Unassociated Document
As
filed with the Securities and Exchange Commission on November 25,
2009
Registration
No. 333-___________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
________________
FREDERICK’S
OF HOLLYWOOD GROUP INC.
(Exact
name of registrant as specified in its charter)
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New
York
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13-5651322
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|
(State
or Other Jurisdiction of Incorporation or
Organization)
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(I.R.S.
Employer Identification Number)
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1115
Broadway
New
York, New York 10010
(212)
798-4700
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's
Principal Executive Office)
Thomas
J. Lynch
Chairman
of the Board and Chief Executive Officer
Frederick’s
of Hollywood Group Inc.
1115
Broadway
New
York, New York 10010
(212)
798-4700
(Name,
Address, Including Zip Code, and Telephone Number, Including Area
Code,
of Agent for Service)
Copies to:
David
Alan Miller, Esq.
Jeffrey
M . Gallant, Esq.
Graubard
Miller
405
Lexington Avenue, 19th
Floor
New
York, New York 10174
Telephone:
(212) 818-8800
Fax:
(212) 818-8881
Approximate
date of commencement of proposed sale to the public: From time to time 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, other than securities offered only in
connection with dividend or interest reinvestment plans, please check the
following box. ¨
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the
following box. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
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Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
(Do
not check if a smaller reporting company)
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Smaller
reporting company x
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Title of each class of securities to be
registered
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Amount to be
Registered (1)
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Proposed
Maximum
Offering Price
Per Security (2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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Common
Stock, par value $0.01 per share
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20,649,071 |
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$ |
1.22 |
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$ |
25,191,866.62 |
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$ |
1,405.71 |
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Total
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$ |
1,405.71 |
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(1)
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In
the event of a stock split, reverse stock split, stock dividend or similar
transaction involving our common stock, the number of shares registered
shall automatically be adjusted to cover the additional shares of common
stock issuable pursuant to Rule 416 under the Securities Act of 1933, as
amended.
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(2)
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Estimated
solely for purposes of calculating the registration fee in accordance with
Rule 457(c) under the Securities Act of 1933, using the average of the
high and low prices as reported on the NYSE Amex on November 23, 2009,
which was $1.22 per share.
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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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Prospectus
Frederick’s
of Hollywood Group Inc.
20,649,071
Shares of Common Stock
This
prospectus relates to the resale of up to 20,649,071 shares of our common stock
by the selling shareholders set forth in this prospectus under the heading
“Selling Shareholders” beginning on page 7 of this prospectus.
We will
not receive any proceeds from the sale of our shares by the selling
shareholders; however, we will receive payment in cash upon exercise of warrants
held by such selling shareholders.
The
securities are being registered to permit the selling shareholders to sell the
securities from time to time in the public market. The selling shareholders may
sell the securities through ordinary brokerage transactions or through any other
means described under the heading “Plan of Distribution” beginning on page
8. We do not know when or in what amount the selling shareholders may
offer the securities for sale. The selling shareholders may sell any, all or
none of the securities offered by this prospectus.
Our
common stock is traded on the NYSE Amex under the symbol “FOH.” The last
reported sale price of our common stock on the NYSE Amex on November 23, 2009
was $1.19 per share.
Investing in our common stock involves
a high degree of risk. See the section entitled “Risk Factors”
beginning on page 2.
We
may amend or supplement this prospectus from time to time by filing amendments
or supplements as required. You should read the entire prospectus and any
amendments or supplements carefully before you make your investment
decision.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is _______ ___, 2009.
FREDERICK’S
OF HOLLYWOOD GROUP INC.
TABLE
OF CONTENTS
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PROSPECTUS SUMMARY
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1
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RISK FACTORS
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2
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FORWARD-LOOKING STATEMENTS
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6
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USE OF PROCEEDS
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6
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SELLING SHAREHOLDERS
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7
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PLAN OF DISTRIBUTION
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8
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LEGAL MATTERS
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9
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INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRMS
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9
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WHERE YOU CAN FIND MORE
INFORMATION
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10
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______________________
You may
only rely on the information contained in this prospectus or that we have
referred you to. We have not authorized anyone to provide you with different
information. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the common stock
offered by this prospectus. This prospectus does not constitute an offer to sell
or a solicitation of an offer to buy any common stock in any circumstances in
which such offer or solicitation is unlawful. Neither the delivery of this
prospectus nor any sale made in connection with this prospectus shall, under any
circumstances, create any implication that there has been no change in our
affairs since the date of this prospectus or that the information contained by
reference to this prospectus is correct as of any time after its date. In this
prospectus, references to “Frederick’s of Hollywood Group Inc.,” “the Company,”
“we,” “us,” and “our,” refer to Frederick’s of Hollywood Group Inc., a New York
corporation, and its subsidiaries.
