As filed with the Securities and Exchange Commission on January 5, 1996
Registration No. 33-62697
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
Form S-3
Registration Statement
Under
The Securities Act of 1933
----------------------
Candie's, Inc.
(Exact name of registrant as specified in its charter)
Delaware 11-2481903
(State or other (I.R.S. employer
jurisdiction of identification
incorporation or number)
organization)
2975 Westchester Avenue
Purchase, New York 10577
(914) 694-8600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Neil Cole
President and Chief Executive Officer
Candie's, Inc.
2975 Westchester Avenue
Purchase, New York 10577
(914) 694-8600
(Name, address, including zip code, and telephone
number, including area code of agent for service)
---------------------
Copies to:
Robert J. Mittman, Esq.
Tenzer, Greenblatt, Fallon & Kaplan
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 573-4353
Telecopier: (212) 573-4313
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box |_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box |X|
---------------------------
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
<PAGE>
EXPLANATORY NOTE
Pursuant to Rule 429 promulgated under the Securities Act of 1933, the
prospectus of which this Registration Statement forms a part also covers (i)
2,950,000 shares of Common Stock issuable upon exercise of the Class B and Class
C Warrants and (ii) 653,646 shares of Common Stock currently issuable upon
exercise of certain underwriter's warrants, which shares were previously
registered pursuant to the Registration Statement on Form S-3 (file no. 33-
53878) of the registrant (then known as Millfeld Trading Co., Inc.)
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<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Shares Amount to Offering Aggregate Amount of
to be be Price Offering Registration
Registered Registered(1) Per Unit(2) Price(2) Fee(2)
- ---------- ------------ ---------- ------- -----
<S> <C> <C> <C> <C>
Common 2,975,732 $2.42 $7,201,271 $2,483.20
Stock shares(3)
($.001 Par
Value)
Common 3,603,646 (4) (4) (4)
Stock shares
($.001 Par (3)(4)
value)
PREVIOUSLY PAID................................................. $3,985.38
TOTAL DUE....................................................... $ 53.82(5)
===========
====================================================================================================================================
</TABLE>
(1) Of the shares of Common Stock being registered, (i) 2,950,000
shares are issuable upon exercise of publicly-traded redeemable
Class B and Class C Common Stock Purchase Warrants of the
registrant, and (ii) the remaining 3,629,378 shares are for the
account of selling stockholders who acquired such shares or
warrants or options to acquire such shares from the registrant in
private transactions or, in the case of Whale Securities Co., L.P.
("Whale") and its designees, in connection with the Company's 1993
public offering. No other shares of the registrant's Common Stock
are being registered pursuant to this offering.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) of the Securities Act of 1933, as amended, (the
"Act") the registration fee has been calculated based upon the average
of the high and low sale prices as reported in the consolidated
reporting system (NASDAQ) for the registrant's Common Stock on January
2, 1996.
(3) Pursuant to Rule 416 of the Act, there are also being registered
hereunder such additional shares as may be issued to the selling
stockholders because of future stock dividends, stock distributions,
stock splits or similar capital readjustments including any adjustments
due to anti-dilution provisions contained in outstanding warrants
and/or options.
(4) Represents (i) 2,950,000 shares of Common Stock issuable upon
exercise of registrant's redeemable Class B and Class C Common
Stock Purchase Warrants and (ii) 653,646 shares of Common Stock
currently issuable upon exercise of certain underwriter's warrants
of the registrant issued to Whale and its designees. All of the
shares were previously registered pursuant to amendment no. 2 to
the registrant's registration statement on Form S-1 (file no. 33-
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<PAGE>
53878) for which a filing fee was previously paid. Pursuant to
Rule 429 under the Act, no additional fee is being paid with
respect to such shares. See "Explanatory Note".
(5) The total due represents payment for 64,500 additional shares of
Common Stock being registered in this Amendment No. 1.
---------------------
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<PAGE>
Candie's, Inc.
FORM S-3
------------------------------------
Cross-Reference Sheet
Pursuant to Item 501(b) of Regulation S-B, showing the location in the
Prospectus of the information required by Part I of Form S-3.
FORM S-3 ITEM
NUMBER AND CAPTION HEADING IN PROSPECTUS
------------------ ---------------------
1. Forepart of Registration Outside Front Cover Page
Statement and Outside of Prospectus
Front Cover Page of Prospectus
2. Inside Front and Outside Inside Front and Outside
Back Cover Pages of Back Cover Pages of
Prospectus Prospectus
3. Summary Information, Risk Prospectus Summary;
Factors and Ratio of Risk Factors
Earnings to Fixed Charges
4. Use of Proceeds Prospectus Summary;
Use of Proceeds
5. Determination of Offering Front Cover Page of
Price Prospectus; Plan of
Distribution
6. Dilution Not Applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Front Cover Page of
Prospectus; Plan of
Distribution
9. Description of Securities Not Applicable
to be Registered
10. Interests of Named Experts Legal Matters
and Counsel
11. Material Changes Risk Factors; Information
Incorporated by Reference
Recent Developments
12. Incorporation of Certain Information Incorporated by
Information by Reference Reference
13. Disclosure of Commission Indemnification
Position on
Indemnification
for Securities Act
Liabilities
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<PAGE>
PROSPECTUS
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6,579,378 Shares
CANDIE'S, INC.
Common Stock
This Prospectus covers 1,475,000 shares of common stock, $.001 par value
(the "Common Stock"), of Candie's, Inc. (the "Company"), issuable upon exercise
of redeemable Class B Common Stock Purchase Warrants (the "Class B Warrants")
and an additional 1,475,000 shares of Common Stock issuable upon exercise of
redeemable Class C Common Stock Purchase Warrants (the "Class C Warrants," and
together with the Class B Warrants, sometimes collectively referred to herein as
the "Public Warrants"). The Public Warrants were included in the units sold in
the Company's 1993 public offering. Each Public Warrant entitles the registered
holder thereof to purchase until February 23, 1998, one share of Common Stock at
an exercise price of $4.00 per share (in the case of the Class B Warrants) or
$5.00 per share (in the case of the Class C Warrant), subject to adjustment.
This Prospectus also relates to an offering by certain selling stockholders
(collectively, the "Selling Stockholders") of an aggregate of up to 3,629,378
shares of Common Stock, of which up to 2,200,301 shares are issuable upon the
exercise of warrants and options held by certain of the Selling Stockholders
(the "Selling Stockholder Options,"). The Selling Stockholder Options together
with the Public Warrants are collectively sometimes hereinafter referred to as
the "Derivative Securities".
The Common Stock may be offered from time to time by the Selling
Stockholders through ordinary brokerage transactions in the over-the-counter
market, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at negotiated prices. The Company will not receive any of
the proceeds from the sale of Common Stock by the Selling Stockholders. See
"Selling Stockholders" and "Plan of Distribution."
If all of the Derivative Securities are exercised, of which there can be no
assurance, the Company will receive gross proceeds of approximately $18,700,000.
Any proceeds received by the Company will used for working capital and general
corporate purposes. See "Use of Proceeds".
