AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 19, 2005
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ICONIX BRAND GROUP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 11-2481903
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of Incorporation)
215 West 40th Street
New York, New York 10018
(212) 730-0030
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(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
Neil Cole, Chief Executive Officer
Iconix Brand Group, Inc.
215 West 40th Street
New York, New York 10018
(212) 730-0030
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(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Robert J. Mittman, Esq.
Ethan Seer, Esq.
Blank Rome LLP
405 Lexington Avenue
New York, New York 10174
Telephone (212 885-5000
Facsimile: (212) 885-5001
Approximate date of proposed commencement of sale to public: As soon as
practicable after this Registration Statement becomes effective.
If the 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, please 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, check the following box and list the
Securities Act registration statement number of the earlier 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 for the same
offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. [_]
Calculation of Fee
----------------------------- ------------------- --------------------------- --------------------------- -------------------
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered aggregate price per unit aggregate offering price registration fee
----------------------------- ------------------- --------------------------- --------------------------- -------------------
Common Stock $.001 3,375,000 (3) $ 9.195 (4) $ 31,033,125 (4) $ 3,652.60
par value (1)(2)
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(1) Includes 2,175,000 shares of the registrant's common stock and
1,200,000 shares of the registrant's common stock issuable upon
exercise of outstanding warrants. All of the shares of common stock
being registered hereby are being offered for the accounts of selling
stockholders who acquired such shares or warrants to acquire shares in
private transactions. Except as set forth in the footnotes below, no
other shares of the registrant's common stock are being registered
pursuant to this registration statement.
(2) Includes preferred share purchase rights. Prior to the occurrence of
certain events, the preferred share purchase rights will not be
evidenced separately from the common stock.
(3) Pursuant to Rule 416 of the Securities Act of 1933, there are also
being registered such additional shares as may be offered or issued to
the selling stockholder to prevent dilution resulting from stock
dividends, stock splits or similar transactions.
(4) Estimated solely for purpose of calculating the registration fee.
Pursuant to Rule 457(c) of the Securities Act of 1933, as amended, the
registration fee has been calculated based upon the average of the high
and low prices, as reported by Nasdaq, for the registrant's common
stock on September 12, 2005.
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, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
PROSPECTUS
ICONIX BRAND GROUP, INC.
3,375,000 shares of Common Stock
The selling stockholders listed on page 8 of this prospectus are
offering for resale up to 3,375,000 shares of common stock of Iconix Brand
Group, Inc. The common stock may be offered from time to time by the selling
stockholders through ordinary brokerage transactions in the over-the-counter
markets, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at negotiated prices and in other ways as described in the
"Plan of Distribution".
We will not receive any of the proceeds from the sale of the shares of
common stock by the selling stockholders.
Our common stock is listed on the Nasdaq National Market under the
symbol "ICON" On September 16, 2005, the last sale price of our common stock as
reported by Nasdaq was $9.20 per share.
Investing in our common stock involves a high degree of risk. For more
information, see "Risk Factors" beginning on page 3.
Neither the Securities and Exchange Commission nor any state 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.
The date of this prospectus is ________, 2005
Table of Contents
Page
Forward-looking Statements........................................................................................3
The Company.......................................................................................................3
Risk Factors......................................................................................................3
Use of Proceeds...................................................................................................8
Selling Stockholders..............................................................................................8
Plan of Distribution..............................................................................................9
Legal Matters....................................................................................................11
Experts..........................................................................................................11
Where You Can Find More Information..............................................................................12
Incorporation of Certain Documents By Reference..................................................................12
2
Forward-looking Statements
Certain statements in this Registration Statement or the documents
incorporated by reference in this Registration Statement constitute
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. These forward-looking statements involve known
and unknown risks, uncertainties and other factors which may cause the actual
results, performance or achievements of Iconix Brand Group, Inc. to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among others, those set forth under the caption "Risk Factors." The words
"believe," "expect," "anticipate," "intend," and "plan" and similar expressions
identify forward-looking statements. Readers are cautioned not to place undue
reliance on any of these forward-looking statements, which speak only as of the
date of the statement was made. Iconix undertakes no obligation to update any
forward-looking statement.
