As filed with the Securities and Exchange Commission on August __, 1997
Registration No. ______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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CABLE & CO. WORLDWIDE, INC.
(Name of small business issuer in its charter)
Delaware 5139 22-3341195
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
CABLE & CO. WORLDWIDE, INC.
724 Fifth Avenue
New York, New York 10019
(212) 489-9686
(Name, address and telephone number of principal executive offices
and principal place of business)
ALAN KANDALL
Cable & Co. Worldwide, Inc.
724 Fifth Avenue
New York, New York 10019
(212) 489-9686
(Name, address and telephone number of agent for service)
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Copies to:
MARTIN C. LICHT, ESQ.
LANE & MITTENDORF LLP
320 Park Avenue
New York, New York 10022
(212) 508-3200
Approximate Date of Commencement of Proposed Sale to the
Public: From time to time after this Registration Statement
becomes effective.
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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|
<PAGE>
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 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
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<TABLE>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
Amount of
Title of Each Class of Amount to be Offering Price Per Aggregate offering Registration
Securities to be Registered Registered Security Price Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value (1) $.01 per share 13,690,000 $.40625 $5,561,562.50 $1,685.32
Total Registration Fee(2)............... $1,685.32
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</TABLE>
(1) Includes the registration for resale of 13,690,000 shares of Common Stock
issued in a private placement in July 1997.
(2) The offering price per share is estimated pursuant to Rule 457(c) solely for
the purpose of calculating the registration fee and is based upon the average of
the bid and asked prices of the Common Stock of the Company reported on the
NASDAQ SmallCap Market on August 5, 1997 (which date is within five business
days prior to the date of the filing of this Registration Statement).
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 Commission, acting pursuant to said Section 8(a),
may determine.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation, or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
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(Subject to Completion)
Dated ________, 1997
CABLE & CO. WORLDWIDE, INC.
13,690,000 Shares of Common Stock
All of the shares (the "Shares") of Common Stock, $ .01 par value (the
"Common Stock"), of Cable & Co. Worldwide, Inc., a Delaware corporation (the
"Company"), offered hereby (the "Shares") are being offered by certain selling
stockholders (the "Selling Stockholders") as more fully described herein.
Pursuant to a registration rights agreement, the Company has agreed to bear all
expenses (other than underwriting discounts and selling commissions of any
underwriters, brokers, dealers or agents retained by the Selling Stockholders)
in connection with the registration and sale of the Shares being offered by the
Selling Stockholders. In addition, the Company has agreed to indemnify the
Selling Stockholders against certain liabilities, including liabilities under
the Securities Act of 1933, as amended (the "Securities Act"). The Company will
receive none of the proceeds from any sale of the Shares by or for the account
of the Selling Stockholders. See "SELLING STOCKHOLDERS" and "PLAN OF
DISTRIBUTION."
The Shares may be sold from time to time by the Selling Stockholders.
Such sales may be made on The NASDAQ SmallCap Market ("NASDAQ"), in negotiated
transactions or otherwise at prices and at terms then prevailing; at prices
related to the then current market price; or at negotiated prices. The Shares
may be sold by any one or more of the following methods: (a) a block trade in
which the broker or dealer so engaged will attempt to sell the securities as
agent but may position and resell a portion of the block as principal to
facilitate the transaction; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its own account; (c) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; and (d)
privately negotiated transactions. In addition, any Shares that qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
Prospectus.
The Selling Stockholders and any broker-dealers, agents or underwriters
that participate with the Selling Stockholders in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of the Securities Act and
any commissions received by such broker-dealers, agents or underwriters 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.
The Common Stock is traded on NASDAQ under the symbol "CCWW." On August
5, 1997, the closing bid price per share, as reported by NASDAQ was $0.375 .
The shares of Common Stock offered for resale hereby were issued in a
private placement in July 1997.
<PAGE>
THIS OFFERING INVOLVES SUBSTANTIAL INVESTMENT RISKS, AND
SECURITIES SHOULD BE PURCHASED ONLY BY PERSONS WHO CAN AFFORD
TO SUSTAIN THE LOSS OF THEIR ENTIRE INVESTMENT. SEE "RISK
FACTORS" ON PAGE 7.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _________________, 1997.
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AVAILABLE INFORMATION
A Registration Statement on Form S-3 (the "Registration Statement"),
under the Securities Act, relating to the securities offered hereby has been
filed by the Company with the Securities and Exchange Commission (the
"Commission"), Washington, D.C. This Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto. Certain financial and other information relating to the
Company is contained in the documents indicated below under "Incorporation of
Certain Documents by Reference" which are not presented herein or delivered
herewith. For further information with respect to the Company and the securities
offered hereby, reference is made to such Registration Statement, exhibits and
schedules. 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 reference is made to the copy of such contract or other document filed
as exhibits to the Registration Statement, each such statement being qualified
in all respects by such reference. A copy of the Registration Statement may be
inspected without charge or may be obtained from the Commission upon the payment
of certain fees prescribed by the Commission at the public reference facilities
maintained by the Commission in Washington, D.C. at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's Regional Offices in
New York at 7 World Trade Center , 13th Floor, New York, New York 10048 and in
Chicago at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act"), and in accordance
therewith files periodic reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information concerning
the Company may be inspected or copied at the public reference facilities at the
Commission located at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
and at the Commission's Regional Offices in New York, 7 World Trade Center, 13th
Floor, New York, New York 10048, and in Chicago, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
documents can be obtained at the public reference section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates or by
reference to the Company on the Commission's Worldwide Web page
(http:www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission, are incorporated herein by reference:
1. The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1996.
2. The Company's Quarterly Report on Form 10-QSB for the period ended
March 31, 1997.
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3. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on May 24,
1996, pursuant to Section 12(g) of the Exchange Act.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in and to be a part of
this Prospectus from the date of filing of such reports and documents. Any
statement contained in a document incorporated or deemed to be 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 or in the
Registration Statement containing this Prospectus or in any other subsequently
filed document which also is or is deemed to be incorporated by reference 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.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the request of such person, a copy of any or all
of the foregoing documents referred to above which have been or may be
incorporated herein by reference, other than exhibits to such documents (unless
such exhibits are specifically incorporated by reference into the information
that this Prospectus incorporates). Requests for such documents should be
directed to: Cable & Co. Worldwide, Inc., 724 Fifth Avenue, New York, New York
10019 .
THE COMPANY
Cable & Co. Worldwide, Inc. (the "Company") designs, manufactures, imports
and markets on a wholesale basis a broad range of men's footwear bearing the
Cable & Co.(R) trademark and Bacco Bucci(R) trademark. The Company markets its
products to approximately 1,500 department and specialty store locations in the
United States. The Company's products are designed to appeal to fashion
conscious consumers. The Company's footwear consists of men's casual and dress
shoes. In August 1997 the Company acquired the rights to the Bacco Bucci
trademark from D&D Design and Details Limited ("D&D Design"), an entity
controlled by Alberto Salvucci, the Chairman of the Board, a director and a
principal stockholder of the Company. Prior to August 1997, the Company licensed
the right to use the Bacco Bucci trademark from D&D Design. The retail price of
the men's shoes sold under the Cable & Co. trademark ranges from $150 to $175
for casual shoes and from $190 to $230 for dress shoes. The retail price of the
men's casual shoes sold under the Bacco Bucci trademark ranges from $120 to
$140.
The Company believes that its footwear is comfortable, fashionable and
practical. The Company incorporates technically sophisticated designs into the
construction of its footwear,
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which is intended to be worn with casual or business attire. The Company sells
approximately 35 styles of men's shoes each season bearing the Cable & Co.
trademark and approximately 20 styles under the Bacco Bucci trademark.
The Company plans to increase revenues by increasing sales to existing
accounts, establishing new accounts, developing high quality shoes with styling
and design detail to sell at competitive prices, expanding the Company's
marketing programs and globalizing the Cable & Co. and Bacco Bucci brands. In
August 1997 the Company acquired the Cable & Co. trademark from Cable & Co.
S.R.L. in many major countries throughout the world. The Company also began
manufacturing its footwear with its own machinery, equipment and staff in a
leased facility in Montegranaro Italy, in the second quarter of 1997, which the
Company believes will increase margins. The Company also intends to explore
opportunities to license rights to related products such as belts, wallets,
accessories and other small leather goods. There can be no assurance that the
Company will be able to achieve such objectives.
The Company was formed on November 10, 1994 to acquire certain net assets
of Hongson, Inc. used in the sale and marketing of footwear bearing the Cable &
Co. trademark (the "Acquired Net Assets"). The Company purchased the Acquired
Net Assets effective as of the close of business on January 1, 1995 for a total
purchase price of $1,401,787 (the "Acquisition"). The Company acquired all of
the rights of Hongson, Inc. to use the Cable & Co. trademark in the Western
Hemisphere.
Prior to the Acquisition, Alberto Salvucci, Chairman of the Board, a
director and a principal stockholder of the Company, through Cable & Co. S.R.L.,
identified raw materials and provided design and production services for the
Cable & Co. product line of Hongson, Inc. Mr. Salvucci, through Cable & Co.
S.R.L. and D&D Design, continues to provide substantially the same services to
the Company. In addition, Alan Kandall, Chief Executive Officer, President, and
a Director of the Company, was the chief financial officer of Hongson, Inc. and
David Albahari, formerly the President and Chief Executive Officer and presently
a director of the Company, was the president of the Cable & Co. product line of
Hongson, Inc.