The Common Stock is traded on the NASDAQ National Market System, under the
symbol "CAND." On January 2, 1996, the last sale price of the Common Stock as
reported on the NASDAQ National Market System was $2.4375 per share.
<PAGE>
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK AND
SHOULD NOT BE PURCHASED BY INVESTORS WHO CANNOT AFFORD THE LOSS
OF THEIR ENTIRE INVESTMENT. SEE "RISK FACTORS."
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 , 1996
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and, in accordance therewith, files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities of the Securities and Exchange Commission located at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at 500 West Madison Street, Chicago, Illinois 60661 and 7 World Trade
Center, New York, New York 10048. Copies of such material can also be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) Annual Report on Form 10-KSB for the fiscal year ended January 31,
1995;
(b) Form 10-KSB/A, Amendment No. 1 to Form 10-KSB for the fiscal year
ended January 31, 1995;
(c) Quarterly Report on Form 10-QSB for the quarterly period ended
April 30, 1995;
(d) Quarterly Report on Form 10-QSB for the quarterly period ended
July 31, 1995;
(e) Form 10-QSB/A, Amendment No. 1 to Form 10-QSB for the fiscal
period ended July 31, 1995;
(f) Quarterly Report on Form 10-QSB for the quarterly period ended
October 31, 1995;
(g) Current Report on Form 8-K for the event dated July 31, 1995; and
(h) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A declared effective on January 19, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this Prospectus
and prior to the termination of the offering of the Common Stock offered hereby
shall be deemed to be incorporated by reference herein and to be a part hereof
on the date of filing of such documents.
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<PAGE>
The Company will furnish without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated herein by reference, except for the
exhibits to such documents. Requests should be directed to Mr. Neil Cole,
Candie's Inc., 2975 Westchester Avenue, Purchase, New York 10577, telephone:
(914) 694-8600.
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<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the more
detailed information and consolidated financial statements, including the notes
thereto, appearing elsewhere in or incorporated by reference into this
Prospectus. Each prospective investor is urged to read this Prospectus in its
entirety.
The Company
The Company and its subsidiaries are engaged primarily in the design,
marketing and importation of a variety of moderately-priced women's and girls'
casual, outdoor and fashion footwear under the CANDIE'S(R) trademark for
distribution to better department and specialty stores nationwide. The Company
also licenses its CANDIE'S(R) trademark to third parties for the sale of other
products under such licenses generally pursuant to exclusive agreements that
require the licensees to pay royalties, including minimum royalties, to the
Company. Such licenses include licenses for the sale of children's footwear and
ladies intimate apparel under the CANDIE'S(R) trademark. The Company also
arranges for the manufacture of footwear products, similar to those produced
under the CANDIE'S(R) mark, for mass market and discount retailers, under one of
the Company's other trademarks or under the private label brand of a retailer.
In addition, the Company sells a variety of men's workboots, hiking boots,
winter boots and outdoor casual shoes designed, marketed and distributed by the
Company's wholly-owned subsidiary, Bright Star Footwear, Inc. ("Bright Star"),
under Bright Star's private label and a brand name licensed by the Company from
third parties specifically for Bright Star (ASPEN(R)). The Company has recently
entered into an agreement with the owner of the BONGO(R) trademark to act as
exclusive licensee to manufacture and market women's footwear in North America
under the BONGO trademark for an initial period expiring July 31, 1998, which
may be extended by the Company under certain circumstances, to July 31, 2001.
During its fiscal year ended January 31, 1994, the Company completed a
restructuring plan (the "Restructuring Plan") which substantially reduced its
liabilities, restructured the terms of continuing obligations, reduced operating
costs and acquired new sources of revenue and capital funds by effecting (i) the
acquisition of the CANDIE'S(R) and other trademarks and the related trademark
licensing business from El Greco, Inc. ("El Greco"), a former subsidiary of New
Retail Concepts, Inc. ("NRC") that was merged into NRC in 1993, and by granting
additional licenses for the distribution of products bearing the CANDIE'S(R)
trademark and entering into license agreements to obtain additional brand name
licenses for Bright Star; (ii) the conversion to equity of an outstanding $3.5
million debenture and
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<PAGE>
certain other liabilities of the Company; (iii) the restructuring of the
Company's institutional debt and the establishment of new credit facilities;
(iv) a 1-for-4.5 reverse stock split; (v) sales of its securities; (vi)
settlement of outstanding U.S. Customs Service claims; and (vii) the corporate
readjustment of the Company's accounts and financial statements in the form of a
"quasi-reorganization" (the "Quasi-Reorganization"). In addition, in March 1993,
Neil Cole, the President and Chief Executive Officer and a director and
principal shareholder of NRC, joined the Company as its new Chairman of the
Board, President and Chief Executive Officer.
Although the Restructuring Plan helped improve the Company's financial
condition, the Company determined that it would have to take further steps
during the fiscal year ending January 31, 1995 ("Fiscal 1995") to further
improve its financial condition. During Fiscal 1995, the Company completed a
further series of transactions as part of a comprehensive plan (the "Financial
Program") intended to significantly improve the Company's financial condition
and help to ensure the Company's financial viability by substantially reducing
operating and other expenses and liabilities while improving cash flow. Among
other things, as part of the Financial Program, the Company reduced its rental
expense by relocating its executive offices and showroom to Westchester County,
New York, eliminated certain trade payables through the issuance of shares of
its Common Stock, settled certain litigation and eliminated approximately $3.4
million of institutional indebtedness.
The Company was incorporated in the State of Delaware in 1978. The
Company's principal executive offices are located at 2975 Westchester Avenue,
Purchase, New York 10577 and its telephone number is (914) 694-8600.
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<PAGE>
The Offering
Common Stock offered.......... 2,950,000 shares issuable by
the Company upon exercise of
the Public Warrants and
3,629,378 shares to be offered
by the Selling Stockholders
Common Stock outstanding(1)... 8,265,995 shares
Common Stock to be outstanding
after the offering(2)......... 13,420,000 shares
Proceeds...................... The Company will not receive
any of the proceeds from the
sale of Common Stock by the
Selling Stockholders. The
Company will receive gross
proceeds of approximately
$18,700,000 if all the
Derivative Securities are
exercised, of which there can
be no assurance. Any proceeds
received by the Company will
be used for working capital
and general corporate pur-
poses. See "Use of Proceeds."
Risk Factors.................. The securities offered hereby
involve a high degree of risk.
See "Risk Factors."
NASDAQ National Market System Symbol-Common Stock... CAND
- -----------------------
(1) Based on shares outstanding on December 29, 1995, not including (i) 54,397
shares issuable upon exercise of outstanding Class A redeemable warrants;
(ii) 2,950,000 shares issuable upon exercise of the Public Warrants; (iii)
an aggregate of 653,646 shares issuable upon exercise of the unit warrants
issued to the underwriter of the Company's March 3, 1993 secondary public
offering of its securities and its designees and the warrants underlying
such unit warrants ("Underwriter's Warrants"); (iv) 194,300 shares issuable
upon exercise of outstanding stock options under the Company's 1989 Stock
Option Plan (the "Plan"); (v) 27,922 shares reserved for issuance upon
exercise of options available for future grant under the Plan; and (vi)
3,963,877 shares issuable upon exercise of other outstanding non-Plan
options and warrants.