The Company
Iconix is in the business of licensing the CANDIE'S(R), BONGO(R),
BADGLEY MISCHKA(R), JOE BOXER(R) and RAMPAGE(R) trademarks on a variety of young
women's footwear, apparel and fashion products. Through its wholly owned
subsidiary, Bright Star Footwear, LLC, the Company also arranges for the
manufacture of footwear products for mass market and discount retailers and
receives a commission on the sales of these products.
Iconix was incorporated under the laws of the State of Delaware in
1978. Its principal executive offices are located at 215 West 40th Street, New
York, New York 10018, and its telephone number is (212) 730-0300.
Unless the context requires otherwise, reference in this prospectus to
"we", "us" ,"our", "Iconix", or "Company" refers to Iconix Brand Group, Inc. and
its subsidiaries.
Risk Factors
We operate in a changing environment that involves numerous known and
unknown risks and uncertainties that could materially adversely affect our
operations. The following highlights some of the factors that have affected, and
in the future could affect, our operations.
We have incurred losses during recent fiscal years and future losses could
negatively affect our cash flows and business operations.
Although we recorded net income of $3.3 million for the six months
ended June 30, 2005 (including a non-cash tax benefit of $1.8 million) and
$241,000 in the 11-month period ended December 31, 2004, in the fiscal year
ended January 31, 2004 we sustained net losses of $11.3 million, and net losses
of $3.9 million, $2.3 million and $8.2 million during our fiscal years ended
January 31, 2003, 2002 and 2001, respectively. We cannot guarantee that we will
not incur losses in the future.
3
We are no longer directly engaged in the design, manufacture, distribution or
sale of branded apparel, footwear or other fashion products and, consequently,
our revenues are dependent on the success of certain licensees of those rights.
Although the licensing agreements for our brands usually require the
advance payment to us of certain fees and provide for certain guaranteed minimum
royalty payments to us, the failure by the licensees to satisfy their
obligations under the agreements could result in the termination of the license
agreements. Moreover, during the terms of the license agreements we are
substantially dependent upon the abilities of the licensees to maintain the
quality, marketability and consumer recognition of the licensed products bearing
our brands. In addition, failure by the licensees to meet their production,
manufacturing or distribution requirements could negatively impact their sales
and resulting royalty payments to us which, in turn, would materially adversely
affect our revenues and business operations. Moreover, the failure by licensees
to meet their financial obligations to us could jeopardize our ability to meet
the debt service coverage ratio in connection with the asset-backed notes issued
by one of our subsidiaries which would give the note holders the right to
foreclose on our trademarks and other related intellectual property assets,
which are the security for the debt.
Our business is dependent on continued market acceptance of the products of our
licensees that bear our trademarks and of the CANDIE'S, BONGO, BADGLEY MISCHKA,
JOE BOXER and RAMPAGE trademarks.
Our ability to achieve continued market acceptance of products
utilizing our trademarks as well as market acceptance of any future products
that may be offered by us or by our licensees that bear our trademarks, is
subject to a high degree of uncertainty. Our ability or the ability for our
licensees to achieve market acceptance by new customers or continued market
acceptance by existing or past customers may require substantial additional
marketing efforts and the expenditure of significant funds by us to maintain a
demand for such products. Additional marketing efforts and expenditures may not
result in increased market acceptance of products of our licensees or increased
sales of such products. We are materially dependent on the sale of products
bearing our trademarks for a significant portion of our revenues. Although our
licensees guarantee minimum net sales and minimum guaranteed royalties to us, a
failure of our trademarks or products to achieve or maintain market acceptance
could reduce our licensing revenues, thereby negatively impacting cash flows.
We had a working capital deficit at June 30, 2005, have incurred a substantial
amount of indebtedness and to the extent that cash flow from our continuing
operations is insufficient to meet our debt obligations, we may be required to
seek additional financing to satisfy our obligations or lose title to our
trademarks.
