As filed with the Securities and Exchange Commission on October 15, 2020

 

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM F-3

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

NAKED BRAND GROUP LIMITED

(Exact name of Registrant as specified in its charter)

 

N/A

(Translation of Registrant’s name into English)

 

Australia		N/A
(State or other jurisdiction of Incorporation or organization)		(I.R.S. Employer Identification Number)

 

c/o Bendon Limited

8 Airpark Drive

Airport Oaks

Auckland 2022,

New Zealand

+64 9 275 0000

(Address and telephone number of Registrant’s principal executive offices)

 

Justin Davis-Rice, Executive Chairman

c/o Bendon Limited

1/23 Court Road

Double Bay

NSW 2028, Australia

+64 9 275 0000

(Name, address, and telephone number of agent for service)

 

Copies to:

 

David Alan Miller, Esq. Jeffrey M. Gallant, Esq. Eric T. Schwartz, Esq. Graubard Miller The Chrysler Building 405 Lexington Avenue New York, New York 10174 Telephone: (212) 818-8800

Matthew Nelson, Esq. HWL Ebsworth Lawyers Level 14, Australia Square 264-278 George Street Sydney, Australia Telephone: +61 2 9334 8555

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

 

If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [  ]

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X]

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [  ]

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [  ]

 

If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [  ]

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [  ]

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.

 

Emerging growth company [X]

 

If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised accounting standards provided to Section 7(a)(2)(B) of the Securities Act. [  ]

 

CALCULATION OF REGISTRATION FEE

 

Title of each class of securities to be registered		Amount to be registered(1)				Proposed maximum aggregate price per unit(2)				Proposed maximum aggregate offering price(2)				Amount of registration fee
Ordinary shares, being offered for resale, underlying redeemable conversion shares(3)			47,370,675			$	0.13			$	6,158,187.75			$	671.86

 

(1)	In the event of a stock split, reverse stock split, stock dividend or similar transaction involving the Registrant’s ordinary shares, the number of shares registered shall automatically be adjusted to cover the additional ordinary shares issuable pursuant to Rule 416 under the Securities Act of 1933, as amended.
(2)	Estimated solely for purposes of calculating the registration fee in accordance with Rule 457, based upon the average of the high and low sales prices of the Registrant’s ordinary shares as reported on the Nasdaq Capital Market on October 7, 2020.
(3)	Represents ordinary shares underlying redeemable convertible shares issued pursuant to a settlement agreement with certain lenders.

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 

Subject to completion, dated October 15, 2020

 

NAKED BRAND GROUP LIMITED

 

47,370,675 Ordinary Shares

 

This prospectus relates to the resale by the Selling Shareholders (as defined below) of up to 47,370,675 of our Ordinary Shares (as defined below).

 

The shares offered for resale hereby consist of Ordinary Shares underlying redeemable conversion shares (the “Bendon Conversion Shares”) issued by Bendon (as defined below), one of our operating subsidiaries, pursuant to a settlement agreement dated October 5, 2020 (the “Settlement Agreement”). We will not receive any proceeds from the sale of the securities by the Selling Shareholders under this prospectus.

 

Information regarding the Selling Shareholders, the number of Ordinary Shares that may be sold by them, and the times and manner in which they may offer and sell the Ordinary Shares under this prospectus is provided under the sections titled “Selling Shareholders” and “Plan of Distribution.” We have not been informed by the Selling Shareholders when or in what amount the Selling Shareholders may offer the securities for sale. The Selling Shareholders may sell any, all, or none of the securities offered by this prospectus. The Selling Shareholders and intermediaries through whom such securities are sold may be deemed “underwriters” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), with respect to the securities offered hereby, and any profits realized or commissions received may be deemed underwriting compensation.

 

Our Ordinary Shares trade on the Capital Market of The Nasdaq Stock Market (“Nasdaq”) under the symbol “NAKD.” The last sale price of our Ordinary Shares on October 14, 2020 was US$0.11 per share.

 

Investing in our securities involves risks. See “Risk Factors” beginning on page 9 to read about factors you should consider before buying our securities.

 

Neither the Securities and Exchange Commission nor any state or foreign securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

Prospectus dated , 2020

 

 

TABLE OF CONTENTS

 

PROSPECTUS SUMMARY	1
THE OFFERING	7
RISK FACTORS	8
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS	11
USE OF PROCEEDS	12
CAPITALIZATION AND INDEBTEDNESS	12
THE PRIVATE PLACEMENT	14
SELLING SHAREHOLDERS	15
PLAN OF DISTRIBUTION	16
EXPENSES	18
LEGAL MATTERS	18
EXPERTS	18
SERVICE OF PROCESS AND ENFORCEMENT OF CIVIL LIABILITIES	18
WHERE YOU CAN FIND ADDITIONAL INFORMATION	18
INCORPORATION BY REFERENCE OF CERTAIN DOCUMENTS	19

 

You should rely only on the information contained in this prospectus and the documents we incorporate by reference in this prospectus. We have not authorized anyone to provide you with different information. We do not take any responsibility for, and cannot provide any assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell the securities in any jurisdiction where the offer or sale thereof is not permitted. The information contained in this prospectus and incorporated by reference in this prospectus is accurate only as of the respective date of such information, regardless of the time of delivery of this prospectus or of any sale or offer to sell hereunder.

 

To the extent this prospectus contains summaries of the documents referred to herein, you are directed to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed, or will be incorporated by reference as exhibits to the registration statement of which this prospectus forms a part, and you may obtain copies of such documents as described below in the section titled “Where You Can Find Additional Information.”

 

This prospectus contains references to a number of trademarks which are registered or for which we have pending applications or common law rights. Our major trademarks include, among others, Bendon, Bendon Man, Davenport, Fayreform, Lovable, Pleasure State, VaVoom, Evollove, Hickory and Frederick’s of Hollywood and other related trademarks. Solely for convenience, the trademarks, service marks and trade names referred to in this prospectus and the documents we incorporate by reference are listed without the ®, (sm) and (tm) symbols, but we will assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensors to these trademarks, service marks and trade names.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RISK FACTORS

 

An investment in our securities involves a high degree of risk. Before investing in our Ordinary Shares, you should carefully consider the risk factors set forth below and those described under “Risk Factors” in the documents incorporated by reference herein, including in our most recent Annual Report on Form 20-F filed with the SEC, together with the other information included in this prospectus and incorporated by reference herein from our filings with the SEC. If any of such risks or uncertainties occurs, our business, financial condition, and operating results could be materially and adversely affected. Additional risks and uncertainties not currently known to us or that we currently deem immaterial also may materially and adversely affect our business operations. As a result, the trading price of our Ordinary Shares could decline and you could lose all or a part of your investment.