(2) Assumes exercise of all of the Derivative Securities.
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<PAGE>
RISK FACTORS
The securities offered hereby involve a high degree of risk. Each
prospective investor should carefully consider the following risk factors before
making an investment decision.
1. History of Significant Losses; Working Capital Deficit; Accumulated
Deficit; Limited Relevant Operating History; Explanatory Paragraph in
Independent Accountants' Report. The Company sustained a net loss of $6,321,092
for its fiscal year ended January 31, 1994. In addition, although as a result of
an extraordinary gain from the extinguishment of debt, the Company achieved net
income of $767,259 for its fiscal year ended January 31, 1995, it sustained an
operating loss of $1,390,524 for such period. The Company sustained a net loss
of $629,719 for the three months ended April 30, 1995 and achieved net income of
$1,105,645 and $705,642 for the three months ended July 31, 1995 and October 31,
1995, respectively. In addition, at October 31, 1995, the Company had a working
capital deficit of $246,430 and an accumulated deficit of $3,598,081. Upon
consummation of this offering, the Company will most likely continue to have a
substantial working capital deficit. In addition, although the Company commenced
both the shift in its business emphasis and the reorganization of its business
operations prior to the Quasi- Reorganization, the Company did not commence full
operations in connection with its CANDIE'S(R) footwear until it acquired the
CANDIE'S(R) trademark and the third-party licenses relating thereto in March
1993. Consequently, the Company has a limited operating history upon which an
evaluation of its prospects in connection with its CANDIE'S(R) operations may be
made and such prospects must be considered in light of the risks, expenses and
difficulties frequently encountered in connection with the establishment of a
new business or product and the competitive environment in which the Company
operates.
The Company anticipates that it will continue to incur substantial
operating expenses, including product development and promotional costs relating
to the CANDIE'S(R) trademark, costs relating to its Unbranded and Bright Star
Divisions (in connection with the ASPEN(R) trademark licenses) and costs related
to its use of the BONGO license. These expenses could result in continuing and
significant operating losses for the foreseeable future, until such time, if
ever, as the Company is able to attain adequate sales levels. There can also be
no assurance that the Company will be able to successfully implement its
marketing strategy or achieve and maintain profitable operations over any
extended period of time. The Company's independent accountants have included an
explanatory paragraph in their report on the Company's financial statements
included in its Form 10-KSB for the fiscal year ended January 31, 1995, stating
that the Company's working capital deficit and recurring losses raise
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<PAGE>
substantial doubt about its ability to continue as a going concern.
2. Uncertainty of Market Acceptance. Prior to March 3, 1993, the Company's
activities with respect to the sale of footwear bearing the CANDIE'S(R)
trademark were primarily directed toward design, development and preliminary
marketing activities. Although the Company has instituted an extensive
advertising campaign and has been marketing and shipping its CANDIE'S(R)
footwear products for more than the past two years, achieving continued market
acceptance of the Company's existing products or market acceptance of any future
products which may be offered by the Company and therefore, the Company's
ability to maintain or increase market share is subject to a high degree of
uncertainty. Achieving market acceptance by new customers or continued market
acceptance by existing or past customers will require substantial additional
marketing efforts and the expenditure of significant funds to create a demand
for such products. Moreover, there can be no assurance that such additional
efforts and expenditures will result in either increased market acceptance of
the Company's products or increased sales by the Company. Inasmuch as the
Company is materially dependent on the sale of products bearing the CANDIE'S(R)
trademark for a significant portion of its revenues, the failure of the
CANDIE'S(R) trademark or products to achieve market acceptance would have a
material adverse effect on the Company.
3. Significant Capital Requirements; Possible Need for Additional
Financing. The capital requirements associated with the manufacture and sale of
the Company's products have been and will continue to be significant. The
Company has been substantially dependent on financing from the arrangement with
its factor and sales of its securities in order to finance its working capital
requirements. Although the Company had a significant working capital deficit at
October 31, 1995, it currently believes that it has sufficient cash and
borrowing capacity to fund its operations as presently conducted for at least
the balance of its current fiscal year. Nevertheless, the Company will require
financing should it seek to expand its business operations. Moreover, in the
event that projected cash flow prove to be insufficient to satisfy the Company's
cash requirements, the Company may be required to seek additional funds through
public or private equity or debt financing, which may result in dilution to the
then existing shareholders of the Company. Failure of the Company to obtain any
required additional financing on terms acceptable to it, or at all, could have a
material adverse effect upon the Company's business and could require it to
curtail its activities.
4. Effect of Recession on the Fashion Industry; Rapidly Changing Fashion
Trends. The fashion industry is cyclical, with purchases of apparel and related
goods tending to
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<PAGE>
decline during recessionary periods when disposable income is low. Although the
Company believes that its moderately-priced products are more appealing to
consumers in a recessionary environment, there can be no assurance that a poor
general economic climate will not have a negative impact on the Company's
ability to compete for limited consumer resources. Moreover, the Company
believes that its future success depends in substantial part on its ability to
anticipate and respond to changing consumer demands and fashion trends in a
timely manner. The footwear and wearing apparel industries are generally subject
to constantly changing fashion trends. If 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, which may have an adverse effect on the
Company's business. In addition, the Company operates under substantial time
constraints which require it to have production orders in place at specified
times in advance of its customers' retail selling seasons. If the Company's
suppliers fail to meet their delivery date requirements pursuant to their
purchase orders with the Company, the Company will be unable to meet its
delivery date requirements pursuant to its purchase orders with its customers.
This could result in the cancellation of purchase orders both by the Company and
its customers, reducing the sales of the Company and having an adverse effect on
revenues and earnings. There can be no assurance that the Company will be able
to adequately meet these demands, or that it will not be required to expend
substantial sums in order to adequately respond to such demands.
5. Dependence upon Unaffiliated Manufacturers and Suppliers. The Company
does not own or operate any manufacturing facilities. All of the Company's
footwear products are manufactured to its specifications by the Company's
suppliers (either directly or through third party manufacturers on a subcontract
basis). Although the Company may from time to time enter into contracts with
certain of its suppliers, it does not intend to enter into contractual
relationships with all of them. Moreover, there can be no assurance that the
Company will be able to enter into contracts with any of its suppliers on terms
favorable to the Company, or at all. Except for an agreement in principle with
certain trade creditors to provide a line of credit to the Company for the
manufacturing and purchasing of footwear, the Company has no contracts with any
of the manufacturers or suppliers of its footwear products; therefore, any or
all of these companies could terminate their relationship with the Company at
any time. In addition, the manufacturers of the Company's products have limited
production capacity and may not, in all instances, have the capability to
satisfy the Company's manufacturing requirements. The Company believes that
alternative manufacturing sources could be located should the manufacturing
capacity required be in excess of that of its current manufacturers.