As of the date of this prospectus there is approximately $103 million principal
outstanding on seven-year asset backed notes issued by one of our subsidiaries,
IP Holdings, LLC, referred to as IPH. The notes were issued in four
transactions, $ 20 million in August 2002, $2.6 million in March 2004, $45
million in July 2005 in connection with our acquisition of the JOE BOXER brand
from Joe Boxer, LLC and $40 million in September 2005. Of the additional debt
incurred in September 2005, $28 million was used in connection with our
acquisition of the RAMPAGE brand on September 16, 2005 and the remaining $12
4
million is available to us for potential future acquisitions. We will be
required to repay the $12 million in the last quarter of 2005 if we do not use
the funds in connection with an acquisition. In the event that there is a
default in the payment on the notes, the note holders have a security interest
in our trademarks and have the right to foreclose on those trademarks. In
addition, in connection with our acquisition in April 2002 from Sweet
Sportswear, Inc., referred to as Sweet, of the remaining equity interests in
Unzipped Apparel, LLC, referred to as Unzipped, the joint venture formed with
Sweet, we issued to Sweet $11.0 million principal amount of senior subordinated
notes the amount of which have been reduced to approximately $2.8 million at
June 30, 2005 as a result of certain shortfalls in the net income of Unzipped
that Sweet guaranteed under the terms of an agreement under which it managed
Unzipped until August 2004. As of the date of this prospectus we are involved in
litigation with Sweet and certain of its affiliates with respect to certain
matters pertaining to Unzipped. Moreover, we had a working capital deficit of
approximately $3.3 million at June 30, 2005. We believe that we will generate
sufficient revenues from our licensing operations to satisfy our obligations for
the foreseeable future. However, in the event that projected cash flow proves to
be insufficient to satisfy our cash requirements including our debt obligations,
we may be required to seek additional funds through, among other means, public
or private equity or debt financing, which may result in dilution to our
stockholders, or if we were to default on our obligations to the holders of the
asset backed notes they could foreclose on our trademarks.
A substantial portion of our licensing revenues are concentrated in two
retailers.
Two of our largest licenses are each concentrated at a single retailer. The
CANDIE'S brand is concentrated at Kohl's Department Stores, Inc., which by the
end of 2006 will be the exclusive licensee for all product categories, and the
JOE BOXER brand, which has an exclusive license with Kmart for all core product
categories. Because we are dependent on these two licensees for a substantial
portion of our licensing revenue, if Kohl's or Kmart (which came out of
bankruptcy in May 2003 and is currently owned by Sears Holding Corp.) had
financial difficulties or ceased to operate, it would negatively impact our
revenue and cash flows.
A recession in the fashion industry or rapidly changing fashion trends could
harm our operating results.
The fashion industry is cyclical, with purchases of apparel and related
goods tending to decline during recessionary periods when disposable income is
low. A poor general economic climate could have a negative impact on our and our
licensees' ability to compete for limited consumer resources. Moreover, our
future success depends in substantial part on our and our licensees' ability to
anticipate and respond to changing consumer demands and fashion trends in a
timely manner. The footwear and wearing apparel industries are generally subject
to constantly changing fashion trends. If we or our licensees misjudge the
market for a particular product or product line, it may result in an increased
inventory of unsold and outdated finished goods, which could increase the
affected licensee's operating costs without a corresponding increase in
revenues.
5
Our licensees are subject to risks and uncertainties of foreign manufacturing
that could interrupt operations or increase operating cost thereby impacting
their ability to deliver goods to the market.
Substantially all of the products sold by our licensees are
manufactured overseas. We and our licensees are subject to various risks
inherent in foreign manufacturing, including fluctuations in foreign currency
exchange rates; shipping delays; and international political, regulatory, and
economic developments, all of which can have a significant impact on the
licensee's operating costs and consequently, our earnings.
Our licensees also import certain finished products and assume all risk
of loss and damage once their suppliers ship these goods. If these goods are
destroyed or damaged during shipment it could impact our revenues as a result of
its licensees' delay in delivering finished products to customers.