The Company's principal executive office is located at 724 Fifth Avenue, New
York, New York 10019, and its telephone number is (212) 489-9686.
Recent Developments
In August 1997 the Company purchased all of the rights to the Bacco
Bucci trademark from D&D Design, an entity controlled by Alberto Salvucci, the
Chairman of the Board, a director and a principal stockholder of the Company.
The Company also acquired in many major countries throughout the world all of
the rights to the Cable & Co. trademark from Cable & Co. S.R. L., an entity
controlled by Mr. Salvucci . The purchase price for the Bacco Bucci trademark
consists of $3,150,000 of which $400,000 will be paid periodically by December
1, 1997, and the balance of which shall be payable in installments. Payments of
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$350,000 and $400,000 are due in January 1998 and January 1999, respectively.
The balance is payable in four installments of $500,000 in January 2000 through
January 2003. In addition, the Company has agreed to pay to D&D Design annual
royalties of 7% of net sales for a period of five years for all goods sold
outside North and South America. The Company has also agreed to issue to D&D
Design and Cable & Co. S.R.L. an aggregate of 11,973,411 shares of Common Stock.
The purchase price for the rights to the Cable & Co. trademark include the
shares of Common Stock discussed above, together with a payment of $100,000,
which amount has been paid to Cable & Co. S.R.L.
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RISK FACTORS
THE SECURITIES OFFERED HEREBY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF
RISK. THE SECURITIES SHOULD BE PURCHASED ONLY BY PERSONS WHO CAN AFFORD TO
SUSTAIN THE LOSS OF THEIR ENTIRE INVESTMENT. IN EVALUATING AN INVESTMENT IN THE
COMPANY AND ITS BUSINESS, PRIOR TO PURCHASE PROSPECTIVE INVESTORS SHOULD
CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AS WELL AS OTHER INFORMATION SET
FORTH ELSEWHERE IN THIS PROSPECTUS.
Limited Operating History
The Company, which was organized in November 1994, was formed for the
purpose of acquiring the Acquired Net Assets from Hongson, Inc. For the years
ended December 31, 1995 and 1996, the Company had net losses of $103,109 and
$7,458,305, respectively. The Company has a limited operating history and there
can be no assurance of future profitable operations. Moreover, there can be no
assurance that the Company will be able to attain improved operating results
and, as a result, no assurance can be given that the Company's financial
condition will improve.
Dependence on Proposed Expansion Program
The Company's continued growth depends to a significant degree on its
ability to increase sales to existing customers, to obtain new customers and to
expand its product lines, while insuring adequate quality controls. The Company
plans to increase revenues by increasing sales to existing accounts,
establishing new accounts, developing high quality shoes with styling and design
detail to sell at competitive prices and expanding the Company's marketing
programs. The Company plans to increase margins through the manufacture of its
products. In addition, the Company intends to seek to grant license rights to
the Cable & Co.
trademark.
There can be no assurance that the Company will be able to hire, train and
integrate employees and adapt its management information and other operational
systems, to the extent necessary to grow in a profitable manner. In addition,
the costs associated with the planned expansion of the Company may have a
material adverse impact upon the Company's results and prospects. In the event
that the Company's plans for expansion are not successful, there would be a
material adverse affect on the Company's business.
Need for Additional Financing
If revenues are not sufficient for the operation of the Company, or to
enable the Company to complete its present plans for expansion, then the Company
will have to seek additional financing. Such additional financing may be in the
form of indebtedness from institutional lenders or other third parties or as
equity financing. Moreover, the Company's
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credit facilities with Heller Financial, Inc. ("Heller") may limit the Company's
ability to obtain additional financing. There can be no assurance that such
financing will be available and, if so, on acceptable terms. Any such financing
may result in significant dilution to investors or cause the Company to become
overly leveraged. In such event, the stockholders, including purchasers in this
Offering, may lose or experience a substantial reduction in the value of their
investment in the Company.
Secured Liens -- Liens on the Company's Assets
The Company's accounts receivable, inventory, machinery, equipment,
fixtures, instruments, documents, chattel paper, general intangibles and
contract rights (the "Secured Assets") have been pledged as collateral to secure
obligations owed to Heller. If the Company fails to comply with such
obligations, including making required payments of principal and interest,
Heller could declare the indebtedness immediately due and payable and, in
certain events, foreclose upon the Secured Assets. Moreover, to the extent that
the Company's assets continue to be pledged to secure outstanding indebtedness,
such assets will be unavailable to secure additional debt financing, which may
adversely affect the Company's ability to borrow in the future.
Dependence on Credit Facilities
The Company's operations are dependent upon the availability of credit. As
of June 30, 1997, the total amount outstanding under the Company's credit
facilities with Heller was $3,085,613, all of which is classified as a current
liability. The Company's existing credit facility with Heller expires in
February 1998. If Heller fails to renew or declares a default under or imposes a
material change in the terms of the Company's credit facilities, there could be
a material adverse affect on the Company.
Competition
Competition in the footwear industry is intense. The Company's products
compete with other branded products within their product category. In varying
degrees, depending on the product category involved, the Company competes on the
basis of style, price, quality, comfort and brand prestige and recognition,
among other considerations. The Company competes with numerous manufacturers,
importers and distributors of men's footwear for the limited shelf-space
available for displaying products to the consumer. Moreover, the general
availability of contract manufacturing capacity allows access by new market
entrants. Some of the Company's competitors are larger, have achieved greater
recognition for their brand names, have captured greater market share and/or
have substantially greater financial, distribution, marketing and other
resources than the Company.
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Continued Relationship with Alberto Salvucci; Lack of Non-Competition Agreement;
Dependence on Key Persons
The Company is dependent on the design, production and production control
services provided by Alberto Salvucci, Chairman of the Board and a principal
stockholder of the Company, individually and through Cable & Co. S.R.L. and D&D
Design. However, although the Company is in the process of finalizing a
consulting agreement with Mr. Salvucci, the Company does not have any written
agreements with, Mr. Salvucci, Cable & Co. S.R.L. or D&D Design, both of which
are controlled by Mr. Salvucci. There can be no assurance that the Company will
enter into such agreements on acceptable terms. The loss or curtailment on
acceptable terms of Mr. Salvucci's services, or direct or indirect competition
with Mr. Salvucci, Cable & Co. S.R.L. or D&D Design could have a material
adverse affect on the Company's business.
The Company is also dependent upon the services of Alan Kandall the
Company's Chief Executive Officer, President, and a member of the Company's
Board of Directors. Mr. Kandall has an employment agreement with the Company
that expires on June 30, 2002. The loss or curtailment of the services of Mr.
Kandall would have a material adverse affect on the Company's operations and
prospects.
In addition, the Company has an ongoing need to expand its management,
marketing and support staff. Competition for personnel having the qualifications
required by the Company is intense and no assurance can be given that the
Company will be successful in recruiting or retaining such personnel as the need
arises.
Dependence on Major Customers
Approximately 18% of the Company's sales were made to one customer during
the year ended December 31, 1996. The loss of, or reduced purchases by, the
Company's major customer could have a material adverse affect on the Company.
Changing Consumer Demands; Uncertainty of Market Acceptance
The footwear industry is subject to changing consumer demands and fashion
trends. The Company believes that its success will depend in large part upon its
ability to identify and interpret fashion trends and to anticipate and respond
to such trends in a timely manner. There can be no assurance that the Company
will be able to meet changing consumer demands or to develop successful styles
in the future. If the Company misjudges the market for a particular product or
product line, it may result in an increased inventory of unsold and outdated
finished goods and have an adverse affect on the Company's financial condition
and results of operations. In addition, any failure by the Company to identify
and respond to changing demands and trends could adversely affect consumer
acceptance of the Company's products and diminish the Company's business and
prospects.
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The Company intends to market additional lines of footwear in the future.
Achieving market acceptance for each of these products will be difficult and may
require substantial marketing efforts and the expenditure of significant funds.
There can be no assurance that the Company will have sufficient funds to do so
or that its marketing effort will be successful.
Risks of Manufacturing
The Company recently began manufacturing the Company's footwear
in Montegranaro, Italy. Previously, the Company's footwear was produced to its
specifications by manufacturers located primarily in Montegrano Italy. There can
be no assurance that the Company will be able to manufacture its footwear to
satisfy its customers requirements or, if required, alternative suppliers will
be available in a timely manner.
Impact of Doing Business in Foreign Countries
The Company's business is subject to risks of doing business abroad,
including, but not limited to, fluctuations in exchange rates and changes in
regulations relating to imports, including quotas, duties, taxes and other
charges. Political and economic instability in countries where the Company's
products are manufactured or sold may have a material adverse affect on the
Company's operations.
In order to reduce the risk of exchange rate fluctuations, the Company
enters into forward exchange contracts to protect gross profit margins on most,
but not all of its foreign currency transactions. The Company cannot anticipate
all of its currency needs and, therefore, cannot fully hedge against such
fluctuations. Thus, changes in exchange rates could adversely affect the costs
of goods purchased by the Company.