Nevertheless, there can be no assurance that, in the future, the capacity of
such manufacturers will be sufficient or that alternative manufacturing sources
will be
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<PAGE>
available on a cost effective basis. Accordingly, the Company's dependence upon
third parties for the manufacture of its products could have an adverse effect
on the Company's ability to deliver its products on a timely and competitive
basis and could have an adverse effect on the Company's operations. See "Recent
Developments."
In addition, most raw materials necessary for the manufacture of the
Company's footwear are purchased by the manufacturers from suppliers located in
the country of manufacture. The Company does not intend to maintain contractual
relationships with any of these suppliers. Although the Company believes that
the raw materials required will be available from various alternative sources,
there can be no assurance that any such materials will be available on a timely
or cost-effective basis.
6. Risks Relating to Foreign Manufacturing. The Company is subject to
various risks associated with the manufacture of products in foreign countries,
including political and economic instability, shipping delays, restrictions on
transfer of funds, and customs duties, tariffs and import quotas, any of which
could adversely affect the Company's ability to obtain products on a timely and
competitive basis. In addition, the Company sells products on a "landed" basis
and, therefore, assumes all risk of loss, damage or destruction until such
products are delivered to and accepted by the customer.
Since most of the Company's suppliers are foreign, any weakening of the
United States dollar in relation to relevant foreign currencies, as has occurred
in recent years, could result in increased costs to the Company if suppliers
raise prices to compensate for the weakening of the dollar. In addition, all
products manufactured overseas are subject to United States tariffs, duties and
quotas. Other restrictions on the importation of footwear and apparel are
periodically considered by the United States Congress and no assurances can be
given that tariffs or duties on the Company's goods may not be raised, resulting
in higher costs to the Company, or that import quotas respecting such goods may
not be lowered. Deliveries of products from the Company's existing foreign
suppliers could be restricted or delayed by the imposition of lower quotas and
there can be no assurance that the Company would, in such event, be able to
obtain similar quality products, at equally favorable prices, from domestic
suppliers or from other foreign suppliers whose quotas have not been exceeded by
the supply of goods to existing customers.
7. Competition. The footwear and apparel industries are extremely
competitive in the United States and the Company faces intense and substantial
competition in each of its product lines. In general, competitive factors
include quality, price, style, name recognition and service. Although the
Company
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<PAGE>
believes that it can compete favorably in these areas, there can be no assurance
thereof. In addition, the presence in the marketplace of various fads and the
limited availability of shelf space can affect competition. Many of the
Company's competitors have greater financial, distribution, marketing and other
resources than the Company and have achieved significant name recognition for
their brand names, such as Esprit(R), Bass(R) and White Mountain(R). There can
be no assurance that the Company will be able to compete successfully.
8. Trademark Ownership. The Company owns federal trademark registrations
for CANDIE'S(R), BRIGHT STAR(R) and ASPEN(R), among others, and believes that
such trademarks, especially the CANDIE'S(R) trademark, have significant value
and are important to the marketing of the Company's products and those of its
licensees. There can be no assurance that the Company's trademarks do not or
will not violate the proprietary rights of others, that they would be upheld if
challenged or that the Company would not, in such an event, be prevented from
using the trademarks, any of which events could have an adverse effect on the
Company. In addition, there can be no assurance that the Company will have the
financial resources necessary to enforce or defend its trademarks.
9. Dependence upon Key Personnel. The success of the Company is largely
dependent upon the efforts of Neil Cole, its President, Chief Executive Officer
and Chairman. Although the Company has entered into an employment agreement with
Mr. Cole, expiring on February 23, 1997, which requires him to commit a majority
of his business time to the affairs of the Company, the loss of his services
would have a material adverse effect on the Company's business and prospects.
The Company has purchased "key man" life insurance on the life of Mr. Cole in
the amount of $2,000,000. The success of the Company is also dependent upon its
ability to hire and retain additional qualified sales and marketing personnel in
connection with the Company's design, marketing and distribution of its
products. There can be no assurance that the Company will be able to hire or
retain such necessary personnel.
10. No Dividends. The Company has not paid any cash dividends on its Common
Stock to date, and does not expect to declare or pay any dividends in the
foreseeable future.
11. 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 shareholder approval, to issue additional
shares of preferred stock with dividend, liquidation, conversion, voting or
other rights which could adversely affect the voting power or other rights of
the holders
-12-
<PAGE>
of the Company's Common Stock. In the event of issuance, the preferred stock
could be utilized, under certain circumstances, as a method of discouraging,
delaying or preventing a change in control of the Company, which could have the
effect of discouraging bids for the Company and thereby, prevent shareholders
from receiving the maximum value for their shares. There can be no assurance
that additional preferred stock of the Company will not be issued at some time
in the future.
12. Possible Delisting of Securities from NASDAQ System; Risk of Low-Priced
Stocks. The Company's Common Stock is currently listed on the NASDAQ National
Market System. It is necessary for continuing inclusion of its Common Stock on
the NASDAQ National Market System that the Company will continue to meet
NASDAQ's maintenance requirements. In the event that the Common Stock is no
longer eligible for listing on the NASDAQ National Market System but is eligible
for listing on the NASDAQ Small-Cap Market, the Common Stock would be subject to
the maintenance requirements associated with listing on the NASDAQ Small-Cap
Market. In order to continue to be included on the NASDAQ National Market
System, a company must have 200,000 shares publicly held, a market value of the
publicly held shares of at least $1,000,000, net tangible assets of at least
$1,000,000 ($2,000,000 if the Company has sustained losses from continuing
operations and/or net losses in two of its three most recent fiscal years and
$4,000,000 if it has sustained losses in three of its four most recent fiscal
years), have 400 shareholders or 300 shareholders of round lots and a minimum
bid price of $1.00 per share.
In order to continue to be included on the NASDAQ Small-Cap Market, a
company must maintain $2,000,000 in total assets, a $200,000 market value of the
public float and $1,000,000 in total capital and surplus. In addition, continued
inclusion requires two market makers and a minimum bid price of $1.00 per share;
provided, however, that if a company falls below such minimum bid price, it will
remain eligible for continued inclusion in NASDAQ if the market value of the
public float is at least $1,000,000 and the Company has $2,000,000 in capital
and surplus. Failure to meet these maintenance criteria in the future could
result in the delisting of the Company's securities from NASDAQ and trading, if
any, in the Company's securities would thereafter 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
Company's securities. In addition, if the Common Stock were delisted from
trading on NASDAQ and the trading price of the Common Stock was less than $5.00
per share, trading in the Common Stock would also be subject to 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
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<PAGE>
$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 stock 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 transactions prior to sale. The additional
burdens imposed upon broker-dealers by such requirements may discourage
broker-dealers from effecting transactions in the Common Stock, which could
severely limit the market liquidity of the Common Stock and the ability of
purchasers in this offering to sell the Conversion Shares in the secondary
market. Moreover, the Common Stock could be delisted from the NASDAQ National
Market System and not be included in the NASDAQ Small-Cap Market, immediately
subjecting the Common Stock to the risks of the non-NASDAQ over-the-counter
market and penny stock rules described above.