Because of the intense competition in our markets and the strength of our
competitors, we and our licensees may not be able to continue to compete
successfully.
The apparel, footwear and fashion industries are extremely competitive
in the United States and our licensees face intense and substantial competition
for our product lines. In general, competitive factors include quality, price,
style, name recognition and service. In addition, the presence in the
marketplace of various fads and the limited availability of shelf space can
affect competition. Many competitors of our licensees have greater financial,
distribution, marketing and other resources than they have and have achieved
significant name recognition for their brand names. We may not be able to
continue to compete successfully in the market with respect to the licensing
arrangements. Our licensees may be unable to successfully compete in the markets
for such products.
We may not be able to protect our proprietary rights or avoid claims that we
infringe on the proprietary rights of others.
We own trademark registrations for CANDIE'S, BONGO, BADGLEY MISCHKA,
JOE BOXER and RAMPAGE, among others, and believe that our trademarks have
significant value and are important to the marketing of our products. To the
extent that the trademarks owned or used by us are deemed to violate the
proprietary rights of others, or in the event that these trademarks would not be
upheld if challenged, we would, in either such event, be prevented from using
the trademarks, which could have an adverse effect on us. In addition, we may
not have the financial resources necessary to enforce or defend trademarks owned
or used by us.
We are dependent upon our key executives and other personnel, whose loss would
adversely impact our business.
Our success is largely dependent upon the efforts of Neil Cole, our
President, Chief Executive Officer and Chairman, and certain other key
executives. Although we have entered into an employment agreement with Mr. Cole
that expires in December 2007, the loss of his and/or other key executive's
services would have a material adverse effect on our business and prospects. Our
success is also dependent upon our ability to hire and retain additional
qualified sales and marketing personnel in connection with the design, marketing
and distribution of our products as well as our ability to hire and retain
administrative personnel. We may not be able to hire or retain such necessary
personnel.
6
Provisions in our charter and share purchase rights plan may prevent an
acquisition of Iconix.
Certain provisions of our Certificate of Incorporation and our Share
Purchase Rights Plan could have the effect, either alone or in combination with
each other, of making more difficult, or discouraging an acquisition of our
company deemed undesirable by our Board of Directors. Our Certificate of
Incorporation provides for the issuance of up to 75,000,000 shares of common
stock and 5,000,000 shares of preferred stock. As of the date of this prospectus
there were approximately 33,150,000 shares of our common stock and no shares of
preferred stock outstanding. Additional shares of our common stock and preferred
stock are therefore available for future issuance without stockholder approval.
The Share Purchase Rights Plan, commonly known as a "poison pill," states that,
in the event than an individual or entity acquires 15% of the outstanding shares
of our stockholders other than the acquirer may purchase additional shares of
our common stock for a fixed price. The existence of authorized but un-issued
capital stock, together with the existence of the Share Purchase Rights Plan,
could have the effect of discouraging an acquisition of us.
We are subject to certain litigation that could harm us.
We are currently a plaintiff and cross-defendant in a litigation
pending in California state court involving Unzipped, and a defendant in a
litigation pending in federal district court in New York involving a former
supplier. Our financial condition could be adversely impacted if we are required
to pay the monetary damages sought by the cross-complainants in the California
action and the plaintiff in the New York action, or if it is adjudicated that
the contractual rights concerning Unzipped are invalid.
The market price of our common stock may be volatile.
The market price of our common stock may be highly volatile. Among
other things, disclosures of our operating results, announcements of various
events by us or our competitors and the development and marketing of new
products may cause the market price of our common stock to change significantly
over short periods of time. Sales of shares under this prospectus may have a
depressive effect on the market price of our common stock.
Future sales of shares of our common stock could affect the market price of our
common stock and our ability to raise additional capital.