Although the goods sold by the Company are not currently subject to quotas,
countries in which the Company's products are manufactured may, from time to
time, impose new quotas or adjust prevailing quotas or other restrictions on
exported products and the United States may impose new duties, tariffs and other
restrictions on imported products, any of which could adversely affect the
Company's operations. In accordance with the 1993 Harmonized Tariff Schedule, a
fixed duty structure is in effect for the United States. The Company pays import
duties on its products of approximately 8.5%, depending on the principal
component of the product. Other import restrictions on footwear and related
products are periodically considered by the United States Congress and no
assurances can be given that new regulations will not result in higher costs to
the Company, or that import quotas will not be imposed or made more restrictive.
The Company imports a large portion of its products from Italy. Italy is on
the "watch list" maintained by the United States Trade Representative (the
"USTR") under "Special 301" provisions of the Trade Act of 1974 for purposes of
monitoring protection of intellectual property rights. If the USTR were to
determine that Italy's actions, policies, or practices with
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respect to intellectual property rights are actionable, sanctions against
imports from Italy, including higher duties, could be imposed.
Advance Marketing of Products
To minimize purchasing costs and the time necessary to fill customers'
orders and the risk of non-delivery, the Company arranges for manufacturing
before receiving customers' orders, and maintains an inventory of certain key
products which it anticipates will be in demand. However, there can be no
assurance that the Company will be able to sell the products that it has
manufactured or has in its inventory. As of May 31, 1997, the Company had
approximately $3,470,000 of finished goods inventory, including landing costs,
and approximately $357,000 of unfinished goods inventory. The Company must make
decisions regarding how much inventory to manufacture well in advance of
anticipated sale. Deviations in actual from projected demand for products could
have an adverse affect on the Company's sales and profitability. In addition, if
the Company fails to meet its delivery requirements to its customers, such
delayed delivery could result in cancellation of purchase orders and reduced
sales.
Product Diversion
The Company believes that International Hongson, Inc., an affiliate of
Hongson, Inc., owns the rights to use the Cable & Co. trademark in parts of
Asia. The Company does not control the distribution of the footwear produced by
International Hongson, Inc. or others that may have, or acquire rights to the
Cable & Co. trademark for parts of Asia or elsewhere, and no assurances can be
given that products manufactured or sold in parts of Asia or elsewhere will not
be sold in the Company's markets. Management believes that International
Hongson, Inc. retains the rights to the Cable & Co. trademark for parts of Asia.
Potential Limitation on Trademark Protection
The Company has been granted trademark registrations in the United States,
Canada and in many major countries throughout the world, except the United
Kingdom and Taiwan. In addition, the Company has been granted trademark
registrations for Bacco Bucci in the United States, Canada and many major
countries throughout the world. Additional trademark registration applications
which may be filed by the Company with the United States Patent and Trademark
Office and in other countries may or may not be granted and the breadth or
degree of protection of the Company's existing or future trademarks may not be
adequate. In addition, pursuant to the asset purchase agreement between the
Company and Hongson, Inc. in connection with the Acquisition, Hongson, Inc. was
obligated to indemnify the Company for any misrepresentations it made with
respect to the Cable & Co. trademark. However, management believes that Hongson,
Inc. is no longer doing business and it is not anticipated that it will be able
to fulfill such obligation, if so requested. Moreover, the Company may not be
able to defend successfully any of its legal rights with respect to its present
or future
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trademarks. The failure of the Company to protect its legal rights to its
trademarks from improper appropriation or otherwise may have a material adverse
affect on the Company.
Effect of General Economic Conditions
The fashion-related segments of the Company's business are cyclical, with
consumer purchases generally declining during recessionary periods when
disposable income decreases. There can be no assurance that a poor economic
climate will not have an adverse impact on the Company's ability to compete for
limited consumer resources.
Although the retail footwear industry has experienced significant changes
and difficulties over the past several years, including consolidation of
ownership, centralization of buying decisions, restructuring, bankruptcies and
liquidations, management believes that such changes have not had a material and
adverse affect on the Company's business. However, the Company cannot predict
what effect, if any, continued changes within the retail industry will have on
its business.
Seasonality
The Company's business is subject to seasonal variations. Historically in
the footwear industry, a significant portion of the Company's sales are realized
during the spring and fall fashion seasons, and levels of sales are generally
lower during the winter and summer fashion seasons. If the Company's sales were
to be substantially below seasonal norms during the spring and fall fashion
seasons, the Company's annual results could be materially and adversely
affected.
Authorization and Discretionary Issuance of Preferred Stock
The Company's Certificate of Incorporation authorizes the issuance of "blank
check" preferred stock with such designations, rights and preferences as may be
determined from time to time by the Board of Directors. Accordingly, the Board
of Directors is empowered, without stockholder approval, to issue preferred
stock with dividends, liquidation, conversion, voting or other rights which
could decrease the amount of earnings and assets available for distribution to
holders of Common Stock and adversely affect the relative voting power or other
rights of the holders of the Company's Common Stock. In the event of issuance,
the preferred stock could be used, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company.
Although the Company has no present intention to issue any additional shares of
its preferred stock, there can be no assurance that the Company will not do so
in the future.
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No Dividends
The Company has not paid and does not anticipate declaring or paying any
dividends on its Common Stock in the foreseeable future. Moreover, the Company's
loan agreements with Heller prohibit the payment of dividends if such payment
would cause the Company to violate any of the Company's financial covenants.
Benefits to Certain Selling Securityholders
In July 1997, the Company consummated a private placement at a purchase
price of $.10 per share. The prices paid by investors in this Offering may be
substantially higher than the amounts paid by the selling stockholders.
Shares Eligible for Future Sale
Of the 30,172,997 shares of Common Stock (excluding the 11, 973,411 shares
issuable to D&D Design and Cable & Co. S.R.L.) currently outstanding 15,224,849
are "restricted securities" as that term is defined in Rule 144 under the
Securities Act and may only be sold pursuant to a registration statement filed
under the Securities Act or in compliance with Rule 144 or another exemption
from the registration requirements of the Securities Act. In general, under Rule
144, subject to the satisfaction of certain other conditions, a person,
including an affiliate of the Company, who has beneficially owned restricted
shares of Common Stock for at least one year is entitled to sell, within any
three-month period, a number of shares that does not exceed the greater of 1% of
the total number of outstanding shares of the same class, or if the Common Stock
is quoted on NASDAQ or a stock exchange, the average weekly trading volume
during the four calendar weeks immediately preceding the sale. A person who
presently is not and who has not been an affiliate of the Company for at least
three months immediately preceding the sale and who has beneficially owned the
shares of Common Stock for at least two years is entitled to sell such shares
under Rule 144 without regard to any of the volume limitations described above.
The Company has 1,929,500 shares of Common Stock issuable upon the exercise
of outstanding options, warrants and conversion rights. Moreover, 280,000 shares
of Common Stock will be available for issuance upon the exercise of options
which may be granted under the Company's 1996 Stock Option Plan. To the extent
that options or warrants are exercised, dilution to the interests of the
Company's stockholders may occur. Moreover, the terms upon which the Company
will be able to obtain additional equity capital may be adversely affected,
since the holders of the outstanding options or warrants can be expected to
exercise them, to the extent they are able to, at a time when the Company would,
in all likelihood, be able to obtain any needed capital on terms more favorable
to the Company than those provided in the options or warrants.
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<PAGE>
Possible Delisting of Common Stock for NASDAQ; Possible Adverse Effect on
Trading Market
The Common Stock is quoted on the NASDAQ SmallCap Market. There are a
number of continuing requirements that must be met in order for the Common Stock
to remain eligible for quotation on NASDAQ. In order to continue to be quoted on
NASDAQ, a company must maintain $2 million in total assets, a $200,000 market
value of the public float, $1 million in total capital and surplus and a minimum
of 300 shareholders. In addition, continued quotation requires two marketmakers
and a minimum bid price of $1.00 per share; provided, however, that if a company
falls below such a minimum bid, it will remain eligible for continued quotation
on NASDAQ if the market value of the public float is at least $1 million and the
company has $2 million in capital and surplus. The failure to meet these
maintenance criteria in the future could result in the delisting of the
Company's Common Stock from NASDAQ. In such event, trading, if any, in the
Common Stock may then continue to be conducted in the non-NASDAQ
over-the-counter market. As a result, an investor may find it more difficult to
dispose of, or to obtain accurate quotations as to the market value of, the
Common Stock. In November 1996, NASDAQ approved changes to its quantitative and
qualitative standards for issuers listing on NASDAQ, subject to public comment
and approval by the Commission. Among the proposed changes are the elimination
of the alternative test for issuers failing to meet the minimum bid price of
$1.00, an increase in the quantitative standards for both the NASDAQ National
Market and the NASDAQ SmallCap Market, and the corporate governance requirements
applicable to the NASDAQ National Market would be applicable to the NASDAQ
SmallCap Market.
In addition, if the Common Stock were delisted from trading on NASDAQ
and the trading price of the Common Stock were less than $5.00 per share,
trading in the Common Stock would also be subject to the requirements of certain
rules promulgated under the Securities Exchange Act of 1934, which require
additional disclosure by broker dealers in connection with any trades involving
a stock defined as a penny stock (generally, any non- NASDAQ equity security
that has a market price of less than $5.00 per share, subject to certain
exceptions). Such rules require the delivery, prior to any penny stock
transaction, of a disclosure schedule explaining the penny stock market and the
risks associated therewith, and impose various sales practice requirements on
broker-dealers who sell penny stocks to persons other than established customers
and accredited investors (generally institutions). For these types of
transactions, the broker-dealer must make a special suitability determination
for the purchaser and have received the purchaser's written consent to the
transaction prior to sale. The additional burdens imposed upon broker-dealers
may discourage broker-dealers from effecting transactions in penny stocks, which
could reduce the liquidity of the shares of Common Stock and thereby have a
material adverse effect on the trading market for the securities.