Overview
Frederick’s
of Hollywood Group Inc. is a New York corporation incorporated on April 10,
1935. On January 28, 2008, we consummated a merger with FOH Holdings, Inc., a
privately-held Delaware corporation (“FOH Holdings”). As a result of the
transaction, FOH Holdings became our wholly-owned subsidiary. FOH Holdings is
the parent company of Frederick’s of Hollywood, Inc. Upon consummation of the
merger, we changed our name from Movie Star, Inc. to Frederick’s of Hollywood
Group Inc.
As a
merged company, we conduct our business through two operating divisions that
represent two distinct business reporting segments: the multi-channel
retail division and the wholesale division. We believe this method of
segment reporting reflects both the way our business segments are managed and
the way each segment’s performance is evaluated. The retail segment
includes our retail stores, catalog and website operations. The
wholesale segment includes our wholesale operations in the United States and
Canada.
Through
our multi-channel retail division, we sell women’s intimate apparel and related
products under our proprietary Frederick’s of Hollywood® brand
exclusively through our predominantly mall-based specialty retail stores in the
United States, which we refer to as “Stores,” and through our catalog and
website at www.fredericks.com, which we refer to collectively as
“Direct.” As of July 25, 2009, we operated 130 Frederick’s of
Hollywood stores nationwide and during fiscal year 2009 mailed approximately
17.6 million catalogs. For the fiscal year ended July 25, 2009, our
retail division generated approximately $142 million, or 80%, of our net sales,
comprised of approximately $90 million of net sales from Stores and $52 million
from Direct.
Through
our wholesale division, we design, manufacture, source, distribute and sell
women’s intimate apparel to mass merchandisers, specialty and department stores,
discount retailers, national and regional chains, and direct mail catalog
marketers throughout the United States and Canada. For the fiscal
year ended July 25, 2009, our wholesale division generated approximately $34.5
million of net sales, which represented approximately 20% of our net sales for
fiscal year 2009.
Registration
Rights Agreement
In
connection with the consummation of our merger with FOH Holdings, we entered
into a registration rights agreement with Fursa Alternative Strategies LLC
(“Fursa”) (on its behalf and on behalf of certain accounts it manages), Tokarz
Investments, LLC (“Tokarz Investments”) and TTG Apparel LLC (“TTG Apparel”).
Pursuant to this agreement, we agreed to register for resale the shares of our
common stock held by these entities in certain situations. This
prospectus relates to the resale by such entities of their shares of our common
stock.
Corporate
Information
Our
principal executive offices are located at 1115 Broadway, New York, New York
10010 and our telephone number is (212) 798-4700. Our retail division corporate
office is located at 6255 Sunset Boulevard, Los Angeles, California 90028 and
its telephone number is (323) 466-5151. Our retail website is www.fredericks.com
and our corporate website is www.fohgroup.com. We
do not intend for information contained in our websites to be a part of this
prospectus.
You
should carefully consider the risks described below as well as other information
provided to you in this document, including information in the section of this
document entitled “Forward Looking Statements.” The risks and uncertainties
described below are not the only ones facing us. Additional risks and
uncertainties not presently known to us or that we currently believe are
immaterial may also impair our business operations. If any of the following
risks actually occur, our business, financial condition or results of operations
could be materially adversely affected, the value of our common stock could
decline, and you may lose all or part of your investment.
Risks
Relating to Our Business
General
economic conditions, including continued weakening of the economy, may affect
consumer purchases of discretionary items, which could adversely affect our
sales.
The intimate apparel industry
historically has been subject to cyclical variations, recessions in the general
economy and future economic outlook. Throughout fiscal year 2009,
there was significant deterioration in the global financial markets and economic
environment, which we believe negatively impacted consumer spending at many
retailers, including us. Our results are dependent on a number of
factors impacting consumer spending, including general economic and business
conditions; consumer confidence; wages and employment levels; the housing
market; consumer debt levels; availability of consumer credit; credit and
interest rates; fuel and energy costs; energy shortages; taxes; general
political conditions, both domestic and abroad; and the level of customer
traffic within department stores, malls and other shopping and selling
environments. Consumer purchases of discretionary items, including
our products, may decline during recessionary periods and at other times when
disposable income is lower. A continued or incremental downturn in the U.S.
economy, an uncertain economic outlook or an expanded credit crisis could
continue to adversely affect our business and our revenues and
profits.
If
we cannot compete effectively in the retail and wholesale apparel industries,
our business, financial condition and results of operations may be adversely
affected.