We have previously issued a substantial number of shares of common
stock, which are eligible for resale under Rule 144 of the Securities Act of
1933, as amended, referred to as the Securities Act, and may become freely
tradable. We have also registered a substantial number of shares of common stock
that are issuable upon the exercise of options and warrants and have previously
registered for resale a substantial number of restricted shares of common stock
held by certain selling stockholders, which are in addition to the shares of our
common stock being offered by the selling stockholders pursuant to this
Prospectus. If holders of options or warrants choose to exercise their purchase
rights and sell shares of common stock in the public market, or if holders of
currently restricted shares choose to sell such shares in the public market
under Rule 144 or otherwise, the prevailing market price for our common stock
may decline. Future public sales of shares of common stock may adversely affect
the market price of our common stock or our future ability to raise capital by
offering equity securities.
7
Use of Proceeds
We will not receive any proceeds from the sale of common stock by the
selling stockholders named in this prospectus.
We have agreed to pay certain expenses in connection with the
registration of the shares being offered by the selling stockholders.
Selling Stockholders
Based on information provided by the selling stockholders, the
following table sets forth certain information regarding the selling
stockholders:
The table below assumes for calculating each selling stockholder's
beneficial and percentage ownership that options, warrants or convertible
securities that are held by such stockholder (but not held by any other person)
and are exercisable within 60 days from the date this prospectus have been
exercised or converted. The table also assumes the sale of all of the shares
being offered by the selling stockholders pursuant to this prospectus.
Common Stock Beneficially
Owned After the Offering
Number of Shares of -----------------------------
Common Stock Percent of
Beneficially Owned Shares Number Outstanding
Selling Security Holders Prior to the Offering Being Offered of Shares Shares
---------------------------------------- ----------------------- ----------------- ----------- ---------------
D'Loren Realty LLC 900,000 (2) 900,000 (2)(3) 0 (2) 0
d/b/a Content Holdings (1)
James Haran 100,000 100,000(3) 0 0
Joseph Sweedler 644,259 320,682 323,577 *
William Sweedler 1,300,679 535,422 765,257 2.3
David Sweedler 1,075,679 535,422 540,257 1.6
Alan Rummelsburg 931,872 463,842 468,030 1.4
Arnold Suresky 412,250 206,125 206,125 *
Nicholas Graham 170,261 113,507 56,754 *
James D. Tate 185,750 70,300(3) 159,000 *
J. Kenneth Tate 235,750 70,300(3) 209,000 *
Javier Holtz 8,750 31,500(3) 0 *
Barry & Susan Somerstein 15,500 9,000(3) 13,000 *
Mark & Lori Libow 2,500 9,000(3) 0 0
Mark Somerstein 6,000 3,600(3) 5,000 *
Richard Kohn 1,000 3,600(3) 0 0
Linda Tate-Best 750 2,700(3) 0 0
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* Less than one percent
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(1) Mr. Robert D'Loren, the President of D'Loren Realty LLC, has sole voting
and investment power with respect to the shares being offered by D'Loren
Realty, LLC pursuant to this prospectus. Mr. D'Loren is a former board
member of the registrant and president and majority stockholder of UCC
Consulting Corp., which has entered into an exclusive investment banking
services agreement with Iconix.
(2) Does not include 44,391 shares of Iconix common stock owned by Robert
D'Loren or options to purchase 150,000 shares of Iconix common stock owned
by Mr. D'Loren.
(3) Represents shares issuable upon exercise of warrants previously issued by
Iconix to the selling stockholders.
Messrs. David, Joseph and William Sweedler, Rummelsberg, Suresky and
Graham received their shares in connection with the sale of certain assets of
Joe Boxer, LLC to Iconix. William Sweedler serves as Executive Vice President of
Iconix and President of its Joe Boxer division.
James D Tate, J. Kenneth Tate, Javier Holtz, Barry & Susan Somerstein,
Mark & Lori Libow, Mark Somerstein, Richard Kohn and Linda Tate-Best are all
stockholders of Bongo Apparel, Inc., referred to as BAI. BAI is the licensee of
two licensees from IPH. BAI also has managed the operations of our Unzipped
subsidiary since August 5, 2004.