Risks Associated with Forward-Looking Statements
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<PAGE>
This Prospectus contains certain forward-looking statements regarding
the plans and objectives of management for future operations. The
forward-looking statements included herein are based on current expectations
that involve numerous risks and uncertainties. The Company's plans and
objectives are based on a successful execution of the Company's expansion
strategy and assumptions that Company's operations will be profitable, that the
footwear industry will not change materially or adversely, and that there will
be no unanticipated material adverse change in the Company's operations or
business. Assumptions relating to the foregoing involve judgments with respect
to, among other things, future economic, competitive and market conditions and
future business decisions, all of which are difficult or impossible to predict
accurately and many of which are beyond the control of the Company. Although the
Company believes that its assumptions underlying the forward- looking statements
are reasonable, any of the assumptions could prove inaccurate and, therefore,
there can be no assurance that the forward-looking statements included herein
will prove to be accurate. In light of the significant uncertainties inherent in
the forward-looking statements included herein, particularly in view of the
Company's early stage operations, the inclusion of such information should not
be regarded as a representation by the Company or any other person that the
objectives and plans of the Company will be achieved.
USE OF PROCEEDS
Since this Prospectus relates to the offering of Shares by the Selling
Stockholders, the Company will not receive any proceeds from the sale of the
Shares offered hereby. See "SELLING STOCKHOLDERS."
SELLING STOCKHOLDERS
The following table sets forth the name and the number of shares of Common
Stock beneficially owned by each Selling Stockholder as of August 1, 1997, the
number of the shares to be offered by each Selling Stockholder pursuant to this
Prospectus and the number of shares to be beneficially owned by each Selling
Stockholder after the Offering if all of the shares offered hereby by such
Selling Stockholder are sold as described herein. The shares being offered for
resale hereby were acquired by the selling stockholders in a private placement
in July 1997. Except as noted below, the Selling Stockholders have not held any
position or office with, been employed by, or otherwise had a material
relationship with, the Company, other than as stockholders of the Company
subsequent to their respective acquisition of shares of Common Stock. The Shares
are being registered to permit public secondary trading of the Shares, and the
Selling Stockholders may offer the Shares for resale from time to time. See
"PLAN OF DISTRIBUTION."
In recognition of the fact that Selling Stockholders may wish to be
legally permitted to sell their Shares when they deem appropriate, the Company
has filed with the Commission, under the Securities Act, a Registration
Statement on Form S-3, of which this Prospectus forms a part, with respect to
the resale of the Shares from time to time on NASDAQ or in
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<PAGE>
privately-negotiated transactions and has agreed to prepare and file such
amendments and supplements to the Registration Statement as may be necessary to
keep the Registration Statement effective until the Shares are no longer
required to be registered for the sale thereof by the Selling Stockholders.
The Company has agreed to pay for all costs and expenses incident to the
issuance, offer, sale and delivery of the Shares, including, but not limited to,
all expenses and fees of preparing, filing and printing the Registration
Statement and Prospectus and related exhibits, amendments and supplements
thereto and mailing of such items. The Company will not pay selling commissions
and expenses associated with any such sales by the Selling Stockholders. The
Company has agreed to indemnify the Selling Stockholders against civil
liabilities including liabilities under the Securities Act.
Except as otherwise indicated, to the knowledge of the Company, all
persons listed below have sole voting and investment power with respect to their
securities. The information in the table concerning the Selling Stockholders who
may offer Shares hereunder from time to time is based on information provided to
the Company by such stockholders. Information concerning such Selling
Stockholders may change from time to time and any changes of which the Company
is advised will be set forth in a Prospectus Supplement to the extent required.
See "PLAN OF DISTRIBUTION."
<TABLE>
Number of Shares of Number of Shares Number of Shares
Name of Selling Common Stock of Common Stock Beneficially Owned
Stockholder Beneficially Owned(1) Offered Hereby After Offering
<S> <C> <C> <C>
JP Partners II LLP 1,725,000 1,725,000 0
Banco Cooperativo 2,000,000 2,000,000 0
Costarricense R.L.
First National 1,000,000 1,000,000 0
Funding Corp.
RBB Bank AG 5,500,000 5,500,000 0
Robert B. Prag 350,000 350,000 0
Heracles Holdings 350,000 350,000 0
Mathers Associates 2,500,000 2,500,000 0
- 16 -
<PAGE>
Howard Boilen 171,245 150,000 21,245
Neal Heller 100,000 100,000 0
Paul Gordon 48,139 5,000 43,139
Charles Lowlicht 105,145 10,000 95,145
Total 13,849,529 13,690,000 159,529
</TABLE>
(1) Such beneficial ownership represents the number of shares of Common Stock
beneficially owned by each such person .
The Selling Stockholders are offering the Shares for their own account,
and not for the account of the Company. The Company will not receive any
proceeds from the sale of the Shares by the Selling Stockholders.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholders.
Such sales may be made through ordinary brokerage transactions, the
over-the-counter market, or otherwise at prices and at terms then prevailing, at
prices related to the then current market price or at negotiated prices. The
Shares may be sold by any one or more of the following methods: (a) a block
trade in which the broker or dealer so engaged will attempt to sell the
securities as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker as principal
and resale by such broker or dealer for its account, (c) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; and (d)
privately negotiated transactions. In addition, any Shares that qualify for sale
pursuant to Rule 144 may be sole under Rule 144 rather than pursuant to this
Prospectus.
The Selling Stockholders and any broker-dealers, agents or underwriters
that participate with the Selling Stockholder in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of the Securities Act and
any commissions received by such broker-dealer, agent or underwriter 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.
Under the Exchange Act and the regulations thereunder, any person
engaged in a distribution of the Shares offered by this Prospectus may
simultaneously engage in market making activities with respect to the Common
Stock during any applicable "Cooling off"
- 17 -
<PAGE>
periods prior to the commencement of such distribution. In addition, and without
limiting the foregoing, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder
including, without limitation, Rules 10b-6 and 10b-7, which provisions may limit
the timing of purchases and sales of Common Stock by the Selling Stockholders.
The Company has agreed to indemnify the Selling Stockholders against
liabilities incurred by the Selling Stockholders by reason of misstatements or
omissions to state material facts in connection with the statements made in this
Prospectus and the Registration Statement of which it forms a part. The Selling
Stockholders, in turn, have agreed to indemnify the Company against liabilities
incurred by the Company by reason of misstatements or omissions to state
material facts in connection with statements made in the Registration Statement
and prospectus based on information furnished in writing by the Selling
Stockholders. To the extent that such section of the Registration Rights
Agreement may purport to provide exculpation from possible liabilities arising
under the Federal securities laws, it is the opinion of the Commission that such
indemnification is contrary to public policy and unenforceable.
DESCRIPTION OF SECURITIES
General
The total authorized capital stock of the Company is 50,000,000 shares
of Common Stock, $.01 par value per share, and 1,453,020 shares of Preferred
Stock, $.01 par value per share. As of August 1, 1997, the Company had
30,172,997 shares of Common Stock issued and outstanding (excluding 11,973,411
shares of Common Stock issuable to D&D Design and Cable & Co. S.R.L.), which
were held by approximately 1,300 shareholders as of April 1997, and an aggregate
of 1,929,500 shares of Common Stock issuable upon exercise of outstanding
options, warrants and conversion rights.
Common Stock
Each share of Common Stock entitles the holder thereof to one vote on
all matters submitted to a vote of the stockholders. Since the holders of Common
Stock do not have cumulative voting rights, holders of more than 50% of the
outstanding shares can elect all of the directors of the Company then being
elected and holders of the remaining shares by themselves cannot elect any
directors. The holders of Common Stock do not have preemptive rights or rights
to convert their Common Stock into other securities. Holders of Common Stock are
entitled to receive ratably such dividends as may be declared by the Board of
Directors out of funds legally available therefor. In the event of a
liquidation, dissolution or winding up of the Company, holders of the Common
Stock have the right to a ratable portion of the assets remaining after payment
of liabilities subject to any superior claims of any shares of Preferred Stock
hereafter issued. See "- Preferred Stock." All shares of
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<PAGE>
Common Stock outstanding and to be outstanding upon completion of the Offering
are and will be fully paid and nonassessable.
Preferred Stock
The Company is authorized by its Articles of Incorporation to issue a
maximum of 1,453,020 shares of preferred stock, in one or more series and
containing such rights, privileges and limitations, including voting rights,
dividend rates, conversion privileges, redemption rights and terms, redemption
prices and liquidation preferences, as the Board of Directors of the Company
may, from time to time, determine.
The issuance of shares of preferred stock pursuant to the Board's
authority could decrease the amount of earnings and assets available for
distribution to holders of Common Stock, and otherwise adversely affect the
rights and powers, including voting rights, of such holders and may have the
effect of delaying, deferring or preventing a change in control of the Company.
The Company is not required by current Delaware Law to seek stockholder approval
prior to any issuance of authorized but unissued stock and the Board of
Directors does not currently intend to seek stockholder approval prior to any
issuance of authorized but unissued shares of preferred stock or Common Stock,
unless otherwise required by law.