The intimate apparel industry is highly
competitive, both on the retail and wholesale levels. Our retail
division competes with a variety of retailers, including national department
store chains, national and international specialty apparel chains, apparel
catalog businesses and online apparel businesses that sell similar lines of
merchandise. Many of Frederick’s of Hollywood’s competitors have
greater financial, distribution, logistics, marketing and other resources
available to them and may be able to adapt to changes in customer requirements
more quickly, devote greater resources to the design, sourcing, distribution,
marketing and sale of their products, generate greater national brand
recognition or adopt more aggressive pricing policies. If we are
unable to overcome these potential competitive disadvantages, such factors could
have an adverse effect on our business, financial condition and results of
operations.
The wholesale industry is characterized
by a large number of small companies manufacturing and selling unbranded
merchandise, and by several large companies which have developed widespread
consumer recognition of the brand names associated with merchandise manufactured
and sold by these companies. In addition, some of the larger retailers to whom
our wholesale division has historically sold its products have sought to expand
the development and marketing of their own brands and to obtain intimate apparel
products directly from the same or similar sources from which our wholesale
division obtains its products. Many of these companies have greater
financial, technical and sourcing capabilities than we do. If our
wholesale division does not continue to provide high quality products and
reliable services on a timely basis at competitive prices, we may not be able to
continue to compete in the wholesale intimate apparel industry. If we
are unable to compete successfully, we could lose one or more of our significant
customers which, if not replaced, could negatively impact sales and have an
adverse effect on our business, financial condition and results of
operations.
The failure to
successfully order and manage inventory to reflect customer demand and
anticipate changing consumer preferences and buying trends may adversely affect
our revenue and profitability.
Our success depends, in part, on
management’s ability to anticipate and respond effectively to rapidly changing
fashion trends and consumer tastes and to translate market trends into
appropriate, saleable product offerings. Generally, merchandise must be
ordered well in advance of the applicable selling season and the extended lead
times may make it difficult to respond rapidly to new or changing product trends
or price changes. If we are unable to successfully anticipate, identify or
react to changing styles or trends and we misjudge the market for our products
or our customers’ purchasing habits, then our product offerings may be poorly
received by the ultimate consumer and may require substantial discounts to sell,
which would reduce sales revenue and lower profit margins. In addition, we will
incur additional costs if we need to redesign our product offerings. Brand image
also may suffer if customers believe that we are unable to offer innovative
products, respond to the latest fashion trends, or maintain product
quality.
Our
inability to consummate a financing for the amount and within the time period
required under our financing agreement with our senior lender, absent a waiver
of such requirement, will constitute an event of default under our senior
revolving credit facility.
In September and October 2009, we
amended our revolving credit facility with our senior lender to provide for a
$2.0 million bridge facility to be repaid upon the earlier of August 1, 2010 and
the consummation of a financing in which we receive net proceeds of at least
$4.4 million. Unless we receive the amount of proceeds required by
our credit facility by August 1, 2010, we will be in violation of a covenant
under our credit facility. If such violation is not waived by our
senior lender, it will constitute an event of default.
We
are required to raise additional financing under our senior revolving credit
facility and may not be able to obtain it on favorable terms, or at all, which,
in addition to violating a covenant under our credit facility, could limit our
ability to operate and dilute the ownership interests of existing
shareholders.
We are required to raise additional
funds under our senior credit facility and we cannot be certain that we will be
able to obtain such additional financing on favorable terms, or at
all. Further, if we obtain additional funding through the issuance of
equity, shareholders may experience dilution or the new equity securities may
have rights, preferences or privileges senior to those of existing holders of
common stock. Future financings may place restrictions on how we
operate our business. If we cannot raise funds on acceptable terms,
if and when needed, we may be required to curtail our operations significantly,
which could adversely affect our business.
We
depend on key personnel and we may not be able to operate and grow the business
effectively if we lose the services of any key personnel or are unable to
attract qualified personnel in the future.
We are dependent upon the continuing
service of key personnel and the hiring of other qualified employees. In
particular, we are dependent upon the management and leadership of Thomas J.
Lynch, our Chairman and Chief Executive Officer, Linda LoRe, our President and
the Chief Executive Officer of the retail division, and Thomas Rende, our Chief
Financial Officer. The loss of any of them or other key personnel could affect
our ability to operate the business effectively.
Our
retail division historically has depended on a high volume of mall traffic, the
lack of which would hurt our business.