 

Risks Relating to Our Business

 

Our business, results of operations, and financial condition may be impacted by the recent coronavirus (COVID-19) outbreak.

 

Our business has been and may continue to be adversely affected by a widespread outbreak of contagious disease, including the recent COVID-19 pandemic, resulting in business closures and a limit on consumer and employee travel across the globe. Any outbreak of contagious diseases, or other adverse public health developments, could have a material and adverse effect on our business operations. These could include disruptions or restrictions on our ability to travel, reduced traffic in our stores and the stores of our wholesale customers, temporary closures of our stores and/or office buildings or the facilities of our wholesale customers or suppliers. We may also see disruptions or delays in shipments and negative impacts to pricing of certain components of our products. Further, any disruption of our customers or suppliers would likely impact our sales and operating results. In addition, a significant outbreak of contagious diseases in the human population could result in a widespread health crisis that could adversely affect the economies and financial markets of many countries, resulting in an economic downturn that could affect demand for our products and likely impact our operating results. The resulting economic downturn can also negatively impact our share price.

 

As of the time of this filing, the impacts of the COVID-19 pandemic have been broad reaching, including impacts to our retail and wholesale businesses. The pandemic has had an impact on our business globally, with significant temporary store closures. The COVID-19 pandemic is also impacting the Asia region where we source most of our inventory. Temporary factory closures and the pace of workers returning to work has impacted our suppliers’ ability to source certain raw materials and to produce and fulfill finished goods orders in a timely manner. As of the date of this filing, we have also experienced impacts on deliveries, driven primarily by factory labor shortages and port congestion. However, the ability of our distribution and logistics providers to operate may be further impacted depending on the continued severity and duration of the pandemic and may have a significant impact on the cost and timing of receipts for future seasons. The occurrence of any of these events could further negatively impact our future consolidated financial position, results of operations and cash flows. There could be a prolonged impact on our business due to slow economic recovery or changes in consumer behavior. If we experience a sustained decrease in consumer demand related to the COVID-19 pandemic, it may exacerbate our need for additional financing. There is no guarantee that we will be able to obtain such additional financing, on acceptable terms or at all. The results for the full fiscal 2021 could also be impacted in ways we are not able to predict today, including, but not limited to, non-cash write-downs and asset impairment charges (including impairments on property and equipment, operating lease right-of use assets and intangible assets); unrealized gains or losses related to investments; foreign currency fluctuations; and collections of accounts receivables.

 

We are continuing to monitor the potential impact of the COVID-19 pandemic. As of the date of this prospectus, the Australian stores in the state of Victoria remain temporarily closed since August 3, 2020 and the Auckland stores in New Zealand are trading again following a two week closure due to a state of emergency being declared.

 

The two online stores are trading, and we are able to fulfil orders from the New Zealand and U.S. warehouses. In order to mitigate the significant impact on cash inflow we are working with our suppliers and lenders to extend payment terms. We are in discussions with BNZ to extend loan repayment dates and with our landlords to provide abatements through the period of closure. We have reduced staff hours and applied for government subsidies for the New Zealand and Australian employees. At the date of this prospectus, we had received NZ$2.0m in subsidies from the New Zealand government and AU$0.7m from the Australian government.

 

 

We are and may become the subject of various claims, threats of litigation, litigation or investigations which could have a material adverse effect on our business, financial condition, results of operations or price of our ordinary shares.

 

We are and may become subject to various claims, threats of litigation (including, from current and former shareholders of our company), litigation or investigations, including commercial disputes and employee claims, and from time to time may be involved in governmental or regulatory investigations or similar matters. Any claims asserted against us or our management, regardless of merit or eventual outcome, could harm our reputation and have an adverse impact on our relationship with our clients, distribution partners and other third parties and could lead to additional related claims. Furthermore, there is no guarantee that we will be successful in defending ourselves in pending or future litigation or similar matters under various laws. Any judgments or settlements in any pending litigation or future claims, litigation or investigation could have a material adverse effect on our business, financial condition, results of operations and price of our Ordinary Shares.

 

Risks Related to the Offering

 

Sales by the Selling Shareholders of the Ordinary Shares covered by this prospectus could adversely affect the trading price of our Ordinary Shares.

 

We are registering for resale up to 47,370,675 Ordinary Shares underlying the Bendon Conversion Shares, or approximately 14% of our outstanding Ordinary Shares on a fully-diluted basis as of October 12, 2020. This amount represents 150% of the number of shares issuable upon conversion of Bendon Conversion Shares (based on a closing sale price of the Ordinary Shares of $0.12 on October 6, 2020), which represents a good faith estimate of the maximum number of Ordinary Shares underlying such securities. The actual number of shares issued upon such conversion may be substantially more or less than this estimate, depending, among other things, the future market price of our Ordinary Shares. We cannot predict the market price of our Ordinary Shares at any future date, and therefore, we are unable to accurately forecast or predict the total amount of shares that ultimately may be issued under the Bendon Conversion Shares. The resale of all or a substantial portion of the shares offered hereby in the public market, or the perception that these sales might occur, could cause the market price of our Ordinary Shares to decrease and may make it more difficult for us to sell Ordinary Shares in the future at a time and upon terms that we deem appropriate.

 

We may issue additional securities in the future, which may result in dilution to our shareholders.

 

We are not restricted from issuing additional Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares. Because we anticipate we will need to raise additional capital to operate and/or expand our business, we expect to conduct equity offerings in future. We also may issue additional Ordinary Shares under the Sales Agreement, upon conversion of our outstanding convertible promissory notes and upon exercise of our outstanding warrants.

 

As of October 12, 2020, there were approximately 8,683,000 Ordinary Shares estimated to be issuable upon conversion of the July Note (assuming that the balance of the note and all accrued interest thereon as of such date was converted in full at the current conversion price) and 11,884,783 Ordinary Shares underlying the July Purchase Warrant. However, the actual number of shares issuable upon exercise of the July Purchase Warrant may be substantially more than the foregoing amount, depending, among other things, on whether the July Purchase Warrant is exercised through a Black-Scholes cashless exercise. In such event, the number of shares issuable upon exercise of the July Purchase Warrant would depend on the market price of the Ordinary Shares at a future date. We cannot predict the market price of our Ordinary Shares at any future date, and therefore, we are unable to accurately forecast or predict the total amount of shares that ultimately may be issued.