LEGAL MATTERS
Certain legal matters with respect to the issuance of the securities
offered hereby will be passed upon for the Company by Lane & Mittendorf LLP, 320
Park Avenue, New York, New York 10022. Martin C. Licht, Esq. a member of Lane &
Mittendorf LLP, counsel to the Company is a member of the Board of Directors of
the Company.
EXPERTS
The financial statements of the Company incorporated herein by reference
to the Company's Annual Report on Form 10-KSB have been audited by Goldstein
Golub Kessler & Company, P.C., independent auditors. The financial statements
referred to above are included in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
- 19 -
<PAGE>
------------------------------------------------
------------------------------------------------
No dealer, salesperson or any other person is authorized to give any
information or to make any representations in connection with this Prospectus
and, if given or made, such information or representations must not be relied
upon as having been authorized by the Company or the Underwriter. 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 such offer or solicitation is not authorized or is
unlawful. The delivery of this Prospectus shall not, under any circumstances,
create any implication that the information herein is correct as of any time
subsequent to the date of the Prospectus.
---------------------
TABLE OF CONTENTS
Page
THE COMPANY
RISK FACTORS
USE OF PROCEEDS
SELLING STOCK HOLDERS
PLAN OF DISTRIBUTION
DESCRIPTION OF SECURITIES
LEGAL MATTERS
EXPERTS
Until __________________, 1997 (25 days after the date of this
Prospectus), all dealers effecting transactions in the securities, whether or
not participating in the distribution, may be required to deliver a Prospectus.
This is in addition to the obligation of dealers to deliver a Prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
=====================================================
-----------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses which will be paid by the
Company in connection with the shares of Common Stock being registered. With the
exception of the registration fee, all amounts shown are estimates.
Registration fee............................................$ 1,685
Printing expenses...........................................$ 2,500
Legal fees and expenses (other than Blue Sky)...............$ 27,000
Accounting fees and expenses................................$ 2,500
Miscellaneous expenses......................................$ 2,000
--------
Total ..............................................$ 35,685
Item 15. Indemnification of Officers and Directors.
Section 145 of the Delaware General Corporation Law (the "DGCL")
permits, in general, a Delaware corporation to indemnify any person who was or
is a party to an action or proceeding by reason of the fact that he or she was a
director or officer of the corporation, or served another entity in any capacity
at the request of the corporation, against liability incurred in connection with
such proceeding including the estimated expenses of litigating the proceeding to
conclusion and the expenses, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof, if
such person acted in good faith, for a purpose he or she reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in criminal
actions or proceedings, in addition had no reasonable cause to believe that his
or her conduct was unlawful. Section 145(e) of the DGCL permits the corporation
to pay in advance of a final disposition of such action or proceeding the
expenses incurred in defending such action or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount as,
and to the extent, required by statute. Section 145(f) of the DGCL provides that
the indemnification and advancement of expense provisions contained in the DGCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled.
The Company's Certificate of Incorporation provides, in general, that
the Company shall indemnify, to the fullest extent permitted by Section 145 of
the DGCL, any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities or other
matters referred to in, or covered by, said section. The Certificate of
Incorporation also provides that the indemnification provided for therein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any By-Law,
II-1
<PAGE>
agreement, vote of stockholders or disinterested directors or otherwise, both as
to actions taken in his or her official capacity and as to acts in another
capacity while holding such office.
In accordance with that provision of the Certificate of Incorporation,
the Company shall indemnify any officer or director (including officers and
directors serving another corporation, partnership, joint venture, trust, or
other enterprise in any capacity at the Company's request) made, or threatened
to be made, a party to an action or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that he or she was
serving in any of those capacities against judgments, fines, amounts paid in
settlement and reasonable expenses (including attorney's fees) incurred as a
result of such action or proceeding. Indemnification would not be available if a
judgment or other final adjudication adverse to such director or officer
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty or (ii) he or she personally gained
in fact a financial profit or other advantage to which he or she was not legally
entitled.
The Registration Rights Agreement contains, among other things,
provisions whereby the Selling Stockholders agree to indemnify the Company, each
officer and director of the Company who has signed the Registration Statement,
and each person who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, liabilities, claims or damages arising out
of alleged untrue statements or alleged omissions of material facts with respect
to information furnished to the Company by the Selling Stockholders for use in
the Registration Statement or Prospectus. See Item 17, "UNDERTAKINGS."
Item 16. Exhibit Index.
Number Description of Exhibit
2.1 Assignment of Trademark dated July 29, 1997 between D&D Design and Details
Limited and the Company.
2.2 Assignment of Trademark dated July 29, 1997 between Cable & Co. S.R.L. and
the Company
5.1 Opinion of Counsel of Lane & Mittendorf LLP
23.1 Consent of Goldstein Golub Kessler and Company, P.C.
23.2 Consent of Lane & Mittendorf LLP (included in Exhibit 5.1)
Item 17. Undertakings.
1. The undersigned, Company, hereby undertakes:
(a) To file, during any period in which the Company offers or
sells securities, a post-effective amendment(s) to this
registration statement:
II-2
<PAGE>
(1) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(2) To reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information in the
registration statement; and
(3) To include any additional or changed 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 (1)(a)(1) and 1(a)(2) do not apply if
the information required or to be included in a post effective amendment by
these paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this Registration
Statement.
(b) 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; and
(c) That, for the purpose of determining any liability under
the Securities Act of 1933, each such 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.
2. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission (the "Commission") such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
3. That, for purposes of determining any liability under the Act, each
filing of the Company's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed
II-3
<PAGE>
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.
II-4
<PAGE>
SIGNATURES
The Registrant. 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 August
6 , 1997.
CABLE & CO. WORLDWIDE, INC.
By: /s/Alan Kandall
Alan Kandall, Chief Executive Officer,
and President
By: /s/Joel Brooks
Joel Brooks, Chief Financial Officer
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.
Signature Title Date
/s/Alan Kandall President, Chief Executive Officer August 6, 1997
---------------- and Director
Alan Kandall
/s/Alberto Salvucci Chairman of the Board and Director August 6, 1997
----------------
Alberto Salvucci
Director August 6, 1997
----------------
David Albahari
/s/Martin C. Licht Secretary and Director August 6, 1997
----------------
Martin C. Licht
/s/Steven Katz Director August 6, 1997
----------------
Steven Katz
II-5
ASSIGNMENT OF TRADEMARK
AGREEMENT, made as of July 29, 1997, between D&D Design and Details,
Limited, a corporation organized under the laws of United Kingdom with an
address at 66 Wigmore Street, London W1H0HQ, United Kingdom ("Assignor"), and
Cable & Co. Worldwide, Inc., a Delaware corporation, with an address at 724
Fifth Avenue, New York, New York, New York, 10019 ("Assignee").
WHEREAS, Assignor has adopted, used and is using certain marks in
connection with the design, manufacture, sales and licensing of men's footwear;
and
WHEREAS, Assignee wishes to acquire all of Assignor's rights in and to
such marks and any corresponding registrations and applications for registration
as provided herein.
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Assignment
The Assignor sells, assigns, grants, transfers, sets over, and delivers
to the Assignee, its successors and assigns, all of Assignor's right, title and
interest in and to the trademarks and trade names set forth on Exhibit 1 hereto
(the "Trademarks"), in and throughout the jurisdictions set forth on Exhibit 2
hereto (the "Territory"), to have and to hold such trademark and all rights of
whatsoever nature thereunder in perpetuity.
2. Assignor's Warranties
The Assignor represents and warrants that
(a) the Trademarks are its sole and exclusive property;
(b) it has the full right and power to make this Agreement;
(c) it has not pledged, mortgaged, assigned, or otherwise granted
any rights in the Trademarks or any part thereof or any interest therein in any
part of the Territory, and there exists no adverse claim thereupon or thereto,
except as noted on Exhibit 3 hereto;
(d) trademark registrations have been secured therein by the
Assignee in each jurisdiction in the Territory listed on Exhibit 4 hereto, or
application has been made therefor and such applications and registrations are
current, valid and (as to registrations) enforceable, except as noted on Exhibit
4,
<PAGE>
(e) to the best of Assignor's knowledge, including constructive
knowledge of any state of affairs that would be disclosed by the reasonable
exercise of ordinary care by an owner and licensor of the Trademarks, neither
the Trademarks nor any part thereof infringe upon the title, trademark, trade
name or property rights of any person, firm or corporation anywhere in the
world, except as noted on Exhibit 5 hereto.
3. Royalties and Payments
The Assignee shall use reasonable efforts to exploit the Trademarks, in
accordance with its business judgment, and shall pay to the Assignor, in respect
of the Trademarks, the following considerations:
(a) that number of shares of common stock of the Assignee, such
that, following the issuance of such stock and the stock to be issued
simultaneously to Cable & Co. S.R.L., Assignor together Cable & Co. S.R.L. will
hold shares equal to 25% of the outstanding common stock of the Assignee, less
404,000 shares; and
(b) $US 3,150,000, payable as in the form of an initial cash
payment in the amount of $400,000 upon execution of this Agreement; and
thereafter, six (6) installments payable in cash as follows: $350,000, on
January 9 1998, $400,000, on January 9 1999, and four installments of $500,000
each, on January 9 of the years 2000 through 2003, inclusive; and
(c) Seven percent (7%) as annual royalties ("Annual Royalties"),
of the amounts actually received by the Assignee, less returns, on all goods
sold bearing the Trademarks sold in all parts of the Territory except the
Americas (as defined below) during the following periods: In each country within
the Territory, the period of the license shall be five calendar years, beginning
in the calendar year in which Assignee first seeks to exploit the Trademarks,
provided that all such periods shall irrevocably expire on December 31, 2007,
without regard to whether or when Assignee has sought to exploit or employ the
Trademarks prior to that time. For purposes of this Paragraph 3, "the Americas"
shall mean North America, South America, Central America Greenland, Iceland and
the Carribbean.