Most Frederick’s of Hollywood stores
are located in shopping malls. Sales at these stores are influenced, in
part, by the volume of mall traffic. Frederick’s of Hollywood stores
benefit from the ability of the malls’ “anchor” tenants, generally large
department stores, and other area attractions to generate customer traffic in
the vicinity of its stores and the continuing popularity of malls as shopping
destinations. A decline in the desirability of the shopping environment of
a particular mall, whether due to the closing of an anchor tenant or competition
from non-mall retailers, or recessionary economic conditions that consumers have
been experiencing, could reduce the volume of mall traffic, which could have an
adverse effect on our business, financial condition and results of
operations.
If
leases for Frederick’s of Hollywood stores cannot be negotiated on reasonable
terms, our growth and profitability could be harmed.
The growth in our retail division’s
sales is significantly dependent on management’s ability to operate retail
stores in desirable locations with capital investments and lease costs that
allow for the opportunity to earn a reasonable return. Desirable locations and
configurations may not be available at a reasonable cost, or at all. If we
are unable to renew or replace our store leases or enter into leases for new
stores on favorable terms, our growth and profitability could be
harmed.
Our
wholesale business historically has been concentrated on one key customer,
and a significant decrease in business from or the loss of this key customer
could substantially reduce revenues.
Sales to Walmart accounted
for approximately 32% of wholesale sales for the fiscal year ended July 25,
2009. We do not have a long-term contract with Walmart and, therefore, our
wholesale business is subject to significant unpredictable increases and
decreases in sales depending upon the size and number of orders we receive from
Walmart. We experienced a significant decrease in Walmart business
during fiscal year 2009, which impacted our revenues, and our open order
position with Walmart as of July 25, 2009 was significantly lower as compared to
the prior year. Our inability to increase our Walmart orders during
fiscal year 2010 could have a material adverse effect on our business, financial
condition and results of operations.
The
extent of our foreign sourcing and manufacturing may adversely affect our
business, financial condition and results of operations.
Substantially all of our products are
manufactured outside the United States. As a result of the magnitude
of foreign sourcing and manufacturing, our retail and wholesale businesses are
subject to the following risks:
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political
and economic instability in foreign countries, including heightened
terrorism and other security concerns, which could subject imported or
exported goods to additional or more frequent inspections, leading to
delays in deliveries or impoundment of goods, or to an increase in
transportation costs of raw materials or finished
product;
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the
imposition of regulations and quotas relating to imports, including quotas
imposed by bilateral textile agreements between the United States and
foreign countries, including China, where we conduct
business;
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the
imposition of duties, taxes and other charges on
imports;
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significant
fluctuation of the value of the U.S. dollar against foreign
currencies;
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restrictions
on the transfer of funds to or from foreign countries;
and
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violations
by foreign contractors of labor and wage standards and resulting adverse
publicity.
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If these risks limit or prevent us from
selling, manufacturing or acquiring products from foreign suppliers, our
operations could be disrupted until alternative suppliers are found, which could
negatively impact our business, financial condition and results of
operations.
Our
wholesale business operates on very tight delivery schedules. If
there are delays and expected delivery dates cannot be met, it could negatively
affect our profitability.
If there is a delay in the delivery of
goods and delivery schedules cannot be met, then our wholesale customers may
cancel their orders or request a reduced price for the delivery of their
orders. If orders are canceled, it would result in an over-inventoried
position and require the sale of inventory at low or negative gross profits,
which would reduce our profitability. We may also incur extra costs to
meet customer delivery dates, which would also reduce our
profitability.
Any
disruptions at our distribution centers could materially affect our ability to
distribute products, which could lead to a reduction in our revenue and/or
profits.
Our distribution centers in Phoenix, AZ
and Poplarville, MS serve our retail and wholesale customers. There is no backup
facility or any alternate distribution arrangements in place. If we
experience disruptions at either of our distribution centers that impede the
timeliness or fulfillment of the products to be distributed, or either
distribution center is partially or completely destroyed, becomes inaccessible,
or is otherwise not fully usable, whether due to unexpected circumstances such
as weather conditions or disruption of the transportation systems or
uncontrollable factors such as terrorism and war, it would have a material
adverse effect on our ability to distribute products, which in turn would have a
material adverse effect on our business, financial condition and results of
operations.
The
failure to upgrade information technology systems as necessary could have an
adverse effect on our operations.
Some of our information technology
systems, which are primarily utilized to manage information necessary to price
and ship products, manage production and inventory and generate reports to
evaluate business operations, are dated and are comprised of multiple
applications, rather than one overarching state-of-the-art system. Modifications
involve replacing legacy systems with successor systems, making changes to
legacy systems or acquiring new systems with new functionality. If we are unable
to effectively implement these systems and update them where necessary, this
could have a material adverse effect on our business, financial condition and
results of operations.