 

In addition, as of October 12, 2020, there were approximately 1,620,000 Ordinary Shares estimated to be issuable upon the conversion of the Prior Notes issued in February and April 2020 (assuming that the balance of each such note as of such date was converted in full at the fixed conversion price provided in each such note). However, the actual number of shares issuable upon conversion of the Prior Notes issued in February and April 2020 may be substantially more than the foregoing amount, because the Prior Note issued in February 2020 may be converted at a floating conversion price based on the current market price of our Ordinary Shares, provided we approve such conversion. Subject to our approval, the holder of such note may convert the outstanding balance of such note into the Ordinary Shares at a floating conversion price per share that is equal to (i) a percentage of not less than 75%, multiplied by (ii) the lowest daily volume weighted average price of the Ordinary Shares in the preceding 20 trading days, but in any event not less than a specified floor price. Based on the outstanding balance of approximately US$4,249,000 as of October 12, 2020, and an assumed floating conversion price of US$0.15 (which is the floor price), the Prior Note issued in February 2020 would be convertible into approximately 28,323,000 Ordinary Shares. We cannot predict the market price of our Ordinary Shares at any future date, and therefore, we are unable to accurately forecast or predict the total amount of shares that ultimately may be issued under the Prior Note issued in February 2020.

 

 

Furthermore, as of October 12, 2020, there were 592,900 Ordinary Shares underlying our outstanding warrants (other than the July Purchase Warrant).

 

There is no limit on the number of Ordinary Shares we may issue under our constitution. To the extent our outstanding warrants are exercised, our outstanding convertible promissory notes are converted or we conduct additional equity offerings, additional Ordinary Shares will be issued, which may result in dilution to our shareholders. Sales of substantial numbers of shares in the public market could adversely affect the market price of our Ordinary Shares. In addition, issuances of a substantial number of shares will reduce the equity interest of our existing investors and could cause a change in control of our company.

 

Nasdaq may delist our Ordinary Shares from quotation on its exchange, which could limit investors’ ability to sell and purchase our securities and subject us to additional trading restrictions.

 

The Ordinary Shares are currently listed on the Nasdaq Capital Market under the trading symbol “NAKD”. However, on March 11, 2020, we received a notice from the Nasdaq Listing Qualifications Department stating that, for the previous 30 consecutive business days, the closing bid price for the Ordinary Shares had been below the minimum of $1.00 per share required for continued inclusion on the Nasdaq Capital Market under Nasdaq Listing Rule 5550(a)(2). The notification letter stated that we would be afforded 180 calendar days to regain compliance with the minimum bid price requirement. In addition, Nasdaq has tolled the compliance period from April 16, 2020 through June 30, 2020, due to the impact of COVID-19. Accordingly, we have until November 23, 2020 to regain compliance with the minimum bid price requirement. In order to regain compliance, the closing bid price for the Ordinary Shares must be at least US$1.00 per share for a minimum of ten consecutive business days. The notification letter also stated that in the event we do not regain compliance within the initial 180-day period, we may be eligible for an additional 180 calendar days.

 

There can be no assurance that we will regain compliance with the minimum bid price requirement within the allotted period, or that we will be able to maintain compliance with the other continued listing requirements under the Nasdaq Listing Rules.

 

If the Ordinary Shares are not listed on Nasdaq at any time after this offering, we could face significant material adverse consequences, including:

 

	●	a limited availability of market quotations for our securities;
	●	reduced liquidity;
	●	a determination that the Ordinary Shares are a “penny stock” which will require brokers trading in our shares to adhere to more stringent rules, possibly resulting in a reduced level of trading activity in the secondary trading market for the Ordinary Shares;
	●	a limited amount of news and analyst coverage for our company; and
	●	a decreased ability to issue additional securities or obtain additional financing in the future.

 

We do not intend to pay any dividends on our Ordinary Shares at this time.

 

We have not paid any cash dividends on our Ordinary Shares to date. The payment of cash dividends on our Ordinary Shares in the future will be dependent upon our revenue and earnings, if any, capital requirements, and general financial condition, as well as the limitations on dividends and distributions that exist under the laws and regulations of Australia, and will be within the discretion of our board of directors. It is the present intention of our board of directors to retain all earnings, if any, for use in our business operations and, accordingly, our board of directors does not anticipate declaring any dividends on our Ordinary Shares in the foreseeable future. As a result, any gain you will realize on our Ordinary Shares will result solely from the appreciation of such shares.

 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

The statements contained in this prospectus that are not purely historical are forward-looking statements. Forward-looking statements include, but are not limited to, statements regarding expectations, hopes, beliefs, intentions, or strategies regarding the future. In addition, any statements that refer to projections, forecasts, or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predicts,” “project,” “should,” “would,” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements contained in this Annual Report include, among other things, statements relating to:

 

	●	expectations regarding industry trends and the size and growth rates of addressable markets;
	●	our business plan and our growth strategies, including plans for expansion to new markets and new products; and
	●	expectations for seasonal trends.

 

These statements are not assurances of future performance. Instead, they are based on current expectations, assumptions, and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments will be those that have been assumed or anticipated. These forward-looking statements are subject to a number of risks and uncertainties (some of which are beyond our control) that may cause our expectations, assumptions or beliefs to be inaccurate or otherwise cause our actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those risk factors described or incorporated by reference under the heading “Risk Factors” and those risks described from time to time in our filings with the SEC, as well as the following risks:

 

	●	our ability to raise any necessary capital;
	●	our ability to maintain the strength of our brand or to expand our brand to new products and geographies;
	●	our ability to protect or preserve our brand image and proprietary rights;
	●	our ability to satisfy changing consumer preferences;
	●	an economic downturn affecting discretionary consumer spending;
	●	our ability to compete in our markets effectively;
	●	our ability to manage our growth effectively;
	●	poor performance during our peak season affecting our operating results for the full year;
	●	our indebtedness adversely affecting our financial condition;
	●	our ability to maintain relationships with our select number of suppliers;
	●	our ability to manage our product distribution through our retail partners and international distributors;
	●	the success of our marketing programs;
	●	business interruptions because of a disruption at our headquarters;
	●	fluctuations in raw materials costs or currency exchange rates;
	●	the success of our business restructuring; and
	●	the impact of the COVID-19 pandemic.

 

Should one or more of these risks or uncertainties materialize, or should any of our expectations, assumptions or beliefs otherwise prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, except as may be required under applicable securities laws.

 

 

USE OF PROCEEDS

 

All the Ordinary Shares sold under this prospectus will be sold or otherwise disposed of for the account of the Selling Shareholders. We will not receive any proceeds from the sale of the Ordinary Shares under this prospectus.

 

CAPITALIZATION AND INDEBTEDNESS

 

The following table sets forth our capitalization at January 31, 2020 on an historical basis and on a pro forma basis, after giving effect to the transactions described in the notes table.

 

You should read this table together with our financial statements and the related notes thereto, as well as “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the other financial information, incorporated by reference in this prospectus supplement or the accompanying base prospectus from our SEC filings, including our Annual Report. The information presented in the capitalization table below is unaudited.