Except as specifically provided in this Paragraph 3, no other royalties
or payments of any kind shall be due from the Assignee to the Assignor.
4. Accounting for Annual Royalties
The Assignee shall render statements of the Annual Royalties payable
under paragraph 3(c) and make payments of such Annual Royalties to the Assignor
within 90 days after the end of its fiscal year, but no statement need be
rendered or payment made with respect to any fiscal year for which less than the
sum of $1,000.00 shall be due to the Assignor.
- 2 -
<PAGE>
5. Assignments of Trademark Registrations
(a) The Assignor shall deliver to the Assignee an assignment of
trademark registration or other instrument of authorization relating to each of
the Trademarks with respect to each jurisdiction within the Territory in form
reasonably satisfactory to Assignee and legally sufficient under the laws of
each such jurisdiction to effect the registration of each of the Trademarks by
Assignee in such jurisdictions. The Assignee shall have the right to expend such
sums as may be necessary to obtain such instruments and register such assignment
of trademark registrations in any jurisdiction within the Territory. In the
event any registrations assigned by Assignor prove legally insufficient, all
sums by reasonably expended by Assignee in perfecting such registrations shall
be for the account of the Assignor and shall be charged to the Assignor and may
be deducted by the Assignee from any moneys due to the Assignor under this or
any other agreement between the parties.
(b) Simultaneously with the execution hereof, the Assignor shall
execute the short-form assignment of the Trademarks which is attached hereto as
Exhibit 6.
6. Assignability
Nothing contained in this Agreement shall prevent the Assignee from
authorizing its licensees, agents, and representatives, in any jurisdiction
within the Territory, to exercise exclusive rights in the Trademark in the
Territory or any jurisdiction therein on at least the royalty basis set forth in
paragraph 3(c). Nothing in this Agreement shall prevent the Assignee from
granting a license to exercise exclusive rights to the Trademark in any or all
jurisdictions within the Territory, provided that the Assignee shall pay to the
Assignor the royalties herein stipulated.
7. Inspection of books
The Assignor may, through an independent certified public accountant
acceptable to the Assignee, at any time during normal business hours, have
access to all pertinent records and books of account of the Assignee relating to
the Trademarks, for the purpose of verifying royalties to be paid hereunder.
8. Further Assurances
Assignor agrees, upon the reasonable request of Assignee, to execute,
acknowledge and deliver to the other any and all instruments or documents, and
to do any and all such acts which may be reasonably necessary to give full force
and effect to the purpose and intentions of the terms set forth in this
Agreement, and in particular, to effect the transfer or registration of the
Trademarks in any jurisdiction within the Territory.
- 3 -
<PAGE>
9. Notices
Written demands and notices provided for herein shall be sent by
registered mail or reputable international overnight courier to the addresses
set forth at the beginning of this Agreement.
10. Infringements
(a) Any legal action brought by the Assignee against any alleged
infringer of the Trademark shall be initiated and prosecuted at Assignee's sole
expense, and any recovery made as a result thereof shall be the sole property of
the Assignee.
(b) If a claim is made against the Assignee alleging that any of
the Trademarks is an infringement of the rights of third parties, the Assignee
shall thereupon serve written notice upon the Assignor containing full details
of such claim, and thereafter, until such claim has been adjudicated or settled,
the Assignee may withhold any moneys due or becoming due to the Assignor pending
the outcome of such claim, up to the reasonablly established amount of the
claim; provided, however, that if no suit shall be filed within one year after
written notice of such claim is given to the Assignor by the Assignee, any
moneys so withheld and not previously paid to Assignor shall then be paid to the
Assignor.
(c) From and after the date of service of a summons in a suit for
infringement filed against the Assignee by a third party for infringement by the
Trademark of the proprietary rights of such third party, any and all payments
thereafter coming due to the Assignor shall be retained by the Assignee until
the suit has been finally adjudicated and then paid in accordance with such
adjudication.
11. Indemnities
The Assignor shall indemnify, save and hold harmless the Assignee and
its successors, agents, licensees, and assigns, and their respective officers,
directors and employees, from and against all claims, demands, actions,
proceedings, liabilities, cost, and expenses, including attorneys' fees, which
may be asserted against or incurred by any of them, arising out of or connected
with any claim by a third party which is inconsistent with any of the
representations, warranties, covenants or agreements made by the Assignor in
this Agreement, or by reason of the exercise of any of the rights granted or
purported to be granted by the Assignor in this Agreement; provided, however,
that (i) Assignee promptly notifies Assignor in writing of such claim, (ii)
Assignee gives Assignor sole control of the defense and all related settlement
negotiations, (iii) Assignee provides Assignor with the assistance, information,
and authority reasonably necessary to perform the above and (iv) that in the
event of a third party claim, such third party claim is made within three years
of the date hereof. Expenses incurred by Assignee in providing such assistance
shall be reimbursed by Assignor. Assignee may also participate in the defense of
a claim at its option and its own expense. Assignor shall not, without the prior
written consent of Assignee, effect any settlement or compromise of a claim in
which Assignee
- 4 -
<PAGE>
is a party, unless such settlement or compromise includes an unconditional
release of Assignee from all such liability. Assignor authorizes the Assignee to
withhold any and all sums which become due to the Assignor under this or any
other agreement between the parties until such claim, action, or proceeding
shall have been disposed of or the breach of any of the Assignor's
representations, warranties, covenants or agreements hereunder shall have been
cured.
12. Non-Waiver
The failure of either party, at any time, to require the strict
performance by the other of any agreement, term, provision, covenant or
condition hereof shall in no way affect its right to enforce the same, nor shall
the failure of either party to act with respect to any breach of any agreement,
term, provision, covenant or condition hereof by the other party be taken or
held to be a waiver of any succeeding breach thereof, or as a waiver of the
agreement, term, provisions, covenant or condition itself.
13. Arbitration
Any controversy or claim relating to or arising out of this Agreement or
the breach thereof shall be settled by arbitration by three arbitrators in New
York City, one to be selected by Assignor, one to be selected by Assignee and
one to be selected the two arbitrators so named, in accordance with the United
States Arbitration Act (Title 9, U. S. Code) and under the auspices and rules of
the American Arbitration Association then in effect. Each party may serve no
more than three requests for production of documents. If disputes arise
concerning these requests, the arbitrators shall have sole and complete
discretion to determine such disputes. The arbitrators shall give effect to
statutes of limitation in determining any claim, and any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrators. The
arbitrators shall deliver a written opinion setting forth findings of fact,
conclusions of law and the rationale for the decision. The arbitrators shall
reconsider the decision once upon motion and at the expense of a party. Judgment
upon the decision rendered by the arbitrators may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a waiver of
the right of any party, including the plaintiff, to submit the controversy or
claim to arbitration if the other party contests such action for judicial
relief. No provision of this Paragraph shall limit the right of a party to
obtain provisional or ancillary remedies from a court of competent jurisdiction
before, after, or during the pendency of any arbitration.
14. Assignees's Default
Should the Assignee fail or refuse, within 30 days after written demand,
to furnish or cause to be furnished royalty statements as required in Paragraph
4 hereof, or to give the Assignor access to its books and records as required in
Paragraph 7 hereof; or in the event that the Assignee shall fail to make payment
of any royalty due, within 30 days after written demand therefor, then,
notwithstanding the provisions of paragraph 13, Assignee may bring suit in
federal or state court in New York City for legal or equitable relief to protect
or enforce its
- 5 -
<PAGE>
rights herein.
15. Severability
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
16. Binding Effect
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns, but this Agreement and any rights hereunder
may not be assigned by the Assignor without the prior written consent of the
Assignee.
17. Construction
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof. This Agreement may not be
changed or discharged orally. This Agreement shall be construed and interpreted
in accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
D&D Design and Details, Limited
By:
Title:
Cable & Co. Worldwide, Inc.
By: Martin C. Licht
Title: Secretary
- 6 -
<PAGE>
Exhibit 1
TRADEMARKS
1. Bacco Bucci
<PAGE>
Exhibit 2
TERRITORY
I. All of Europe including but not limited to:
1. Albania
2. Andorra
3. Austria
4. Belgium
5. Bulgaria
6. Czech Republic
7. Cyprus
8. Channel Islands
9. Denmark
10. Finland
11. France
12. Germany
13. Greece
14. Ireland
15. Iceland
16. Hungary
17. Italy
18. Liechtenstein
19. Luxembourg
20. Malta
21. Monaco
22. Norway
23. Netherlands
24. Poland
25. Portugal
26. Rumania
27. Russia (former Soviet Union)
28. San Marino
29. Spain
30. Sweden
31. Switzerland
32. Ukraine
33. United Kingdom
34. Yugoslavia (former)
II. Africa, Asia, Asia Minor, Australia, the Pacific Islands, North America,
Central America, South America and the Caribbean.and all other parts of the
world except Europe.