13. Possible Volatility of Stock Market and Stock Price; Shares Eligible
for Future Sale. In recent years, the stock market has experienced extreme price
and volume fluctuations and market prices for securities of many companies have
experienced wide fluctuation, not necessarily related to the operating
performance of such companies. There can be no assurance that the market price
of the Company's Common Stock will not be volatile. Furthermore, there are a
significant number of shares of Common Stock which are currently eligible for
sale under Rule 144 of the Securities Act of 1933, 3,629,378 shares of Common
Stock beneficially owned by the Selling Stockholders, which shares are being
offered for sale pursuant to this Prospectus and up to 2,950,000 shares issuable
upon exercise of the Public Warrants. No prediction can be made as to the
effect, if any, that sales of shares of Common Stock or the availability of such
shares for sale will have on the market prices prevailing from time to time.
Nevertheless, the possibility that substantial amounts of Common Stock may be
sold in the public market may adversely affect prevailing market prices for the
Common Stock and could impair the Company's ability to raise capital through the
sale of its equity securities.
-14-
<PAGE>
RECENT DEVELOPMENTS
The Company and New Retail Concept, Inc. ("NRC") have entered into a
settlement agreement with the plaintiff, a former officer of NRC whose
employment by NRC was terminated in October 1994, with respect to an action
commenced in October 1994 by the plaintiff against NRC and the Company in the
United States District Court for the Southern District of New York. The
plaintiff had alleged that, pursuant to the Company's Services Allocation
Agreement with NRC, the Company undertook to perform NRC's obligations under its
employment agreement with the plaintiff. Under the settlement agreement, the
Company and NRC are jointly and severally obligated to pay the plaintiff an
aggregate of $226,000 in 36 bi-weekly payments of $6,277.78, which commenced on
July 1, 1995, and the Company is also required to provide certain health benefit
coverage for the plaintiff and his wife through December 31, 1996.
In July 1995, Congress Talcott Corp. ("Congress"), a factor, informed the
Company it was increasing, until March 31, 1996, the credit limits under the
Company's accounts receivable factoring agreement with Congress from $7.5 to $10
million for borrowings secured by accounts receivable and for documentary
letters of credit procured by Congress for the Company's account (the sub-limit
for letters of credit is $2.5 million) and from $5 to $6 million for borrowings
secured by finished good inventory.
The Company has been advised by the Staff of the Securities and Exchange
Commission (the "Commission") that the Commission has authorized the Staff to
commence an administrative proceeding against the Company with respect to
alleged violations of Section 5 of the Securities Act of 1933 in connection with
the Company's 1993 Regulation S offering (the "Offering") of shares of Common
Stock in the aggregate amount of $2,000,000. Although there can be no assurance,
the Company believes that the outcome of any proceeding which the Commission may
bring against it in connection with the Offering will not have a material
adverse effect on the Company or its financial condition.
In June 1995, the Company and certain trade creditors (the "Creditors")
entered into a memorandum of intent (the "Memorandum"), pending the execution of
definitive agreements, whereby the Company indicated its intent to pay existing
indebtedness to the Creditors and to secure the payment of existing and future
indebtedness of the Company to the Creditors by a security interest in all of
its assets subordinate to the security interest in such assets in favor of
Congress. The Memorandum states that the Creditors intend to continue to extend
purchase money credit to the Company, provided that the Company makes payment
for goods shipped within 30 days of the date of shipment. The definitive
agreements will be subject to approval by the boards of directors of the Company
and the Creditors and
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<PAGE>
the consents of Congress to the creation of the security interest in favor of
the Creditors and the relative priority thereof in relation to the security
interests of Congress in such assets. There can be no assurance that definitive
agreements will be authorized and executed by the Company and the Creditors or
that Congress will give the required consent. Although at this time no
definitive agreement has been negotiated the Creditors have continued to extend
purchase money credit to the Company and the Company does not believe that its
business will be adversely affected even if a definitive agreement is never
executed.
The Company recently announced that for its fiscal quarter ended October
31, 1995 it achieved net income of $705,642 ($.07 per share) on revenues of
$10,602,194. There were 14,452,746 weighted average common and common equivalent
shares outstanding during the fiscal quarter.
In December 1995 the United States District Court for the Southern District
of New York approved the settlement of an action instituted in July 1992 against
the Company and its former directors by the Food and Allied Service Trades
Department, AFL- CIO, and on behalf of the class of all other similarly situated
stockholders. The settlement requires the Company to make a $100,000 cash
payment to the plaintiffs and to issue to the plaintiffs that number of shares
of its Common stock (up to a maximum of 600,000 shares) which would allow the
plaintiffs to realize an additional $550,000 upon their sale over a two-year
period. If the plaintiffs do not realize $550,000 from the sale of such shares,
the Company will be required to pay to the plaintiffs the amount of the
shortfall.
USE OF PROCEEDS
The Company will pay all of the costs associated with this offering. The
Company will not receive any proceeds from the sale of Common Stock offered by
the Selling Stockholders.
The Company will receive gross proceeds of approximately $18,700,000 if all
of the Derivative Securities are exercised, of which there can be no assurance.
The Company intends to use the proceeds, if any, from exercises, if any, of the
Derivative Securities for working capital and general corporate purposes.
SELLING STOCKHOLDERS
The following table sets forth information concerning the beneficial
ownership of Common Stock by the Selling Stockholders as of the date of this
Prospectus and the number of shares included for sale in this Prospectus. Such
information was furnished to the Company by the Selling Stockholders.
-16-
<PAGE>
<TABLE>
<CAPTION>
Shares Owned Shares to be Shares to be Percentage
Prior to the Sold in the Owned After Owned After
Name Offering Offering the Offering The Offering
---- -------- -------- ------------ ------------
<S> <C> <C> <C>
Anil and Sudha Agarwal 89,543 86,956 2,587 *
Vijay Agarwal 21,739 21,739 0 0
Eliana Alos 1,500 1,500(1) 0 0
Seena Amsel 1,500 1,500(1) 0 0
Nicolas Anari 7,564 7,564 0 0
Terry Anderson 5,000 5,000(1) 0 0
Mendel Balk 17,000 17,000(1) 0 0
Nicholas J. Brown 92,129 86,956 5,173 *
Cynthia Buckwalter 1,103 1,103 0 0
Michael Callahan 113,889 113,889(1) 0 0
Chapul Limited 32,609 32,609 0 0
Tony Chiarello 2,500 2,500(1) 0 0
Michelle Colabatistto 1,500 1,500(1) 0 0
John Daniel 24,783 24,783 0 0
Eugene Duffy 7,500 7,500(1) 0 0
Barry Emanuel 25,000 25,000(1) 0 0
Equity Securities,
Inc. 4,752 4,752 0 0
Estate of Howard Harlow 37,123 37,123 0 0
Fieldcrest Cannon, Inc. 200,000 200,000 0 0
Ernesto Figueroa 2,500 2,500(1) 0 0
Troy Ford 2,500 2,500(1) 0 0
Greg Goff 45,000 45,000(1) 0 0
Richard Gothelf 100,000 100,000(1) 0 0
Gary L. Griffis 24,326 21,739 2,587 *
C. John Guenzel 21,739 21,739 0 0
Peter Hauser 11,088 11,088 0 0
Invest L'Inc. 33,386 33,386 0 0
Investplus, Inc. 21,739 21,739 0 0
Mary Jochim 48,651 43,478 5,173 *
Morton J. Kaplan Trust,
Morton J. Kaplan, Trustee 48,651 43,478 5,173 *
Michael J. Keady 24,326 21,739 2,587 *
Kerry Kesar 1,500 1,500(1) 0 0
Willis G. Kettelhut and
Marilyn Kettelhut, Ten Com 24,326 21,739 2,587 *
Kirkpatrick, Pettis, Smith,
Polian Inc., Cust.