 

In Thousands of NZ$ and US$		As at January 31, 2020 (Historical)								As at January 31, 2020 (Pro Forma)(1)
		NZ$				US$ (2)				NZ$				US$ (2)
Borrowings			38,913				25,683				27,814				18,357
Share Capital			170,913				112,327				230,668				152,241
Accumulated Losses			(176,595	)			(116,553	)			(176,595	)			(116,553	)
Reserves			118				78				118				78
Total Capitalization			(6,284	)			(4,147	)			54,191				35,766

 

 

(1)

The pro forma information reflects the following transactions:

 

	●	On February 12, 2020, we completed a private placement of a Prior Note and a warrant to purchase Ordinary Shares, for a purchase price of US$3.0m, with a principal balance before discount and expenses of US$3.17m. The holder exercised the right to exchange the warrant for a 5% increase in the balance of the February Note, and as a result the warrant was cancelled, and the balance of the Note was increased by approximately US$0.2m. We also did not timely complete an equity financing and did not timely file a registration statement as required by the Prior Note, and as a result the outstanding balance of the note was subjected to a 10% premium for each such occurrence, or an aggregate of approximately US$0.7m. The Prior Note accrues interest at a rate of 20% per annum, compounded daily.
	●	On April 15, 2020, we completed a private placement of a Prior Note and a warrant to purchase Ordinary Shares, for a purchase price of US$1.5m, with a principal balance before discount and expenses of US$1.595m. The holder exercised the right to exchange the warrant for a 5% increase in the balance of the February Note, and as a result the warrant was cancelled, and the balance of the Note was increased by approximately US$0.1m. We also did not timely complete an equity financing and did not timely file a registration statement as required by the Prior Note, and as a result the outstanding balance of the note was subjected to a 10% premium for each such occurrence, or an aggregate of approximately US$0.4m. The Prior Note accrues interest at a rate of 20% per annum, compounded daily.
	●	On July 3, 2020, we agreed to exchange one of our outstanding promissory notes, with an outstanding balance of approximately US$1.36m, for 1,666,667 of our Ordinary Shares.
	●	From February 1, 2020 through October 12, 2020, an aggregate of US$14.5 million (NZ$22.0 million) of the outstanding balance of the Notes issued in October, November and December 2019 and January 2020, representing all of the outstanding balance of such notes, and US$350,000 (NZ$530,000) of the outstanding balance of the Note issued in February 2020 was converted into 37,141,646 Ordinary Shares.

 

 

	●	On July 24, 2020, we completed a private placement of the July Note and the July Purchase Warrant, for a purchase price of US$8.0 million, with an original issue discount of 5%, certain expenses added to the principal balance, and a financing rebate granted to the investor, resulting an initial balance of the July Note of US$8,420,000 (NZ$12,758,000) and net proceeds to us of approximately US$7,200,000 (NZ$10,900,000). The July Note accrues interest at the following rate: (i) for a period of 90 days starting on its issuance date, 2.0% per annum, (ii) for the next 90 days, 10.0% per annum and (iii) thereafter, 15.0% per annum. The July Note has a conversion price of US$0.2424 per share. Between August 25 and September 2, 2020, the Affiliated Holder exercised its right to convert US$1,780,960 in principal amount of the July Note, resulting in the issuance of 7,347,195 Ordinary Shares. On September 3, 2020, we exercised our right to require conversion of the principal amount of the July Note in excess of $2,100,000 and all accrued interest on the July Note. To the extent the Affiliated Holder would have beneficially owned more than 9.9% of our outstanding Ordinary Shares after such required conversion, we issued to the Affiliated Holder “pre-funded” warrants (the “July Pre-Funded Warrants”) in lieu of such shares. As a result, we issued 3,316,521 Ordinary Shares and a July Pre-Funded Warrant to purchase 15,492,344 Ordinary Shares to the Affiliated Holder on September 3, 2020. As of October 12, 2020, the Affiliated Holder had exercised the July Pre-Funded Warrant in full. As of such date, the outstanding balance of the July Note was approximately US$2,105,000 (NZ$3,189,000).
	●	Through October 12, 2020, pursuant to the Sales Agreement with Maxim, we have sold an aggregate of 133,087,150 Ordinary Shares for gross proceeds of US$17,335,810 (NZ$26,266,379) and net proceeds of US$16,815,736 (NZ$25,478,387), after payment to Maxim of an aggregate of US$520,074 (NZ$797,991) in commissions.

 

(2)

In this prospectus certain New Zealand dollar amounts have been translated into United States dollars at the rate as at January 31, 2020 of NZ$1 = US$0.66. Such translations should not be construed as representations that the New Zealand dollar amounts represent, or have been or could be converted into, United States dollars at that or any other rate.

 

The foregoing table does not take into account the conversion or exercise of the convertible securities and warrants set forth in footnote 2 in “Prospectus Supplement Summary – The Offering.”

 

You should read this table in conjunction with our consolidated financial statements as at and for the fiscal year ended January 31, 2020, which are incorporated by reference in this prospectus.

 

 

THE PRIVATE PLACEMENT

 

On October 5, 2020, we entered into a Settlement Agreement with each of the Lenders. Pursuant to the Settlement Agreements, we settled a dispute with the Lenders, in which the Lenders alleged that specific repayment terms of loans made by them were not met as promised and sought repayment of the loans.

 

The Lenders agreed to finally settle the dispute, and granted a general release and waiver of all claims in favor of us and our affiliates, in consideration for Bendon’s issuance to the Lenders of Bendon Conversion Shares with an aggregate value of US$3,789,654. The Bendon Conversion Shares constitute a separate share class in Bendon, confer no voting rights on the Lenders, have no rights to dividends or distributions by Bendon, have the right to receive any dividends declared and paid by our company on an as-converted basis, are redeemable by Bendon at any time at a price of NZ$1,000 (US$662.90) per share and are redeemable by Bendon at a price of NZ$0.01 per share if a Lender’s Settlement Agreement is terminated.

 

The Bendon Conversion Shares are convertible into our Ordinary Shares at a conversion price equal to the closing market price of our Ordinary Shares on the trading day immediately preceding the date that the Lender or Bendon, as applicable, delivers a notice of conversion, subject to a floor of $0.05 per share (which minimum amount is subject to equitable adjustment for any share dividend, any subdivision or combination of share capital or any similar transaction), provided that Nasdaq has completed its review of the offering and not raised any objection thereto. Bendon’s right to require a Lender to convert its Bendon Conversion Shares into our Ordinary Shares commences three months after the date that the registration statement of which this prospectus forms a part becomes effective. Bendon may not require more than US$100,000 Bendon Conversion Shares be converted on any day.

 

The Bendon Conversion shares are not convertible by a Lender or Bendon to the extent that, after giving effect to the issuance of our Ordinary Shares issuable upon such conversion, the Lender or any of its affiliates would beneficially own in excess of 4.9% of the total number of our outstanding Ordinary Shares (the “Maximum Percentage”).

