing or document.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
| 2.1 | Agreement and Plan of Reorganization, dated May 25, 2017.* | |
| 99.1 | Press Release, dated May 25, 2017.** |
* Certain exhibits and schedules to this Exhibit have been
omitted in accordance with Regulation S-K Item 601(b)(2). Naked
agrees to furnish supplementally a copy of all omitted exhibits
and schedules to the SEC upon its request.
**Furnished herewith.
Additional Information and Where to Find It
Naked and Holdco intend to file relevant materials with the SEC,
including the Registration Statement to be filed by Holdco that
will include a proxy statement of Naked that also constitutes a
prospectus of Holdco and a definitive proxy statement/prospectus.
The proxy statement/prospectus will be mailed to stockholders of
Naked as of a record date to be established for voting on the
proposed Merger. Such documents are not currently available.
Before making any voting or investment decision with respect to
the Merger, investors and security holders are urged to read the
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 Merger. Investors
and security holders will be able to obtain free copies of the
proxy statement/prospectus and other relevant materials
containing important information about Naked, Bendon and Holdco
once such documents are filed with the SEC, through the website
maintained by the SEC at http://www.sec.gov. Copies of the
documents filed with the SEC by Naked or Holdco when and if
available, can be obtained free of charge on Nakeds website under
the Investor Relations section at http://www.nakedbrands.com or
by directing a written request to Naked Brand Group Inc., 10th
Floor 95 Madison Avenue, New York, NY 10016, Attention: Investor
Relations; and/or on Bendons 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 Nakeds stockholders in connection with
the proposed Merger. Investors and security holders may obtain
more detailed information regarding the names and interests in
the proposed Merger of Nakeds directors and officers in Nakeds
filings with the SEC. Additional information regarding the
directors and executive officers of Naked is also included in
Nakeds 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 Nakeds
shareholders in connection with the proposed Merger will be set
forth in the proxy statement/prospectus for the proposed Merger
when available. This document will be available free of charge at
the SECs web site (www.sec.gov) and from Nakeds 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 Nakeds or Bendons 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:
express or implied regarding future financial performance, the
effects of Nakeds and Bendons business models, the effects of the
of the proposed Merger, the transactions contemplated by the
Merger Agreement or any other actions to be taken in connection
therewith; Nakeds continued listing on the NASDAQ Capital Market
until closing of the proposed Merger; Nakeds continued compliance
with the minimum shareholders equity requirements at the time of
Nakeds next periodic report; Holdcos anticipated listing on the
NASDAQ Capital Market or the NYSE in connection with the closing
of the proposed Merger; expectations regarding the
capitalization, resources and ownership structure of Holdco; the
adequacy of Holdcos capital to support its future operations; the
nature, strategy and focus of the combined company; the executive
and board structure of Holdco; and expectations regarding voting
by Nakeds stockholders at the Stockholder Meeting. 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 managements 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 Mergerthrough the process
being conducted by Naked, Holdco and Bendon, the ability of
Naked, Holdco and Bendon to consummate the transactions
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
effectiveness of the Registration Statement to be filed with the
SEC or the listing of Holdcos ordinary shares on the NASDAQ
Capital Market or the NYSE, the lack of a public market for
ordinary shares of Holdco and the possibility that a market for
such shares may not develop, 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 Merger in the amounts or
in the timeframe anticipated, the risk that competing offers or
acquisition proposals will be made, the ability to integrate
Nakeds and Bendons 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 Merger on customer, supplier, employee
and other relationships. Naked 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.
About Naked Brand Group Inc. (NASDAQ:NAKD)
Naked Brand Group Inc. is an apparel and lifestyle brand company. The Company is focused on innerwear products for women and men. The Company designs, manufactures and sells men’s and women’s underwear, intimate apparel, loungewear and sleepwear under Naked brand name. The Company sells its products through retail partners and direct to consumer through its online retail store www.wearnaked.com. The Company offers a range of innerwear products for men, including boxer briefs, trunks, briefs, undershirts, t-shirts, lounge pants, lounge shorts and robes. Its primary men’s collections include Luxury, Active and Essential. Its women’s collections include a range of products, such as boyshorts, hipsters, lounge pants and tops, camisoles, tank tops, pajamas, chemises and sleepshirts. The Company also makes French Terry robes, as well as Double Gauze woven cotton sleepwear. Naked Brand Group Inc. (NASDAQ:NAKD) Recent Trading Information
Naked Brand Group Inc. (NASDAQ:NAKD) closed its last trading session down -0.05 at 2.44 with shares trading hands.