The
processing, storage and use of personal data could give rise to liabilities as a
result of governmental regulation, conflicting legal requirements or differing
views of personal privacy rights.
The collection of data and processing
of transactions through our Frederick’s of Hollywood e-commerce website and call
centers require us to receive and store a large amount of personally
identifiable data. This type of data is subject to legislation and
regulation in various jurisdictions. We may become exposed to potential
liabilities with respect to the data that we collect, manage and process, and
may incur legal costs if our information security policies and procedures are
not effective or if we are required to defend our methods of collection,
processing and storage of personal data. Future investigations,
lawsuits or adverse publicity relating to our methods of handling personal data
could adversely affect our business, financial condition and results of
operations due to the costs and negative market reaction relating to such
developments.
Our
collection and remittance of sales and use tax may be subject to audit and may
expose us to liabilities for unpaid sales or use taxes, interest and penalties
on past sales.
We sell Frederick’s of Hollywood
products through three channels: retail specialty stores, mail order catalogs
and our e-commerce website. We have historically operated these
channels separately and account for sales and use tax
separately. Currently, our mail order and e-commerce subsidiaries
collect and pay sales tax to the relevant state taxing authority on sales made
to residents in any state in which we have a physical presence. Our
retail subsidiaries are periodically audited by state government authorities.
It is possible that one or more states may disagree with our method of
assessing and remitting these taxes, including sales tax on catalog and
e-commerce sales. We expect to challenge any and all future assertions by
state governmental authorities or private litigants that we owe sales or use
tax, but we may not prevail. If we do not prevail, we could be held liable
for additional sales and use taxes, interest and penalties which could have an
adverse effect on our profitability.
We could be sued
for trademark infringement, which could force us to incur substantial costs and
devote significant resources to defend the litigation.
We use many trademarks and product
designs in our businesses and believe these trademarks and product designs are
important to our business, competitive position and success. As
appropriate, we rely on trademark and copyright laws to protect these designs
even if not formally registered as marks, copyrights or designs. Third
parties may sue us for alleged infringement of their proprietary rights.
The party claiming infringement might have greater resources than us to
pursue its claims, and we could be forced to incur substantial costs and devote
significant management resources to defend the litigation. Moreover, if
the party claiming infringement were to prevail, we could be forced to
discontinue the use of the related trademark, patent or design and/or pay
significant damages, or to enter into expensive royalty or licensing
arrangements with the prevailing party, assuming these royalty or licensing
arrangements are available at all on an economically feasible basis, which they
may not be.
If
we cannot protect our trademarks and other proprietary intellectual property
rights, our business may be adversely affected.
We may experience difficulty in
effectively limiting unauthorized use of our trademarks and product designs
worldwide, which may cause significant damage to our brand name and our ability
to effectively represent ourselves to our agents, suppliers, vendors and/or
customers. We may not be successful in enforcing our trademark and
other proprietary rights and there can be no assurance that we will be
adequately protected in all countries or that we will prevail when defending our
trademark and proprietary rights.
Our
stock price has been highly volatile.
The trading price of our common stock
has been highly volatile. During the quarter ended July 25, 2009, the
closing sale prices of our common stock on the NYSE Amex ranged from $0.51 to
$0.85 per share and the closing sale price of our common
stock on November 23, 2009 was $1.19 per share. Since the
closing date of the merger on January 28, 2008, our stock price closed at a high
of $4.10 on January 29, 2008 and a low of $0.14 on March 3, 2009. Our
stock price is subject to wide fluctuations in response to a variety of factors,
including:
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quarterly
variations in operating results;
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general
economic conditions;
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sales
of a substantial amount of our common stock;
and
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other
events or factors that are beyond our
control.
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Any negative change in the public’s
perception of the prospects of the retail industry could further depress our
stock price regardless of our results. Other broad market fluctuations may
lower the trading price of our common stock. Following significant declines in
the market price of a company’s securities, securities class action litigation
may be instituted against that company. Litigation could result in
substantial costs and a diversion of management’s attention and
resources.
Information
in this prospectus contains forward-looking statements. These forward-looking
statements can be identified by the use of words such as “believes,”
“estimates,” “could,” “possibly,” “probably,” “anticipates,” “projects,”
“expects,” “may,” or “should” or other variations or similar words. No
assurances can be given that the future results anticipated by the
forward-looking statements will be achieved. The following matters constitute
cautionary statements identifying important factors with respect to those
forward-looking statements, including certain risks and uncertainties that could
cause actual results to vary materially from the future results anticipated by
those forward-looking statements. A description of key factors that have a
direct bearing on our results of operations is provided above under “Risk
Factors” beginning on page 2 of this Prospectus.