 

Pursuant to the Settlement Agreements, we agreed to file a registration statement of covering the resale of the Ordinary Shares issuable upon conversion of the Bendon Conversion Shares. The registration statement is required to cover 150% of the number of shares issuable upon conversion of Bendon Conversion Shares, assuming for such purpose that a conversion notice had been delivered on the fifth business day prior to the initial filing of the registration statement. We filed the registration statement of which this prospectus forms a part in order to satisfy our requirements under the Settlement Agreements. We must use our best efforts to have the registration statement declared effective as promptly as practicable.

 

 

SELLING SHAREHOLDERS

 

The Ordinary Shares being offered by the Selling Shareholder are those issuable to the Selling Shareholders upon conversion of the Bendon Conversion Shares. For additional information regarding the issuance of the Bendon Conversion Shares, see “The Private Placement” above.

 

As described elsewhere in this prospectus, the Selling Shareholders made certain loans to us and alleged that specific repayment terms of such loans were not met. Except as set forth in this paragraph, and except for the ownership of the Bendon Conversion Shares, the Selling Shareholders have not had any material relationship with us within the past three years. None of the Selling Shareholders is a broker-dealer or an affiliate of a broker-dealer. When we refer to the “Selling Shareholders” in this prospectus, we mean the persons listed in the table below, and the pledgees, donees, permitted transferees, assignees, successors, and others who later come to hold any of the Selling Shareholders’ interests in our securities other than through a public sale.

 

The table below sets forth certain information regarding the Selling Shareholders and their beneficial ownership (as determined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of our Ordinary Shares.

 

The first column lists the name of each Selling Shareholder. The second column lists the number of Ordinary Shares beneficially owned by the Selling Shareholder as of October 12, 2020, based on its beneficial ownership of the Bendon Conversion Shares, and assuming conversion of the Bendon Conversion Shares in full on that date. The Bendon Conversion Shares may not be converted to the extent the Selling Shareholder or any of its affiliates would beneficially own more than the Maximum Percentage after giving effect to such conversion or exercise. The number of shares in the second column reflects these limitations. The third column lists the Ordinary Shares being offered by this prospectus by the Selling Shareholders and does not take into account the limitations on conversion of the Bendon Conversion Shares. The number of Ordinary Shares set forth in the third column equals 150% of the number of shares issuable upon conversion of Bendon Conversion Shares (based on a closing sale price of the Ordinary Shares of $0.12 on October 6, 2020), which represents a good faith estimate of the maximum number of Ordinary Shares underlying such securities. The number of Ordinary Shares that will actually be issued may be substantially more or less than the number of shares being offered by this prospectus. Because the number of shares in the second column is calculated assuming conversion of the Bendon Conversion Shares based on the price of Ordinary Shares as of October 6, 2020, and taking into account the limitations on conversion described above, while the number of shares being offered by this prospectus is a good faith estimate of the maximum number of Ordinary Shares underlying such securities, without taking into account such limitations, the number of shares being offered by this prospectus as set forth in the third column exceeds the number of shares beneficially owned by the Selling Shareholder as set forth in the second column. The fourth column lists the number of Ordinary Shares beneficially owned by the Selling Shareholders, assuming the issuance and resale of all the shares offered by the Selling Shareholders pursuant to this prospectus.

 

We are registering the Ordinary Shares in order to permit the Selling Shareholders to offer the Ordinary Shares for resale from time to time. However, the Selling Shareholders may sell all, some or none of its shares in this offering. See “Plan of Distribution.”

 

Prior to the Offering

Offered Hereby

After the Offering

Shareholder

Ordinary Shares Beneficially Owned

Ordinary Shares

Ordinary Shares Beneficially Owned(1)

Beneficial Ownership Percentage(1)

Timothy D. Connell(2)

8,150,489

13,750,000

27,728

*

William Gibson(3)

8,179,586

33,620,675

1,171

*

 

 

*	Less than 1%.

 

(1)	Based on 158,751,906 Ordinary Shares outstanding as of October 12, 2020, and assuming the issuance and resale of all of the shares offered by the Selling Shareholder pursuant to this prospectus. The number of shares outstanding excludes 75,250,000 shares that have been sold under the Sales Agreement but not yet issued through October 12, 2020, and excludes the shares underlying the convertible securities and warrants set forth in footnote 2 in “Prospectus Supplement Summary – The Offering.”
(2)	The beneficial ownership of Mr. Connell prior to the offering includes (i) 27,728 Ordinary Shares and (ii) the Ordinary Shares underlying the Bendon Conversion Shares held by Mr. Connell, taking into account the limitations on conversion contained therein. As described elsewhere in this prospectus, the actual number of shares issuable upon conversion of the Bendon Conversion Shares held by Mr. Connell may be substantially more or less than the amounts set forth in the table above, because the Bendon Conversion Shares are convertible at a floating conversion price based on the current market price of our Ordinary Shares. The business address of Mr. Connell is 25 Ti Point Road, 0985 Leigh, New Zealand.
(3)	The beneficial ownership of Mr. Gibson prior to the offering includes (i) 1,171 Ordinary Shares and (ii) the Ordinary Shares underlying the Bendon Conversion Shares held by Mr. Gibson and Ivory Castle Limited, an entity controlled by Mr. Gibson, taking into account the limitations on conversion contained therein. As described elsewhere in this prospectus, the actual number of shares issuable upon conversion of the Bendon Conversion Shares held by Mr. Gibson and Ivory Castle may be substantially more or less than the amounts set forth in the table above, because the Bendon Conversion Shares are convertible at a floating conversion price based on the current market price of our Ordinary Shares. The business address of Mr. Gibson is 25a Neal Street, London WC2H 9PR United Kingdom. The business address of Ivory Castle Limited is c/o John Gibson, 73 Bluebird Crescent, Unsworth Heights, 0632 Auckland, New Zealand.

 

 

PLAN OF DISTRIBUTION

 

We are registering the Ordinary Shares issuable upon conversion of the Bendon Conversion Shares to permit the resale of these Ordinary Shares by the Selling Shareholders from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the Selling Shareholders of the Ordinary Shares. We will bear all fees and expenses incident to our obligation to register the Ordinary Shares.

 

The Selling Shareholders may sell all or a portion of the Ordinary Shares held by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the Ordinary Shares are sold through underwriters or broker-dealers, the Selling Shareholders will be responsible for underwriting discounts or commissions or agent’s commissions. The Ordinary Shares may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods:

 

	●	on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
	●	in the over-the-counter market;
	●	in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
	●	through the writing or settlement of options, whether such options are listed on an options exchange or otherwise;
	●	ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
	●	block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
	●	purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
	●	an exchange distribution in accordance with the rules of the applicable exchange;
	●	privately negotiated transactions;
	●	short sales made after the date the registration statement of which this prospectus forms a part is declared effective by the SEC;
	●	broker-dealers may agree with a selling securityholder to sell a specified number of such shares at a stipulated price per share;
	●	a combination of any such methods of sale; and
	●	any other method permitted pursuant to applicable law.