Plan of Distribution
We have been advised that the selling stockholders, which may include
pledgees, donees, transferees or other successors-in-interest who have received
shares from the selling stockholders after the date of this prospectus, may from
time to time, sell all or a portion of the shares in privately negotiated
transactions or otherwise, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to these market prices or at
negotiated prices.
All costs, expenses and fees in connection with the registration of the
shares offered by this prospectus other than any counsel for the selling
stockholders, shall be borne by us. Brokerage costs, if any, attributable to the
sale of shares will be borne by the selling stockholders.
The shares may be sold by the selling stockholders by one or more of
the following methods:
o block trades in which the broker or dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
shares as principal to facilitate the transaction;
9
o purchases by a broker or dealer as principal and resale by such broker
dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o over-the counter distribution in accordance with the rules of the
Nasdaq National Market;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
o through the writing of put or call options on the shares or other
hedging transactions (including the issuance of derivative
securities), whether the options or other derivative securities are
listed on an option or other exchange or otherwise;
o privately negotiated transactions;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The transactions described above may or may not involve brokers or
dealers.
The selling stockholders will not be restricted as to the price or
prices at which the selling stockholder may sell its shares. Sales of shares by
the selling stockholders may depress the market price of our common stock since
the number of shares which may be sold by the selling stockholder may be
relatively large compared to the historical average weekly trading of our common
stock. Accordingly, if the selling stockholders were to sell, or attempt to
sell, all of such shares at once or during a short time period, we believe such
a transaction could adversely affect the market price of our common stock.
From time to time the selling stockholders may pledge its shares under
margin provisions of customer agreements with its brokers or under loans or
other arrangements with third parties. Upon a default by the selling
stockholders, the broker or such third party may offer and sell any pledged
shares from time to time.
In effecting sales, brokers and dealers engaged by the selling
stockholders may arrange for other brokers or dealers to participate in the
sales as agents or principals. Brokers or dealers may receive commissions or
discounts from the selling stockholders or, if the broker-dealer acts as agent
for the purchaser of such shares, from the purchaser in amounts to be
negotiated, which compensation as to a particular broker dealer might be in
excess of customary commissions which are not expected to exceed those customary
in the types of transactions involved. Broker-dealers may agree with the selling
stockholders to sell a specified number of such shares at a stipulated price per
share, and to the extent the broker-dealer is unable to do so acting as agent
for a selling stockholder, to purchase as principal any unsold shares at the
price required to fulfill the broker-dealer commitment to such selling
stockholder. Broker-dealers who acquire shares as principal may then resell
those shares from time to time in transactions
10
o in the over-the counter market or otherwise;
o at prices and on terms prevailing at the time of sale;
o at prices related to the then-current market price; or
o in negotiated transactions.
These resales may involve block transactions or sales to and through
other broker-dealers, including any of the transactions described above. In
connection with these sales, these broker-dealers may pay to or receive from the
purchasers of those shares commissions as described above. The selling
stockholders may also sell the shares in open market transactions under Rule 144
under the Securities Act, rather than under this prospectus.
The selling stockholders and any broker-dealers or agents that
participate with the selling stockholders in sales of the shares may be deemed
to be "underwriters" within the meaning of the Securities Act in connection with
these sales. In this event, any commissions received by these broker-dealers or
agents and any profit on the resale of the shares purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act.
We have agreed to indemnify certain of the selling stockholders against
certain liabilities under the Securities Act. The selling stockholders may agree
to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act.
The selling stockholders are subject to applicable provisions of the
Securities Exchange Act of 1934 and the SEC's rules and regulations, including
Regulation M, which provisions may limit the timing of purchases and sales of
the shares by the selling stockholders.
In order to comply with certain states' securities laws, if applicable,
the shares may be sold in those jurisdictions only through registered or
licensed brokers or dealers. In certain states the shares may not be sold unless
the shares have been registered or qualified for sale in such state, or unless
an exemption from registration or qualification is available and is obtained.