All
shares of our common stock offered by this prospectus are being registered for
the account of the selling shareholders. We will not receive any of the proceeds
from the sale of these shares; however, we will receive payment in cash upon
exercise of warrants held by such selling shareholders. We expect to use any
cash proceeds received from the exercise of the warrants, if any, for
general working capital purposes.
The
following table provides certain information with respect to the selling
shareholders’ beneficial ownership of our common stock as of November 23, 2009
and as adjusted to give effect to the sale of all of the shares offered by this
prospectus. Except as otherwise indicated, the number of shares reflected in the
table has been determined in accordance with Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as amended. Unless otherwise indicated,
each of the selling shareholders possesses sole voting and investment power with
respect to the securities shown.
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Beneficial Ownership Before
Offering
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Shares
Offered
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Beneficial Ownership After
Offering
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|
Fursa
Master Global Event Driven Fund LP(1)
|
|
|
7,672,682 |
(2)
|
|
|
27.8 |
% |
|
|
7,672,682 |
|
|
|
0 |
|
|
|
0 |
% |
|
Fursa
Master Rediscovered Opportunities Fund L.P.
(1)
|
|
|
1,536,163 |
(3)
|
|
|
5.7 |
% |
|
|
1,536,163 |
|
|
|
0 |
|
|
|
0 |
% |
|
Blackfriars
Master Vehicle LLC – Series 2(1)
|
|
|
598,171 |
(4)
|
|
|
2.2 |
% |
|
|
598,171 |
|
|
|
0 |
|
|
|
0 |
% |
|
Fursa
Capital Partners LP(1)
|
|
|
390,460 |
(5)
|
|
|
1.5 |
% |
|
|
390,460 |
|
|
|
0 |
|
|
|
0 |
% |
|
Tokarz
Investments, LLC(6)
|
|
|
8,685,273 |
(7)
|
|
|
32.5 |
% |
|
|
8,685,273 |
|
|
|
0 |
|
|
|
0 |
% |
|
TTG
Apparel, LLC(6)
|
|
|
1,766,322 |
|
|
|
6.7 |
% |
|
|
1,766,322 |
|
|
|
0 |
|
|
|
0 |
% |
____________________________
|
(1)
|
Fursa
Alternative Strategies, LLC (“Fursa”) may be deemed to beneficially own
these shares on behalf of the above-referenced private affiliated
investment funds and separately managed accounts over which Fursa
exercises discretionary investment authority. William F.
Harley, Chief Investment Officer of Fursa, exercises voting and
dispositive power over shares beneficially owned by Fursa. Mr.
Harley also is a member of our board of
directors.
|
|
(2)
|
Includes
(a) 298,296 shares of common stock issuable upon exercise of currently
exercisable warrants and (b) 840,240 shares of common stock issuable upon
conversion of 2,016,578 shares of Series A 7.5% Convertible Preferred
Stock.
|
|
(3)
|
Includes
425,336 shares of common stock issuable upon conversion of 1,020,806
shares of Series A 7.5% Convertible Preferred
Stock.
|
|
(4)
|
Includes
168,248 shares of common stock issuable upon conversion of 403,794 shares
of Series A 7.5% Convertible Preferred
Stock.
|
|
(5)
|
Includes
78,395 shares of common stock issuable upon conversion of 188,147 shares
of Series A 7.5% Convertible Preferred
Stock.
|
|
(6)
|
Michael
T. Tokarz is the sole controlling person and manager of each of TTG
Apparel and Tokarz Investments.
|
|
(7)
|
Includes
298,296 shares of common stock issuable upon exercise of currently
exercisable warrants.
|
Each
selling shareholder provided us with information with respect to its share
ownership. Because the selling shareholders may sell all, part or none of their
shares, we are unable to estimate the number of shares that will be held by each
selling shareholder upon resale of shares of common stock being registered
hereby. We have, therefore, assumed for the purposes of the registration
statement related to this prospectus that the selling shareholders will sell all
of their shares. See “Plan of Distribution.”
In
connection with the consummation of our merger with FOH Holdings, we entered
into a registration rights agreement with Fursa (on its behalf and on behalf of
certain accounts it manages), Tokarz Investments and TTG Apparel. Subject to the
specific conditions, these holders are allowed to request that we prepare a
registration statement with respect to an underwritten offering of their shares
of our common stock up to two times. In connection with any such requested
registration, we will select the underwriters for such registration, subject to
the reasonable consent of the requesting party, and we may preempt such a demand
to register shares if we elect to effect an underwritten primary registration in
lieu thereof. The holders are also allowed to include their shares of
our common stock on registration statements effected by us pursuant to certain
“piggyback” registration rights.