Rod Cerny IRA 21,739 21,739 0 0
Kirkpatrick, Pettis, Smith,
Polian Inc. Cust. for
Karen C. Chubick IRA 2,000 2,000 0 0
Kirpet Co.(2) 143,993 143,993 0 0
Gary Klein 48,000 17,000(1) 31,000 *
Alan Lichtenstein 2,500 2,500(1) 0 0
Linden Group Profit Sharing Plan 37,037 37,037 0 0
Stephen and Laura Lococo 17,564 17,564 0 0
Sally O. Lundell 24,326 21,739 2,587 *
Man & Co. FBO Peter Hauser, IRA 88,000 88,000 0 0
</TABLE>
-17-
<PAGE>
<TABLE>
<CAPTION>
Shares Owned Shares to be Shares to be Percentage
Prior to the Sold in the Owned After Owned After
Name Offering Offering the Offering The Offering
---- -------- -------- ------------ ------------
<S> <C> <C> <C>
Man & Co. FBO John Steinbergs, IRA 49,235 44,000 5,235 *
Steven and Donna Manstedt 21,739 21,739 0 0
JTWROS
Angel Martinez 1,000 1,000(1) 0 0
Kathy Mathan 1,000 1,000(1) 0 0
Lynn Miller 300,000 300,000(1) 0 0
One World Capital
Partners Limited 100,000 100,000 0 0
Lawrence O'Shaughnessy 345,000 311,700(1) 33,300 *
Tami Otis 1,000 1,000(1) 0 0
Ronald Owens 45,000 45,000(1) 0 0
Ronald Parsons 17,500 17,500(1) 0 0
Chanel Penelton 1,500 1,500(1) 0 0
Piper Trust Co., Trustee, PHSK
Money Purchase Pension &
401K Profit Sharing Plans
and Trust Roger Schronbrich
Self Directed Account 27,173 22,000 5,173 *
Madeline Quail 1,500 1,500(1) 0 0
Research Works, Inc. 75,000 75,000 0 0
Raymond D. Rossini 24,618 22,000 2,618 *
Saintday International Co. Ltd. 460,000 50,000 410,000 4.7%(3)
Ronald Schardt 24,326 21,739 2,587 *
Steven Schwab 7,500 7,500(1) 0 0
Harley and Marion Shoemaker 21,739 21,739 0 0
Robert Sloop 34,000 34,000(1) 0 0
Elliot J. Smith 93,041 93,041 0 0
Starter Corporation 100,000 100,000 0 0
Sterling Trust, Trustee for
Delmar R. Joyce IRA 48,651 43,478 5,173 *
John A. Sturgeon 24,326 21,739 2,587 *
Tenzer Greenblatt LLP 55,000 55,000 0 0
E.M. Thompson Revocable
Trust, E.M. Thompson, Trustee 21,739 21,739 0 0
Doy Unzicker and
Sheila Unzicker, JTWROS 24,326 21,739 2,587 *
Arthur Wagner 11,500 11,500(1) 0 0
Larry Wagner 65,000 65,000(1) 0 0
William G. Walters 93,041 93,041 0 0
John W. Weekly 24,326 21,739 2,587 *
Adam Weith 1,000 1,000(1) 0 0
Wayne Weyrauch 88,000 88,000 0 0
Whale Securities Co., L.P. 418,021 418,021(4) 0 0
Michael White 45,000 45,000(1) 0 0
James Whitten 3,753 3,753 0 0
Irving Zambrano 2,000 2,000(1) 0 0
Alfredo Zelaya 1,500 1,500(1) 0 0
</TABLE>
- --------------------
-18-
<PAGE>
* Less than one percent.
(1) The holder is an employee of the Company and the shares of Common Stock
being offered hereunder by such holder are issuable upon exercise of
non-Plan options granted to such holder by the Company, except in the case
of Lawrence O'Shaughnessy, Executive Vice President and Chief Operating
Officer of the Company. The total number of shares being offered by Mr.
O'Shaughnessy includes 60,000 shares originally issued to a supplier of the
Company, of which Mr. O'Shaughnessy is the sole stockholder.
(2) Kirpet Co. is the street name for Kirkpatrick, Pettis, Smith, Polian Inc.
("KPSP").
(3) Assumes the exercise of all options and warrants held by the individual
Selling Stockholder but no other options or warrants.
(4) Does not include shares held in the trading account of Whale Securities
Co., L.P. ("Whale"). All of the warrants to purchase such shares are held
in Whale's name for the account of its equity owners and/or certain of its
employees. Whale was the underwriter of the Company's initial public
offering and its secondary public offering completed in March 1993 and in
consideration therefor was paid certain underwriting commissions and a
nonaccountable expense allowance and was issued the Underwriter's Warrants
(defined below).
Of the shares of Common Stock offered for sale by the Selling Stockholders,
(1) 37,037 shares were issued to an investor pursuant to a private offering by
the Company consummated in May 1994; (2) 894,431 shares of Common Stock were
issued to investors in November 1994 upon the conversion of shares of Series A
Convertible Preferred Stock of the Company acquired by such investors pursuant
to a private offering by the Company consummated in October 1994; (3) 55,000
shares were issued in payment of certain legal services rendered to the Company
in 1994; (4) 337,566 shares are issuable upon the exercise of warrants which
were issued to KPSP and its designees in connection with the KPSP acting as
placement agent for private offerings of securities by the Company that were
consummated in October 1994 and 32,609 shares have been issued upon exercise of
such warrants; (5) 653,646 shares are issuable upon the exercise of warrants
(the "Underwriter's Warrants") issued to Whale and its designees in connection
with Whale acting as underwriter of the Company's 1993 secondary public offering
of securities and the warrants underlying such warrants; (6) 1,134,089 shares
are issuable upon exercise of non-Plan options granted to employees, officers, a
director and a former officer of the Company as incentives for continuing
employment or for providing other
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<PAGE>
services to the Company, and in the case of the Company's President, as
consideration for guaranties of indebtedness of the Company issued by him; (7)
410,000 shares were issued in connection with the settlement of certain claims
and litigation asserted against the Company and (8) warrants to purchase 75,000
shares which were issued to a consultant to the Company. The exercise price of
warrants and options referred to above range from $1.00 to $5.00 per share and
have expiration dates ranging from February 3, 1998 to December 31, 1999.