 

We will pay all expenses of the registration of the Ordinary Shares, estimated to be $46,672 in total, including, without limitation, SEC filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, a Selling Shareholder will pay all underwriting discounts and selling commissions, if any.

 

The Selling Shareholders may also sell Ordinary Shares under Rule 144 promulgated under the Securities Act of 1933, as amended, if available, rather than under this prospectus. In addition, the Selling Shareholders may transfer the Ordinary Shares by other means not described in this prospectus. If the Selling Shareholders effect such transactions by selling Ordinary Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the Selling Shareholders or commissions from purchasers of the Ordinary Shares for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). The Selling Shareholders may also loan or pledge Ordinary Shares to broker-dealers that in turn may sell such shares.

 

 

The Selling Shareholders may pledge or grant a security interest in some or all of the Ordinary Shares owned by them and, if a Selling Shareholder defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the Ordinary Shares from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending, if necessary, the list of selling shareholders to include the pledgee, transferee or other successors in interest as a selling shareholder under this prospectus. The Selling Shareholders also may transfer and donate the Ordinary Shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling shareholders for purposes of this prospectus.

 

To the extent required by the Securities Act and the rules and regulations thereunder, the Selling Shareholders and any broker-dealer participating in the distribution of the Ordinary Shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the Ordinary Shares is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of Ordinary Shares being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the Selling Shareholder and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.

 

Under the securities laws of some states, the Ordinary Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the Ordinary Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.

 

There can be no assurance that the Selling Shareholders will sell any or all of the Ordinary Shares registered pursuant to the registration statement of which this prospectus forms a part.

 

The Selling Shareholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the Ordinary Shares by the Selling Shareholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the Ordinary Shares to engage in market-making activities with respect to the Ordinary Shares. All of the foregoing may affect the marketability of the Ordinary Shares and the ability of any person or entity to engage in market-making activities with respect to the Ordinary Shares.

 

Once sold under the registration statement, of which this prospectus forms a part, the Ordinary Shares will be freely tradable in the hands of persons other than our affiliates.

 

Our Ordinary Shares are registered under the Exchange Act and trade on Nasdaq under the symbol “NAKD.”

 

Our Ordinary Shares are issued in registered form. The transfer agent for our Ordinary Shares is Continental Stock Transfer & Trust Company.

 

 

EXPENSES

 

The following table sets forth the costs and expenses payable by us in connection with registering the common stock that may be sold by the Selling Shareholders under this prospectus. All amounts listed below are estimates except the SEC registration fee.

 

Itemized expense		Amount
SEC registration fee		$	672
Legal fees and expenses		$	25,000
Accounting fees and expenses		$	15,000
Transfer agent and registrar fees		$	1,000
Miscellaneous		$	5,000
Total		$	46,672

 

LEGAL MATTERS

 

Graubard Miller, New York, New York, is acting as counsel in connection with the registration of our securities under the Securities Act. HWL Ebsworth Lawyers, Sydney, Australia, will pass upon the validity of the Ordinary Shares offered in this prospectus and on matters of Australia law.

 

EXPERTS

 

The financial statements as of January 31, 2020 and 2019 and for each of the three years in the period ended January 31, 2020, incorporated by reference in this registration statement, have been so included in reliance on the report (which contains an explanatory paragraph relating to our ability to continue as a going concern as described in Note 2 to the financial statements) of BDO Audit Pty Ltd, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

SERVICE OF PROCESS AND ENFORCEMENT OF CIVIL LIABILITIES

 

We are an Australian company and our executive offices are located outside of the United States. Certain of our directors and officers and some of the experts in this prospectus reside outside the United States. In addition, a substantial portion of our assets and the assets of our directors, officers and experts are located outside of the United States. As a result, you may have difficulty serving legal process within the United States upon us or any of these persons. You may also have difficulty enforcing, both in and outside of the United States, judgments you may obtain in U.S. courts against us or these persons in any action, including actions based upon the civil liability provisions of U.S. federal or state securities laws. Furthermore, there is substantial doubt that the courts of Australia would enter judgments in original actions brought in those courts predicated on U.S. federal or state securities laws.

 

WHERE YOU CAN FIND ADDITIONAL INFORMATION

 

We have filed with the SEC a registration statement on Form F-3 with respect to the Ordinary Shares offered hereby. This prospectus, which forms a part of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits thereto. The registration statement includes and incorporates by reference additional information and exhibits. Statements made in this prospectus concerning the contents of any contract, agreement or other document filed as an exhibit to the registration statement are summaries of the material terms of such contracts, agreements or documents, but do not repeat all of their terms. Reference is made to each such exhibit for a more complete description of the matters involved and such statements shall be deemed qualified in their entirety by such reference. The registration statement and the exhibits and schedules thereto filed with the SEC are available without charge on the website maintained by the SEC at http://www.sec.gov that contains periodic reports and other information regarding registrants that file electronically with the SEC.

 

We are subject to the information and periodic reporting requirements of the Exchange Act and we file periodic reports and other information with the SEC. These periodic reports and other information are available on the website of the SEC referred to above. As a “foreign private issuer,” we are exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements to shareholders. Those proxy statements are not expected to conform to Schedule 14A of the proxy rules promulgated under the Exchange Act. In addition, as a “foreign private issuer,” we are exempt from the rules under the Exchange Act relating to short swing profit reporting and liability.

 

 

INCORPORATION BY REFERENCE OF CERTAIN DOCUMENTS

 

The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. This prospectus incorporates by reference our documents listed below:

 

	●	our Annual Report on Form 20-F filed with the SEC on May 8, 2020;
	●	our reports on Form 6-K filed with the SEC on February 6, 2020, February 13, 2020, March 11, 2020, March 12, 2020, April 16, 2020, April 30, 2020, May 15, 2020, June 10, 2020, July 8, 2020, July 27, 2020, July 31, 2020, August 19, 2020, August 20, 2020, August 21, 2020, August 31, 2020, September 25, 2020, October 5, 2020 (two reports) and October 6, 2020; and
	●	the description of our Ordinary Shares contained in our registration statement on Form 8-A (No. 001-38544) filed with the SEC pursuant to Section 12(b) of the Exchange Act.