Legal Matters
Blank Rome LLP of New York, New York will pass upon the validity of the
shares of common stock being offered by this prospectus.
Experts
The financial statements and schedules incorporated by reference in
this prospectus have been audited by BDO Seidman, LLP, an independent registered
public accounting firm, to the extent and for the periods set forth in their
reports incorporated herein by reference, and are incorporated herein in
reliance upon such reports given upon the authority of said firm as experts in
auditing and accounting.
11
Where You Can Find More Information
We are subject to the informational requirements of the Securities
Exchange Act of 1934 and we file reports and other information with the SEC.
You may read and copy any of the reports, statements, or other
information we file with the SEC at the SEC's Public Reference Section at 100 F
Street, N.E., Washington, D.C. 20549 at prescribed rates. Information on the
operation of the Public Reference Room may be obtained by calling the SEC at
1-800-SEC-0330. The SEC maintains a Web site at http://www.sec.gov that contains
reports, proxy statements and other information regarding issuers that file
electronically with the SEC. The Nasdaq Stock Market maintains a Web site at
http://www.nasdaq.com that contains reports, proxy statements and other
information filed by us.
Incorporation of Certain Documents By Reference
We have filed with the SEC, Washington, D.C., a registration statement
on Form S-3 under the Securities Act of 1933, covering the securities offered by
this prospectus. This prospectus does not contain all of the information that
you can find in our registration statement and the exhibits to the registration
statement. Statements contained in this prospectus as to the contents of any
contract or other document referred to are not necessarily complete and in each
instance such statement is qualified by reference to each such contract or
document filed or incorporated by reference as an exhibit to the registration
statement.
The SEC allows us to "incorporate by reference" the information we file
with them. This means that we can disclose important information to you by
referring you to other documents that are legally considered to be part of this
prospectus, and later information that we file with the SEC will automatically
update and supersede the information in this prospectus and the documents listed
below. We incorporate by reference the documents listed below, and any future
filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the selling stockholders sell all the
shares.
1. Our Report on Form 10-K for the period ended December 31, 2004;
2. Our Current Report on Form 8-K filed with the SEC on January 31, 2005;
3. Our Current Report on Form 8-K filed with the SEC on March 11, 2005;
4. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2005;
5. Our Current Report on Form 8-K filed with the SEC on June 10, 2005;
6. Our Current Report on Form 8-K filed with the SEC on July 28, 2005;
7. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2005;
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8. The description of our common stock and our preferred share purchase
rights contained in our registration statements on Form 8-A filed with
the SEC and any amendments thereto; and
9. All documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 subsequent to the date of
this prospectus and prior to the termination of this offering, except
the Compensation Committee Report on Executive Compensation and the
performance graph included in any Proxy Statement filed by us pursuant
to Section 14 of the Exchange Act.
You may request a copy of these filings, at no cost, by writing or
telephoning us at Iconix Brand Group, Inc., 215 West 40th Street, New York, New
York 10018, telephone number (212) 730-0030.
We have not authorized anyone else to provide you with information
different from that contained or incorporated by reference in this prospectus.
This prospectus is not an offer to sell nor is it a solicitation of an offer to
buy any security in any jurisdiction where the offer or sale is not permitted.
Neither the delivery of this prospectus nor any sale made under this prospectus
shall, under any circumstances, imply that there has been no change in our
affairs since the date of this prospectus or that the information contained in
this prospectus or incorporated by reference herein is correct as of any time
subsequent to its date.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses payable by the Registrant in connection with the issuance
and distribution of the securities being registered (estimated except for the
SEC Registration fee)are as follows:
SEC Registration Fee $ 3,652.60
Accounting Fees and Expenses $ 5,000.00
Legal Fees and Expenses $15,000.00
Miscellaneous Expenses $ 6,347.40
Total $30,000.00
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
("GCL") provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the GCL permits a corporation, by so providing in its
certificate of incorporation, to eliminate or limit director's liability to the
corporation and its shareholders for monetary damages arising out of certain
alleged breaches of their fiduciary duty. Section 102(b)(7) of the GCL provides
that no such limitation of liability may affect a director's liability with
respect to any of the following: (i) breaches of the director's duty of loyalty
to the corporation or its shareholders; (ii) acts or omissions not made in good
faith or which involve intentional misconduct of knowing violations of law;
(iii) liability for dividends paid or stock repurchased or redeemed in violation
of the GCL; or (iv) any transaction from which the director derived an improper
personal benefit. Section 102(b)(7) does not authorize any limitation on the
ability of the corporation or its shareholders to obtain injunctive relief,
specific performance or other equitable relief against directors.