Except as set forth below and in the footnotes to the above table, none of
the Selling Stockholders has held any offices or maintained any material
relationships with the Company or any of its predecessors during the past three
years, other than providing services to the Company in the ordinary course of
the Company's business. Lawrence O'Shaughnessy is Chief Operating Officer,
Executive Vice President and a director of the Company. Gary Klein is Vice
President of Finance of the Company. Barry Emanuel is a director of the Company.
Whale was the Company's underwriter for the Company's 1989 and 1993 public
offerings of securities. William G. Walters, Nicholas Anari, Cynthia Buckwalter
and James Whitten are, and Messrs. Smith and Harlow were, officers or employees
of Whale. Tenzer Greenblatt LLP has acted as counsel to the Company with respect
to certain matters. KPSP acted as placement agent with respect to certain sales
of the Company's securities during 1994.
Each Class B Warrant entitles the registered holder thereof to purchase one
share of Common Stock at a price, initially, of $4.00, and each Class C Warrant
entitles the registered holder thereof to purchase one share of Common Stock at
a price, initially, of $5.00, in each case until February 23, 1998. The Public
Warrants are redeemable by the Company, with the consent of Whale upon 30 days'
notice, at a price of $.25 per Public Warrant, provided that the closing sale
price of the Common Stock on all of the 20 trading days ending on the third day
prior to the day on which the Company gives notice has been at least 125%
(currently $5.00, subject to adjustment, for the Class B Warrants and $6.25,
subject to adjustment, of the Class C Warrants) of the then effective exercise
price of the Warrants called for redemption. The holders of Public Warrants
called for redemption have exercise rights until the close of business on the
date fixed for redemption. The Company has agreed, in connection with the
exercise of Public Warrants pursuant to solicitation, to pay to Whale a fee of
five percent (5%) of the exercise price for each Public Warrant exercised,
provided however, that Whale will not be entitled to receive such compensation
in Public Warrant exercise transactions in which (i) the market price of Common
Stock at the time of the exercise is lower than the exercise price of the Public
Warrant; (ii) the Public Warrants are held in any discretionary account; (iii)
disclosure of compensation arrangements is not made in documents provided to
holders of Public Warrants at the time of exercise;
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<PAGE>
(iv) the exercise of the Public Warrants is unsolicited; or (v) the transaction
was in violation of Rule 10b-6 promulgated under the Exchange Act.
The Public Warrants were issued pursuant to a Warrant Agreement between the
Company and Continental Stock Transfer & Trust company, as Warrant Agent.
Reference is made to said Warrant Agreement for a complete description of the
terms and conditions therein the description herein contained being qualified in
its entirety by reference thereto).
The exercise price and number of shares of Common Stock or other securities
issuable on exercise of the Public Warrants are subject to adjustment in certain
circumstances, including in the event of a stock dividend, recapitalization,
reorganization, merger or consolidation of the Company. However, no Public
Warrant is subject to adjustment for issuance of Common Stock at a price below
the exercise price of that Public Warrant, including the issuance of shares of
Common Stock pursuant to the Company's stock option plan.
The Public Warrants may be exercised upon surrender of the relevant Public
Warrant certificate on or prior to the expiration date at the offices of the
Warrant Agent, with the exercise form on the reverse side of the certificate
completed and executed as indicated, accompanied by full payment of the exercise
price (by certified check payable to the Company) to the Warrant Agent for the
number of Public Warrants being exercised. The holders of Public Warrants do not
have the rights or privileges of holders of Common Stock.
PLAN OF DISTRIBUTION
The Common Stock may be offered and sold from time to time by the Selling
Stockholders as market conditions permit in the over-the-counter market, or
otherwise, at prices and terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. The shares offered
hereby may be sold by one or more of the following methods, without limitation:
(a) a block trade in which a broker or dealer so engaged will attempt to sell
the shares 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 account pursuant to this
Prospectus; (c) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and (d) face-to-face transactions between sellers
and purchasers without a broker-dealer. In effecting sales, brokers or dealers
engaged by the Selling Stockholder may arrange for other brokers or dealers to
participate. Such brokers or dealers may receive commissions or discounts from
the Selling Stockholders in amounts to be negotiated immediately prior to the
sale. Such brokers and
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<PAGE>
dealers and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, in connection
with such sales.
Upon being notified by a Selling Stockholder that any material arrangement
has been entered into with a broker-dealer for the purchase by a broker or
dealer of shares of Common Stock being offered hereby by the Selling
Stockholder, the Company will file a supplemental prospectus under the
Securities Act of 1933, disclosing (i) the name of such Selling Stockholder and
of the participating broker-dealer(s); (ii) the number of shares involved; (iii)
the price at which such shares were sold; and (iv) the commissions paid or
discounts or concessions allowed to such broker-dealer(s), where applicable.
INDEMNIFICATION
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its shareholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides that no such limitation of liability may affect
a director's liability with respect to any of the following: (i) breaches of the
director's duty of loyalty to the corporation or its shareholders; (ii) acts or
omissions not made in good faith or which involve intentional misconduct of
knowing violations of law; (iii) liability for dividends paid or stock
repurchased or redeemed in violation of the Delaware General Corporation law; or
(iv) any transaction from which the director derived an improper personal
benefit. Section 102(b)(7) does not authorize any limitation on the ability of
the corporation or its shareholders to obtain injunction relief, specific
performance or other equitable relief against directors.
Article Nine of the Company's Certificate of Incorporation and the
Company's By-laws provide that all persons who the Company is empowered to
indemnify pursuant to the provisions of Section 145 of the General Corporation
Law of the Stat of Delaware (or any similar provision or provisions of
applicable law at the time in effect), shall be indemnified by the Company to
the full extent permitted thereby. The forgoing right of indemnification shall
not be deemed to be exclusive of
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<PAGE>
any other rights to which those seeking indemnification may be entitled under
any by-law, agreement, vote of shareholders or disinterested directors, or
otherwise.
Article Ten of the Company's Certificate of Incorporation provides that no
director of the Company shall be personally liable to the Company or its
shareholders for any monetary damages for breaches of fiduciary duty of loyalty
to the Company or its shareholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the General Corporation Law of the State of Delaware; or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Company's employment agreement with Neil Cole provide that the Company
shall indemnify him and hold him harmless for the consequences of all acts and
decisions made by him in good faith while performing services for the Company.
This agreement also require the Company to use its best efforts to obtain
directors' and officers' liability insurance.
Insofar as indemnification for liabilities arising under 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 such indemnification is
against public policy as expressed in the act and is, therefore, unenforceable.