 

We are also incorporating by reference (i) all subsequent Annual Reports on Form 20-F that we file with the SEC and certain reports on Form 6-K that we furnish to the SEC after the date of the initial filing of and prior to the effectiveness of the registration statement of which this prospectus forms a part, and (ii) all such Annual Reports and reports on Form 6-K that we file after the effectiveness of the registration statement of which this prospectus forms a part, until we file a post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated (in each case, if such Form 6-K states that it is incorporated by reference into this prospectus).

 

Any statement contained in a document filed before the date of this prospectus and incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Any information that we file after the date of this prospectus with the SEC and incorporated by reference herein will automatically update and supersede the information contained in this prospectus and in any document previously incorporated by reference in this prospectus.

 

You should assume that the information appearing in this prospectus and any accompanying prospectus supplement, as well as the information we previously filed with the SEC and incorporated by reference, is accurate as of the dates on the front cover of those documents only.

 

We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the reports or documents that have been incorporated by reference in the prospectus contained in the registration statement not delivered with the prospectus. We will provide these reports or documents upon written or oral request at no cost to the requester. Requests for such documents should be made to Naked Brand Group Limited, Attn: Mr. Justin Davis-Rice, c/o Bendon Limited, 8 Airpark Drive, Airport Oaks, Auckland 2022, New Zealand. Such documents may also be accessed free of charge on our website at www.nakedbrands.com.

 

 

NAKED BRAND GROUP LIMITED

 

47,370,675 of Ordinary Shares

 

, 2020

 

No dealer, salesperson or any other person is authorized to give any information or make any representations in connection with this offering other than those contained in this prospectus and, if given or made, the information or representations must not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any security other than the securities offered by this prospectus, or an offer to sell or a solicitation of an offer to buy any securities by anyone in any jurisdiction in which the offer or solicitation is not authorized or is unlawful.

 

 

PART II

 

INFORMATION NOT REQUIRED IN THE PROSPECTUS

 

Item 8. Indemnification of Directors and Officers.

 

We must indemnify current and past directors and other executive officers of the Company on a full indemnity basis and to the fullest extent permitted by law against all liabilities incurred by the director or officer as a result of their holding office in the Company or a related body corporate.

 

We may also, to the extent permitted by law, purchase and maintain insurance, or pay or agree to pay a premium for insurance, for each director and officer against any liability incurred by the director or officer as a result of their holding office in the Company or a related body corporate.

 

Under the Corporations Act, a company or a related body corporate must not indemnify a person against any liabilities incurred as an officer or auditor of the company if it is a liability:

 

	(a)	owed to the company or a related body corporate;
	(b)	for a pecuniary penalty or compensation order made in accordance with the Corporations Act; or
	(c)	that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith.

 

In addition, a company or related body corporate must not indemnify a person against legal costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred in:

 

	(a)	defending or resisting proceedings in which the person is found to have a liability of the type described above;
	(b)	in defending or resisting criminal proceedings in which the person is found guilty;
	(c)	in defending or resisting proceedings brought by the Australian corporate regulator or a liquidator for a court order if the grounds for making the order are found to have been established; or
	(d)	in connection with proceedings for relief to the person under the Corporations Act in which the Court denies the relief.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Item 9. Exhibits.

 

The exhibits filed herewith or incorporated by reference herein are listed in the Exhibit Index below.

 

Item 10. Undertakings.

 

(a) The undersigned registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.

 

provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Form F-3.

 

(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to the date of first use.

 

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sydney, Australia, on the 15^th day of October, 2020.

 

	NAKED BRAND GROUP LIMITED
	By:	/s/ Justin Davis-Rice
		Justin Davis-Rice
		Executive Chairman

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Justin Davis-Rice and Cheryl Durose as his true and lawful attorney-in-fact, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities to sign any and all amendments including post-effective amendments to this proxy statement/prospectus and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact or his substitute, each acting alone, may lawfully do or cause to be done by virtue thereof.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Name		Title		Date
/s/ Justin Davis-Rice		Executive Chairman and Director (Principal Executive Officer)		October 15, 2020
Justin Davis-Rice
/s/ Cheryl Durose		Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)		October 15, 2020
Cheryl Durose
/s/ Paul Hayes		Director		October 15, 2020
Paul Hayes
/s/ Andrew Shape		Director		October 15, 2020
Andrew Shape
/s/ Kelvin Fitzalan		Director		October 15, 2020
Kelvin Fitzalan

 

Authorized Representative in the United States

 

GRAUBARD MILLER
By:	/s/ Jeffrey M. Gallant
Name:	Jeffrey M. Gallant
Title:	Partner
Date:	October 15, 2020

 

 

EXHIBIT INDEX

 

Exhibit No.		Description
3.1		Constitution of Naked Brand Group Limited (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form F-4/A, File No. 333-223786, filed with the SEC on April 11, 2018).
4.1		Specimen Ordinary Share Certificate (incorporated by reference to Exhibit 4.1 filed with the Company’s Registration Statement on Form F-4/A, File No. 333-223786, filed with the SEC on April 11, 2018).
5.1		Opinion of HWL Ebsworth Lawyers.
23.1		Consent of BDO Audit Pty Ltd.
23.2		Consent of HWL Ebsworth Lawyers (included in Exhibit 5.1).
24.1		Power of attorney (included on signature page).

 

 

 

Exhibit 5.1

 

 

Our Ref: MYN:917209

 

15 October 2020

 

The Directors

Naked Brand Group Limited

Building 7C, 2 Huntley Street

Alexandria NSW 2015

Australia

 

Dear Sirs

 

Naked Brand Group Limited

 

We have been requested to provide a legal opinion in respect to the issue by Naked Brand Group Limited (Company) of ordinary shares in accordance with the Company’s Form F-3 (Form F3) to be filed with the United States Securities and Exchange Commission (SEC) pursuant to the Securities Exchange Act of 1934 covering the resale by the Selling Shareholders (as defined in the Form F3) of up to 47,370,675 ordinary shares, no par value, of the Company (Ordinary Shares).

 

1.

Documents

 

We have examined and relied on copies, drafts or conformed copies of the following documents:

 

	(a)	a draft of the Form F3 (excluding exhibits);
	(b)	a search in respect of the Company of the companies database maintained by the Australian Securities and Investments Commission as at 15 October 2020;
	(c)	the Certificate of Registration dated 11 May 2017, which certifies that the Company is a registered company under the Corporations Act 2001 (Cth) and is taken to be registered in the State of New South Wales in Australia;
	(d)	the Certificate of Registration on Change of Name dated 13 June 2018, which certifies that the Company changed its name to Naked Brand Group Limited on the date of such certificate;
	(e)	the Constitution of the Company;
	(f)	a special resolution of the sole shareholder of the Company dated 19 June 2018 whereby the Company adopted the Constitution referred to in paragraph 1(e) above;

 

Adelaide Brisbane Canberra Melbourne Norwest Perth Sydney   ABN 37 246 549 189

 

Level 14, Australia Square, 264-278 George Street, Sydney NSW 2000 Australia		Telephone +61 2 9334 8555
GPO Box 5408, Sydney NSW 2001 Australia		Facsimile 1300 369 656 (Australia) +61 2 8507 6584 (International)
DX 129 Sydney		hwlebsworth.com.au

 

 

	(g)	resolutions of directors of the Company relating to matters described in the Form F3;
	(h)	a settlement agreement between the Company, Bendon Limited and William G Gibson and Ivory Castle Limited dated 5 October 2020 and a settlement agreement between the Company, Bendon Limited and Timothy D. Connell dated 5 October 2020 (Settlement Agreements).