<PAGE>
Exhibit 3
SCHEDULE OF LIMITATIONS OR ADVERSE CLAIMS
<PAGE>
Exhibit 4
SCHEDULE OF TRADEMARK REGISTRATIONS
1. Austria
2. Belgium
3. Bulgaria
4. Czech Republic
5. Channel Islands
6. Denmark
7. France
8. Germany
9. Hungary
10. Italy
11. Liechtenstein
12. Luxembourg
13. Monaco
14. Netherlands
15. Portugal
16. Rumania
17. Russia (former Soviet Union)
18. Spain
19. Sweden
20. Switzerland
21. Ukraine
22. Yugoslavia (former)
[Add other registrations]
<PAGE>
Exhibit 5
SCHEDULE OF KNOWN INFRINGEMENTS
<PAGE>
Exhibit 6
ASSIGNMENT OF TRADEMARK
KNOW ALL MEN BY THESE PRESENTS that the undersigned, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and pursuant to a certain agreement dated 1997, between the
undersigned and Cable & Co. Worldwide, Inc., of 724 Fifth Avenue, New York, New
York, 10018 hereinafter called the Assignee, has granted, sold, assigned, and
delivered to, and does hereby grant, sell, assign, and deliver to, the Assignee,
its successors, and assigns all right title and interest to "Bacco Bucci",
hereinafter called the Trademark, together with the trademark thereof and all
rights, title and interest therein and thereto throughout the Territory. The
undersigned represents and warrants that the Trademark is its sole and exclusive
property; that, subject to the above mentioned agreement and the limitations
disclosed on Exhibit 1 thereto, it has not heretofore pledged, mortgaged,
assigned, or otherwise granted any rights in the Trademark or any part thereof
or any interest therein in any part of the Territory, and that there exists no
adverse claim thereupon or thereto. The undersigned acknowledges that the
Assignee has full right and authority to secure trademark in the Trademark
throughout the Territory and to have and to hold such copyright for the full
terms.
In witness whereof the undersigned has caused this document to be
executed by its duly authorized officer.
D&D Design and Details, Limited
By:
Title:
<PAGE>
.......................................................
STATE OF NEW YORK )
)
) SS.:
)
COUNTY OF NEW YORK )
.......................................................
On the ____ day of ________, 1997, before me personally came
Alberto Salvucci, to me known, who, being by me duly sworn, did depose and say
that he resides in
, Italy that he is the Chairman of D&D Design and Details,
Limited, the corporation described in and which executed the above instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation; and that he signed his name thereto by like
order.
---------------------------------
Notary Public
- 2 -
ASSIGNMENT OF TRADEMARK
AGREEMENT, made as of July 29, 1997, between Cable & Co. S.R.L., a
corporation organized under the laws of Italy with an address at Via Biagiotti,
9 62100 Macerata, Italy ("Assignor"), and Cable & Co. Worldwide, Inc., a
Delaware corporation, with an address at 724 Fifth Avenue, New York, New York,
New York, 10019 ("Assignee").
WHEREAS, Assignor has adopted, used and is using certain marks in
connection with the design, manufacture, sales and licensing of men's footwear;
and
WHEREAS, Assignee wishes to acquire all of Assignor's rights in and to
such marks and any corresponding registrations and applications for registration
as provided herein.
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Assignment
The Assignor sells, assigns, grants, transfers, sets over, and delivers
to the Assignee, its successors and assigns, all of Assignor's right, title and
interest in and to the trademarks and trade names set forth on Exhibit 1 hereto
(the "Trademarks"), in and throughout the jurisdictions set forth on Exhibit 2
hereto (the "Territory"), to have and to hold such trademark and all rights of
whatsoever nature thereunder in perpetuity.
2. Assignor's Warranties
The Assignor represents and warrants that
(a) the Trademarks are its sole and exclusive property;
(b) it has the full right and power to make this Agreement;
(c) it has not pledged, mortgaged, assigned, or otherwise granted
any rights in the Trademarks or any part thereof or any interest therein in any
part of the Territory, and there exists no adverse claim thereupon or thereto,
except as noted on Exhibit 3 hereto;
(d) trademark registrations have been secured therein by the
Assignee in each jurisdiction in the Territory listed on Exhibit 4 hereto, or
application has been made therefor and such applications and registrations are
current, valid and (as to registrations) enforceable, except as noted on Exhibit
4,
<PAGE>
(e) to the best of Assignor's knowledge, including constructive
knowledge of any state of affairs that would be disclosed by the reasonable
exercise of ordinary care by an owner and licensor of the Trademarks, neither
the Trademarks nor any part thereof infringe upon the title, trademark, trade
name or property rights of any person, firm or corporation anywhere in the
world, except as noted on Exhibit 5 hereto.
3. Royalties and Payments
The Assignee shall use reasonable efforts to exploit the Trademarks, in
accordance with its business judgment, and shall pay to the Assignor or its
affiliate, in respect of the Trademarks, the following consideration:
(a) that number of shares of common stock of the Assignee, such
that, following the issuance of such stock and the stock to be issued
simultaneously to D&D Design and Details, Limited, Assignor together with D&D
Design and Details Limited will hold shares equal to 25% of the outstanding
common stock of the Assignee less 404,000 shares; and
(b) $US 100,000.
Except as specifically provided in this Paragraph 3, no other royalties
or payments of any kind shall be due from the Assignee to the Assignor.
4. Assignments of Trademark Registrations
(a) The Assignor shall deliver to the Assignee an assignment of
trademark registration or other instrument of authorization relating to each of
the Trademarks with respect to each jurisdiction within the Territory in form
reasonably satisfactory to Assignee and legally sufficient under the laws of
each such jurisdiction to effect the registration of each of the Trademarks by
Assignee in such jurisdictions. The Assignee shall have the right to expend such
sums as may be necessary to obtain such instruments and register such assignment
of Trademark registrations in any jurisdiction within the Territory. In the
event any registrations assigned by Assignor prove legally insufficient, all
sums by reasonably expended by Assignee in perfecting such registrations shall
be for the account of the Assignor and shall be charged to the Assignor and may
be deducted by the Assignee from any moneys due to the Assignor under this or
any other agreement between the parties.
(a) Simultaneously with the execution hereof, the Assignor shall
execute the short-form assignment of the Trademarks which is attached hereto as
Exhibit 6.
5. Assignability
Nothing contained in this Agreement shall prevent the Assignee from
authorizing its licensees, agents, and representatives, in any jurisdiction
within the Territory, to exercise exclusive rights in the Trademarks in the
Territory or any jurisdiction therein. Nothing in this
- 2 -
<PAGE>
Agreement shall prevent the Assignee from granting a license to exercise
exclusive rights to the Trademarks in any or all jurisdictions within the
Territory.
6. Further Assurances
Assignor agrees, upon the reasonable request of Assignee, to execute,
acknowledge and deliver to the other any and all instruments or documents, and
to do any and all such acts which may be reasonably necessary to give full force
and effect to the purpose and intentions of the terms set forth in this
Agreement, and in particular, to effect the transfer or registration of the
Trademarks in any jurisdiction within the Territory.
7. Notices
Written demands and notices provided for herein shall be sent by
registered mail or reputable international overnight courier to the addresses
set forth at the beginning of this Agreement.
8. Infringements
(a) Any legal action brought by the Assignee against any alleged
infringer of the Trademarks shall be initiated and prosecuted at Assignee's sole
expense, and any recovery made as a result thereof shall be the sole property of
the Assignee.
(b) If a claim is made against the Assignee alleging that all of
the Trademarks is an infringement of the rights of third parties, the Assignee
shall thereupon serve written notice upon the Assignor containing full details
of such claim, and thereafter, until such claim has been adjudicated or settled,
the Assignee may withhold any moneys due or becoming due to the Assignor pending
the outcome of such claim, up to the reasonablly established amount of the
claim; provided, however, that if no suit shall be filed within one year after
written notice of such claim is given to the Assignor by the Assignee, any
moneys so withheld and not previously paid to Assignor shall then be paid to the
Assignor.
(b) From and after the date of service of a summons in a suit for
infringement filed against the Assignee by a third party for infringement by the
Trademark of the proprietary rights of such third party, any and all payments
thereafter coming due to the Assignor shall be retained by the Assignee until
the suit has been finally adjudicated and then paid in accordance with such
adjudication.
9. Indemnities
The Assignor shall indemnify, save and hold harmless the Assignee and
its successors, agents, licensees, and assigns, and their respective officers,
directors and employees, from and against all claims, demands, actions,
proceedings, liabilities, cost, and expenses, including attorneys' fees, which
may be asserted against or incurred by any of them, arising out of or
- 3 -
<PAGE>
connected with any claim by a third party which is inconsistent with any of the
representations, warranties, covenants or agreements made by the Assignor in
this Agreement, or by reason of the exercise of any of the rights granted or
purported to be granted by the Assignor in this Agreement; provided, however,
that (i) Assignee promptly notifies Assignor in writing of such claim, (ii)
Assignee gives Assignor sole control of the defense and all related settlement
negotiations, (iii) Assignee provides Assignor with the assistance, information,
and authority reasonably necessary to perform the above and (iv) that in the
event of a third party claim such third party claim is made within three years
of the date hereof. Expenses incurred by Assignee in providing such assistance
shall be reimbursed by Assignor. Assignee may also participate in the defense of
a claim at its option and its own expense. Assignor shall not, without the prior
written consent of Assignee, effect any settlement or compromise of a claim in
which Assignee is a party, unless such settlement or compromise includes an
unconditional release of Assignee from all such liability. Assignor authorizes
the Assignee to withhold any and all sums which become due to the Assignor under
this or any other agreement between the parties until such claim, action, or
proceeding shall have been disposed of or the breach of any of the Assignor's
representations, warranties, covenants or agreements hereunder shall have been
cured.