Fursa
holds an aggregate of 3,629,325 shares of our Series A 7.5% Convertible
Preferred Stock. The Series A Preferred Stock is convertible at any
time at the option of the holders into an aggregate of 1,512,219 shares of
common stock, subject to adjustment. As of July 25, 2009, we had
accrued dividends of $865,000. As of July 25, 2009, we had
approximately $13,336,000 of debt due to Fursa. This debt matures on
July 28, 2012 and bears interest at a fixed rate of 7% per annum, with 1%
payable in cash and 6% payable in kind.
Prior to
the merger, Fursa and Tokarz were the sole stockholders of FOH
Holdings. In connection with the merger, (a) we issued to Fursa and
Tokarz Investments an aggregate of 11,844,591 shares of common stock in exchange
for all of FOH Holdings’ outstanding common stock; and (b) we raised $20 million
of gross proceeds through (i) the issuance of an aggregate of 752,473 shares of
common stock upon exercise by our shareholders of non-transferable subscription
rights to purchase shares of common stock (the “Rights Offering”) and (ii) the
issuance of an aggregate of 4,929,346 shares of common stock not subscribed for
by our shareholders in the Rights Offering that were purchased on an equal basis
by Fursa and Tokarz Investments, who acted as standby purchasers (the “Standby
Purchase”). As sole consideration for their commitments in connection
with the Standby Purchase, we issued warrants to Fursa and Tokarz Investments
representing the right to purchase an aggregate of 596,592 shares of common
stock.
Prior to
the merger, FOH Holdings had a management fee arrangement with Tokarz
Investments and Fursa, whereby Tokarz Investments and Fursa received a combined
annual management fee of $200,000. The management fee arrangement
ended as of January 28, 2008, the closing date of the merger.
The
selling shareholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of the shares of
common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling shareholders may use any one or more of the
following methods when selling shares:
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
|
·
|
privately
negotiated transactions;
|
|
|
·
|
settlement
of short sales;
|
|
|
·
|
broker-dealers
may agree with the selling shareholder to sell a specified number of such
shares at a stipulated price per
share;
|
|
|
·
|
a
combination of any such methods of
sale;
|
|
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
or
|
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling shareholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling shareholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling shareholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling shareholders do not expect these commissions and discounts relating to
its sales of shares to exceed what is customary in the types of transactions
involved.
In
connection with the sale of our common stock or interests therein, the selling
shareholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
shareholders may also sell shares of our common stock short and deliver these
securities to close out its short positions, or loan or pledge the common stock
to broker-dealers that in turn may sell these securities. The selling
shareholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
shares will be sold only through registered or licensed brokers or dealers if
required under applicable state securities laws. In addition, in certain states,
the shares may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
The
selling shareholders and any broker-dealers that act in connection with the sale
of the shares might be deemed to be “underwriters” within the meaning of
Section 2(11) of the Securities Act, and any commissions received by such
broker-dealers and any profit on the resale of the shares sold by them while
acting as principals might be deemed to be underwriting discounts or commissions
under the Securities Act. The selling shareholders may agree to indemnify any
agent, dealer or broker-dealer that participates in transactions involving sales
of the shares against certain liabilities, including liabilities arising under
the Securities Act. If any of the selling shareholders is deemed to be an
“underwriter” within the meaning of Section 2(11) of the Securities Act,
such selling shareholder will be subject to the prospectus delivery requirements
of the Securities Act.
Under
applicable rules and regulations under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), any person engaged in the distribution of the
resale shares may not simultaneously engage in market making activities with
respect to our common stock for a period of two business days prior to the
commencement of the distribution. In addition, the selling shareholders may
be subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing
of purchases and sales of shares of our common stock by the selling shareholders
or any other person. We will make copies of this prospectus available to the
selling shareholders and have informed the selling shareholders of the need to
deliver a copy of this prospectus to each purchaser at or prior to the time of
the sale.
LEGAL
MATTERS
The
legality of the common stock offered by this prospectus has been passed upon by
Graubard Miller, New York, New York.
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRMS
The
financial statements incorporated in this prospectus by reference to the Annual
Report on Form 10-K for the fiscal year ended July 25, 2009 have been so
incorporated in reliance on the reports of MHM Mahoney Cohen CPAs (The New York
Practice of Mayer Hoffman McCann P.C.) and 25 MAD LIQUIDATION CPA, P.C.