Article Ninth of the registrant's Certificate of Incorporation and the
registrant's By-laws provide that all persons who the registrant is empowered to
indemnify pursuant to the provisions of Section 145 of the GCL (or any similar
provision or provisions of applicable law at the time in effect), shall be
indemnified by the registrant to the full extent permitted thereby. The
foregoing right of indemnification shall not be deemed to be exclusive of any
other rights to which those seeking indemnification may be entitled under any
by-law, agreement, vote of shareholders or disinterested directors, or
otherwise.
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Article Tenth of the registrant's Certificate of Incorporation provides
that no director of the registrant shall be personally liable to the registrant
or its stockholders for any monetary damages for breaches of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the registrant or its stockholders; (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the GCL; or (iv) for any transaction from which
the director derived an improper personal benefit.
The registrant's employment agreements with Mr. Neil Cole, the
registrant's Chief Executive Officer, Mr. William Sweedler, an Executive Vice
President of the registrant and Ms. Deborah Sorell Stehr, the registrant's
Senior Vice President and General Counsel generally provide that the registrant
shall indemnify each of them for the consequences of all acts and decisions made
by such person while performing services for the registrant. These agreements
also require the registrant to use its best efforts to obtain directors' and
officers' liability insurance for such persons.
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
and is, therefore, unenforceable.
Item 16. Exhibits.
5 Opinion of Blank Rome LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Blank Rome LLP (included in Exhibit 5)
24 Power of Attorney (included on the signature page of the
Registration Statement)
Item 17. Undertakings
Undertaking Required by Regulation S-K, Item 512(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, as amended
(the "Securities Act");
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;
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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 clauses (i) and (ii) do not apply if the Registration
Statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by such clauses is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering 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.
Undertaking Required by Regulation S-K, Item 512(b).
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 initial bona fide offering thereof.
Undertaking required by Regulation S-K, Item 512(h).
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons 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 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, the 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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 16th day of
September 2005.
ICONIX BRAND GROUP, INC.
By: /s/ Neil Cole
--------------------------------------
Neil Cole
President and Chief Executive Officer
Each person whose signature appears below authorizes each of Neil Cole
and Warren Clamen, or either of them acting individually, as his true and lawful
attorney-in-fact, each with full power of substitution, to sign the Registration
Statement on Form S-3 of Iconix Brand Group, Inc., including any and all
pre-effective and post-effective amendments, in the name and on behalf of each
such person, individually and in each capacity stated below, and to file the
same, with exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following person in the capacities and
on the dates stated.
Signature Title Date
--------- ----- ----
/s/ Neil Cole Chief Executive Officer, President and September 16, 2005
---------------------------
Neil Cole Director (Principal Executive Officer)
/s/ Warren Clamen Chief Financial Officer (Principal Financial September 16, 2005
---------------------------
Warren Clamen and Accounting Officer)
/s/ Barry Emanuel Director September 16, 2005
---------------------------
Barry Emanuel
/s/ Steven Mendelow Director September 16, 2005
---------------------------
Steven Mendelow
/s/ Michael Caruso Director September 16, 2005
---------------------------
Michael Caruso
Director September , 2005
---------------------------
Michael Groveman
/s/ Drew Cohen Director September 16, 2005
---------------------------
Drew Cohen
/s/ William Sweedler Executive Vice President and Director September 16, 2005
---------------------------
William Sweedler
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