10. Non-Waiver
The failure of either party, at any time, to require the strict
performance by the other of any agreement, term, provision, covenant or
condition hereof shall in no way affect its right to enforce the same, nor shall
the failure of either party to act with respect to any breach of any agreement,
term, provision, covenant or condition hereof by the other party be taken or
held to be a waiver of any succeeding breach thereof, or as a waiver of the
agreement, term, provisions, covenant or condition itself.
11. Arbitration
Any controversy or claim relating to or arising out of this Agreement or
the breach thereof shall be settled by arbitration by three arbitrators in New
York City, one to be selected by Assignor, one to be selected by Assignee and
one to be selected the two arbitrators so named, in accordance with the United
States Arbitration Act (Title 9, U. S. Code) and under the auspices and rules of
the American Arbitration Association then in effect. Each party may serve no
more than three requests for production of documents. If disputes arise
concerning these requests, the arbitrators shall have sole and complete
discretion to determine such disputes. The arbitrators shall give effect to
statutes of limitation in determining any claim, and any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrators. The
arbitrators shall deliver a written opinion setting forth findings of fact,
conclusions of law and the rationale for the decision. The arbitrators shall
reconsider the decision once upon motion and at the expense of a party. Judgment
upon the decision rendered by the arbitrators may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a waiver of
the right of any party, including the plaintiff, to submit the controversy or
claim to arbitration if the other party contests such action for judicial
relief. No provision of this Paragraph shall limit
- 4 -
<PAGE>
the right of a party to obtain provisional or ancillary remedies from a court of
competent jurisdiction before, after, or during the pendency of any arbitration.
12. Severability
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Binding Effect
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns, but this Agreement and any rights hereunder
may not be assigned by the Assignor without the prior written consent of the
Assignee.
14. Construction
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof. This Agreement may not be
changed or discharged orally. This Agreement shall be construed and interpreted
in accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
Cable & Co. S.R.L
By: Alberto Salvucci
Title: Chairman
Cable & Co. Worldwide, Inc.
By: Martin C. Licht
Title: Secretary
- 5 -
<PAGE>
Exhibit 1
TRADEMARKS
1. Cable & Co.
<PAGE>
Exhibit 2
TERRITORY
I. All of Europe except the United Kingdom, including, but not limited to
1. Albania
2. Andorra
3. Austria
4. Belgium
5. Bulgaria
6. Czech Republic
7. Cyprus
8. Channel Islands
9. Denmark
10. Finland
11. France
12. Germany
13. Greece
14. Ireland
15. Iceland
16. Hungary
17. Italy
18. Liechtenstein
19. Luxembourg
20. Malta
21. Monaco
22. Norway
23. Netherlands
24. Poland
25. Portugal
26. Rumania
27. Russia (former Soviet Union)
28. San Marino
29. Spain
30. Sweden
31. Switzerland
32. Ukraine
33. Yugoslavia (former)
II. Africa, Asia Minor, Australia, the Pacific Islands and all parts of the
world other than the United Kingdom, Asia, North, Central and South America and
the Caribbean.
<PAGE>
Exhibit 3
SCHEDULE OF LIMITATIONS OR ADVERSE CLAIMS
<PAGE>
Exhibit 4
SCHEDULE OF TRADEMARK REGISTRATIONS
1. Austria
2. Belgium
3. Bulgaria
4. Czech Republic
5. Channel Islands
6. Denmark
7. France
8. Germany
9. Hungary
10. Italy
11. Liechtenstein
12. Luxembourg
13. Monaco
14. Netherlands
15. Portugal
16. Rumania
17. Russia (former Soviet Union)
18. Spain
19. Sweden
20. Switzerland
21. Ukraine
22. Yugoslavia (former)
[Add other registrations]
<PAGE>
Exhibit 5
SCHEDULE OF KNOWN INFRINGEMENTS
<PAGE>
Exhibit 6
ASSIGNMENT OF TRADEMARK
KNOW ALL MEN BY THESE PRESENTS that the undersigned, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and pursuant to a certain agreement dated 1997, between the
undersigned and Cable & Co. Worldwide, Inc., of 724 Fifth Avenue, New York, New
York, New York, 10019, hereinafter called the Assignee, has granted, sold,
assigned, and delivered to, and does hereby grant, sell, assign, and deliver to,
the Assignee, its successors, and assigns all right title and interest to "Cable
& Co", hereinafter called the Trademark, together with the trademark thereof and
all rights, title and interest therein and thereto throughout the Territory. The
undersigned represents and warrants that the Trademark is its sole and exclusive
property; that, subject to the above mentioned agreement and the limitations
disclosed on Exhibit 1 thereto, it has not heretofore pledged, mortgaged,
assigned, or otherwise granted any rights in the Trademark or any part thereof
or any interest therein in any part of the Territory, and that there exists no
adverse claim thereupon or thereto. The undersigned acknowledges that the
Assignee has full right and authority to secure trademark in the Trademark
throughout the Territory and to have and to hold such copyright for the full
terms.
In witness whereof the undersigned has caused this document to be
executed by its duly authorized officer.
Cable & Co. S.R.L
D&D Design and Details, Limited
By: Alberto Salvucci
Title: Chairman
<PAGE>
..........................................................
STATE OF NEW YORK )
)
) SS.:
)
COUNTY OF NEW YORK )
..........................................................
On the ____ day of ________, 1997, before me personally came
Alberto Salvucci, to me known, who, being by me duly sworn, did depose and say
that he resides in
, Italy that he is the Chairman of Cable & Co. S.P.R.L the
corporation described in and which executed the above instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation; and that he signed his name thereto by like order.
---------------------------------
Notary Public
- 2 -
Exhibit 5.1
LANE & MITTENDORF LLP
320 Park Avenue
New York, New York 10022
(212) 508-3200
Facsimile: (212) 508-3230
August 6, 1997
Cable & Co. Worldwide, Inc.
724 Fifth Avenue
New York, New York 10019
Re: Registration Statement on Form S-3
Gentlemen:
We refer to the offering (the "Offering") of 13,690,000 the
shares of common stock, $.01 par value (the "Common Stock"), of Cable & Co.
Worldwide, Inc. a Delaware corporation (the "Company"), being registered for
resale on behalf of the Selling Stockholders as described in the Registration
Statement on Form S-3 to be filed with the Securities and Exchange Commission as
subsequently amended from time to time (collectively, the "Registration
Statement").
In furnishing our opinion, we have examined copies of the
Registration Statement and the Exhibits thereto. We have conferred with officers
of the Company and have examined the originals or certified, conformed or
photostatic copies of such records of the Company, certificates of officers of
the Company, certificates of public officials, and such other documents as we
have deemed relevant and necessary under the circumstances as the basis of the
opinion expressed herein. In all such examinations, we have assumed the
authenticity of all documents submitted to us as originals or duplicate
originals, the conformity to original documents of all document copies, the
authenticity of the respective originals of such latter documents, and the
correctness and completeness of such certificates. Finally, we have obtained
from officers of the Company such assurances as we have considered necessary for
the purposes of this opinion.
Based upon and subject to the foregoing and such other matters of
fact and questions of law as we have deemed relevant in the circumstances, and
in reliance thereon, it is our opinion that the shares of Common Stock, to be
sold for the account of the Selling Stockholders, have been duly authorized,
validly issued and are fully paid and nonassessable.
We hereby consent to the use of our name in the Registration
Statement and to the inclusion of this opinion in the Exhibits to the
Registration Statement.
<PAGE>
It should be noted that Martin C. Licht, a partner of this firm,
serves in a business capacity on the Board of Directors of the Company. No
knowledge that he may have as a result of his business association with the
Company is to be imputed to this firm.
We are admitted to the practice of law only in the State of New
York. The opinions set forth herein are based upon the laws of the State of New
York, the corporate law of the State of Delaware and the Federal laws of the
United States.
This opinion is limited to the matters set forth herein, and may
not be relied upon in any matter by any other person or used for any other
purpose other than in connection with the corporate authority for the issuance
of the shares of Common Stock pursuant to and as contemplated by the
Registration Statement.
Very truly yours,
LANE & MITTENDORF LLP
Exhibit 23.1
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors
Cable & Co. Worldwide, Inc.
We hereby consent to incorporation by reference in the Registration Statement on
Form S-3 of our report dated Febrauary 17, 1997, except for the fourth paragraph
of Note 5, as to which the date is March 18, 1997, on the consolidated balance
sheet of Cable & Co, Worldwide, Inc. and Subsidiary as of December 31, 1996, and
the related consolidated statements of operations, shareholders' equity, and
cash flows for each of the two years in the period then ended, which report
appears in the December 31, 1996 annual report on Form 10-KSB of Cable & Co.
Worldwide, Inc.
/s/ Goldstein Gloub Kessler & Company, P.C.
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GOLDSTEIN GOLUB KESSLER & COMPANY, P.C.
New York, New York
August 7, 1997