LEGAL MATTERS
The legality of the Common Stock offered hereby will be passed upon for the
Company by Tenzer Greenblatt LLP, New York, New York, which has acted as special
securities counsel for the Company. Such firm is the beneficial owner of 55,000
shares of Common Stock. Tenzer Greenblatt LLP acts as counsel for the Company in
connection with certain legal matters unrelated to this offering.
EXPERTS
The consolidated financial statements incorporated by reference in the
Company's Annual Report (Form 10-KSB) for the fiscal year ended January 31,
1995, have been audited by Ernst & Young LLP independent auditors, as set forth
in their report thereon (which contains an explanatory paragraph with respect to
the Company's ability to continue as a going concern mentioned in Note 2 to the
consolidated financial statements) incorporated
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<PAGE>
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement under the Securities Act with respect to
the securities offered by this Prospectus. This prospectus does not contain all
of the information set forth in the Registration Statement and the exhibits and
schedules thereto, certain portions of the Registration Statement having been
omitted pursuant to the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement. Statements
contained in this Prospectus as to the contents of any contract or other
document are not necessarily complete, and in each instance reference is made to
the copy of such contract filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference. Copies of
the Registration Statement may be inspected without charge at the principal
office of the Commission in Washington, D.C., and copies of all or any part
thereof may be obtained from the Commission at prescribed rates.
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<PAGE>
================================================================================
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus, and if given or made, such information or representations must not
be relied upon as having been authorized by the Company, any Underwriter or any
Selling Stockholder. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy and security other than the Securities offered
by this Prospectus, or an offer to sell or a solicitation of an offer to buy any
security by any person in any jurisdiction in which such offer or solicitation
would be unlawful. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, imply that the information in this
Prospectus is correct as of any time subsequent to the date of this Prospectus.
-----------------
TABLE OF CONTENTS
Page
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Available Information......................................
Information Incorporated by Reference......................
Prospectus Summary.........................................
Risk Factors...............................................
Use of Proceeds............................................
Selling Stockholders.......................................
Plan of Distribution.......................................
Indemnification............................................
Legal Matters..............................................
Experts....................................................
Additional Information.....................................
================================================================================
================================================================================
----------------------------
6,579,378 Shares of
Common Stock
----------------------
CANDIE'S, INC.
-------------------------
PROSPECTUS
-------------------------
__________, 1996
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth various estimated expenses in connection
with the sale and distribution of the securities being registered, all of which
will be paid for by the Company.
SEC registration fee................... $4,012.20
Printing and engraving expenses........ 4,000.00
Legal fees and expenses................ *
Accounting fees and expenses........... *
Blue Sky fees and expenses............. *
Miscellaneous.......................... *
--------
TOTAL........................... $ *
========
- ------------------------
* to be provided by amendment.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its shareholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides that no such limitation of liability may affect
a director's liability with respect to any of the following: (i) breaches of the
director's duty of loyalty to the corporation or its shareholders; (ii) acts or
omissions not made in good faith or which involve intentional misconduct of
knowing violations of law; (iii) liability for dividends paid or stock
repurchased or redeemed in violation of the Delaware General Corporation law; or
(iv) any transaction from which the director derived an improper personal
benefit. Section 102(b)(7) does not authorize any limitation on the ability of
the corporation or its
II-1
<PAGE>
shareholders to obtain injunction relief, specific performance or other
equitable relief against directors.
Article Nine of the Company's Certificate of Incorporation and the
Company's By-laws provide that all persons who the Company is empowered to
indemnify pursuant to the provisions of Section 145 of the General Corporation
Law of the Stat of Delaware (or any similar provision or provisions of
applicable law at the time in effect), shall be indemnified by the Company to
the full extent permitted thereby. The forgoing right of indemnification shall
not be deemed to be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors, or otherwise.
Article Ten of the Company's Certificate of Incorporation provides that no
director of the Company shall be personally liable to the Company or its
shareholders for any monetary damages for breaches of fiduciary duty of loyalty
to the Company or its shareholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the General Corporation Law of the State of Delaware; or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Company's employment agreement with Neil Cole provide that the Company
shall indemnify him and hold him harmless for the consequences of all acts and
decisions made by him in good faith while performing services for the Company.
This agreement also require the Company to use its best efforts to obtain
directors' and officers' liability insurance.
(a) Exhibits.
Exhibit Number
- --------------
5 Opinion of Tenzer Greenblatt LLP.*
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Tenzer Greenblatt LLP (included in
Exhibit 5).*
- -----------
*To be filed by amendment
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<PAGE>
Item 17. Undertakings.
A. Rule 415 Undertakings.
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any additional or changed information with respect to
the plan of distribution.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required in a post-effective amendment by those paragraphs is incorporated by
reference from periodic reports filed by the registrant under the Securities
Exchange Act of 1934.
(2) That, for the purpose of determining liability under the Securities Act
of 1933, that each post-effective amendment shall be deemed as a new
Registration Statement of the securities offered, and the offering of the
securities at that time shall be deemed to be the initial bona fide offering.
(3) To remove from registration by filing a post-effective amendment to any
of the securities being registered which remain unsold at the end of the
offering.
B. Indemnification Undertakings.
Reference is made to the items of (i) the Delaware General Corporation Law,
(ii) the Company's Certificate of Incorporation, (iii) the Company's By-Laws and
(iv) the employment agreement of Mr. Neil Cole (described in Item 15 hereof),
which provide for certain rights of indemnification for officers and directors
of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been
II-3
<PAGE>
advised that in the opinion of the Securities and Exchange 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
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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<PAGE>
Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Purchase, State of New York on January
2, 1996.
CANDIE'S, INC.
By: /s/ Neil Cole
-------------------------------
Neil Cole, President and
Chief Executive Officer
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Neil Cole and Lawrence O'Shaughnessy or either
of them his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and his name, place and stead, in any
and all capacities (until revoked in writing) to sign any and all amendments
(including post-effective amendments and amendments thereto) to this
Registration Statement of Candie's, Inc. and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone or his substitute, may lawfully
do or cause to be done by virtue hereof.
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/ Neil Cole President, January 2, 1996
- -------------------------- Chief Executive
Neil Cole Officer and Director
(Principal
Executive Officer)
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<PAGE>
/s/ Lawrence O'Shaughnessy Chief Operating January 2, 1996
- -------------------------- Officer and
Lawrence O'Shaughnessy Director
- -------------------------- Director , 1996
Barry Emanuel
/s/ Gary Klein Vice President- January 2, 1996
- --------------------- Finance (Principal
Gary Klein Accounting and Financial
Officer)
\
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
5 Opinion of Tenzer Greenblatt LLP*
23.1 Consent of Ernst & Young LLP
23.2 Consent of Tenzer Greenblatt LLP*
(included in Exhibit 5)
* To be filed by amendment
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 33-62697) and the related Prospectus of
Candies' Inc. for the registration of 6,579,38 shares of its common stock and to
the incorporation by reference therein of our report dated April 26, 1995 with
respect to the consolidated financial statements of Candies' Inc. included in
its annual report (Form 10-KSB) for the year ended January 31, 1995, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
ERNST & YOUNG LLP
New York, New York
January 2, 1996