 

2.

Opinion

 

On the basis of the assumptions, qualifications and terms set out in this opinion, we are of the opinion that:

 

	(a)	(incorporation) the Company is a corporation duly registered and validly existing under the Corporations Act 2001 (Cth) and is capable of suing and being sued in its corporate name; and
	(b)	(Ordinary Shares validly issued) when the Ordinary Shares have been issued, sold and paid in accordance with the Constitution of the Company and Settlement Agreements and registered in the Register of Members of the Company, such Ordinary Shares will be validly issued, fully paid and non-assessable.

 

3.	Assumptions

 

We have assumed:

 

	(a)	the authenticity of all signatures, seals, duty stamps and markings;
	(b)	the completeness, and conformity to originals, of all non-original or incomplete documents submitted to us;
	(c)	the Register of Members of the Company is up to date and has been correctly completed in accordance with the Constitution of the Company and the Corporations Act 2001 (Cth);
	(d)	the board of directors of the Company has approved the allotment and issue of the Ordinary Shares in accordance with the Constitution of the Company;
	(e)	upon issue, each holder of the Ordinary Shares will have fully paid the amount payable to the Company for their Ordinary Shares;
	(f)	that any document recording the authorisation of the transactions contemplated by the Form F3, including the issue of the Ordinary Shares, is a true, complete and accurate record of an authorisation which is valid in all respects;
	(g)	that all authorisations, approvals or licences required under any law (including any Relevant Law (as defined below)) for any party (other than the Company) to enter into or to perform any of its obligations under a transaction contemplated by the Form F3 have been obtained, remain valid and subsisting and have been complied with;

 

 

	(h)	that no law or official directive of any jurisdiction, other than a Relevant Jurisdiction (as defined below), affects any of the opinions expressed;
	(i)	that the implementation of the transactions or matters contemplated by the Form F3 will not involve an illegal purpose under any law, including any Relevant Law (as defined below);
	(j)	the Ordinary Shares have been, or will be, duly registered, and will continue to be registered, in the Company’s Register of Members;
	(k)	the details revealed by our search of public registers maintained by governmental or other regulatory authorities are true and correct and up to date at the date of our search and have been properly and accurately recorded in those registers by those authorities. We note that ASIC expressly disclaims any liability arising from the use of its service;
	(l)	that the Form F3 has not been amended in any material respect to the draft provided to us and that it was duly filed with the SEC;
	(m)	insofar as any obligation under any document examined is to be performed in any jurisdiction other than a Relevant Jurisdiction (as defined below), its performance will not be illegal or unenforceable under the law of that jurisdiction;
	(n)	that the formalities for execution required by the law of the place of execution of each document examined have or will be complied with.

 

4.	Qualifications

 

This opinion is subject to the following qualifications:

 

	(a)	this opinion is given only in respect to the laws of the Commonwealth of Australia in force as at 9:00am (AEDT) on the date of this opinion (Relevant Jurisdiction);
	(b)	the date of this opinion is 15 October 2020; and
	(c)	we express no opinion as to:

 

	(i)	the laws of any jurisdictions other than the laws of the Relevant Jurisdiction (Relevant Law);
	(ii)	the implications of any pending or foreshadowed legislative amendment or proposal in the Relevant Jurisdiction;
	(iii)	factual or commercial matters; or
	(iv)	taxation, including the effect of any Relevant Laws relating to taxation (including, without limitation, the imposition or payment of any stamp duty in connection with the transactions contemplated in the Form F3).

 

 

5.	Benefit and reliance

 

5.1	This opinion is issued to the Company only for the Company’s sole benefit and may not, without our prior written consent, be:

 

	(a)	used or relied on by another person or used or relied upon for any other purpose. We expressly exclude any duty to any person other than the addressee in relation to this opinion, unless otherwise agreed by us in writing;
	(b)	transmitted or disclosed to another person, except:

 

	(i)	to persons who in the ordinary course of the Company’s business have access to the Company’s papers and records on the basis that they will make no further disclosure;
	(ii)	if required by law or in accordance with an official directive; or
	(iii)	in connection with any litigation in relation to the documents mentioned in this document; or

 

(c)

filed with a government or other agency or person or quoted or referred to in a public document.

 

5.2	This opinion is strictly limited to the matters stated in it and does not apply by implication to other matters.
5.3	No assumption or qualification in this opinion limits any other assumption or qualification in it.
5.4	We have not provided, and are not required to provide, advice on the legal effect of any of the assumptions or qualifications in this opinion. Persons entitled to rely on this opinion should obtain their own legal advice on the effect, completeness and extent of application of those assumptions and qualifications.

 

This opinion is governed by the laws of New South Wales, Australia. We are under, and assume, no obligation to inform you of, or advise you on, any future changes to these or any other laws.

 

We hereby consent to the use of this opinion as an exhibit to the Form F3, to the use of our name as your counsel, and to all references made to us in the Form F3. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations promulgated thereunder.

 

Yours faithfully

 

 

HWL Ebsworth Lawyers

Partner: Matthew Nelson

 

 

 

Exhibit 23.1

 

Tel: +61 2 9251 4100 Fax: +61 2 9240 9821 www.bdo.com.au

Level 11, 1 Margaret St Sydney NSW 2000 Australia

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

Naked Brand Group Limited

 

We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement on our report dated May 8, 2020, relating to the consolidated financial statements and schedules of Naked Brand Group Limited, appearing in the Company’s Form 20-F, for the year ended January 31, 2020.

 

We also consent to the reference to us under the heading “Experts” in such Registration Statement.

 

BDO Audit Pty Ltd

 

Tim Aman
Director

 

Sydney, Australia

October 15, 2020

 

BDO Audit Pty Ltd ABN 33 134 022 870 is a member of a national association of independent entities which are all members of BDO Australia Ltd ABN 77 050 110 275, an Australian company limited by guarantee. BDO Audit Pty Ltd and BDO Australia Ltd are members of BDO International Ltd, a UK company limited by guarantee, and form part of the international BDO network of independent member firms.