(formerly known as Mahoney Cohen & Company, CPA, P.C.), each an independent
registered public accounting firm, with respect to the fiscal year given on the
authority of said firm as experts in auditing and accounting
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. Our SEC filings are available to the public over the Internet at
the SEC’s web site at http://www.sec.gov. You may also read and copy any
document we file at the SEC’s public reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information about the public reference room. In addition, we make available on
or through our corporate web site copies of these reports as soon as reasonably
practicable after we electronically file or furnish them to the SEC. Our
corporate web site can be found at www.fohgroup.com.
The SEC
allows us to incorporate by reference the information we file with it, which
means that we can disclose important information to you by referring you to
those documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus. Any information that we file after the date of this prospectus with
the SEC will automatically update and supersede the information contained in
this prospectus. This prospectus incorporates by reference our documents listed
below and any future filings we make with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act until all of the securities are
sold:
|
|
·
|
our
Annual Report on Form 10-K for the year ended July 25,
2009;
|
|
|
·
|
Amendment
No. 1 to our Annual Report on Form 10-K on Form 10-K/A for the year ended
July 25, 2009;
|
|
|
·
|
our
Current Report on Form 8-K dated October 23,
2009;
|
|
|
·
|
our
Definitive Proxy Statement on Schedule 14A dated March 17, 2009;
and
|
|
|
·
|
the
description of our common stock contained in our Registration Statement on
Form S-14 (File No. 2-70365), filed with the SEC pursuant to Section 12(b)
of the Exchange Act, including any amendment(s) or report(s) filed for the
purpose of updating such
description.
|
Potential
investors may obtain a copy of our SEC filings without charge by written or oral
request directed to Frederick’s of Hollywood Group Inc., Attention: Thomas
Rende, 1115 Broadway, New York, New York 10010, (212) 798-4700.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
|
ITEM 14.
|
OTHER
EXPENSES OF ISSUANCE AND
DISTRIBUTION
|
The
following table sets forth the fees and expenses incurred or expected to be
incurred by Frederick’s of Hollywood Group Inc. in connection with the issuance
and distribution of the securities being registered hereby. All of the amounts
shown are estimated except the SEC registration fee. Estimated fees and expenses
can only reflect information that is known at the time of filing this
registration statement and are subject to future contingencies, including
additional expenses for future offerings.
|
SEC
registration fee
|
|
$ |
1,405.71 |
|
|
Legal
fees and expenses
|
|
|
10,000.00 |
|
|
Accounting
fees and expenses
|
|
|
2,000.00 |
|
|
Miscellaneous
expenses
|
|
|
1,594.29 |
|
|
Total
|
|
$ |
15,000.00 |
|
|
ITEM 15.
|
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
|
Our
certificate of incorporation provides that we shall, to the fullest extent
permitted by Article 7 of the New York Business Corporation Law (“NYBCL”),
indemnify any and all persons whom we shall have power to indemnify under said
Article.
Section
722(a) of the NYBCL provides that a corporation may indemnify any person made,
or threatened to be made, a party to any action or proceeding (other than one by
or in the right of the corporation to procure a judgment in its favor), whether
civil or criminal, including an action by or in the right of any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the corporation served in any
capacity at the request of the corporation, by reason of the fact that he, his
testator or intestate, was a director or officer of the corporation, or served
such other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise in any capacity, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorney’s fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, if such director or officer acted in good faith, for a purpose which he
reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, 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 conduct was unlawful.
Section
722(c) of the NYBCL provides that a corporation may indemnify its directors and
officers in relation to an action by or in the right of the corporation to
procure a judgment in its favor in similar circumstances to those described in
the preceding paragraph against amounts paid in settlement and reasonable
expenses, including attorney’s fees, actually and necessarily incurred by him or
her in connection with the defense or settlement of such action, except that no
indemnification shall be made in respect of a threatened action, or a pending
action which is settled or otherwise disposed of, or any claim, issue or matter
as to which such person is adjudged liable to the corporation unless a court
determines that an indemnity is proper in the circumstances of the
case.
Section
721 of the NYBCL provides that, in addition to indemnification provided in
Article 7 of the NYBCL, a corporation may indemnify a director or officer by a
provision contained in the certificate of incorporation or by-laws or by a duly
authorized resolution of its shareholders or directors or by agreement, provided
that no indemnification may be made to or on behalf of any director or officer
if a judgment or other final adjudication adverse to the director or officer
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action, or
that such director or officer personally gained in fact a financial profit or
other advantage to which he was not legally entitled.
Section
723 of the NYBCL specifies the manner in which payment of indemnification under
Sections 722 and 721 of the NYBCL may be authorized by the corporation. It
provides that a corporation shall indemnify a person who has been successful, on
the merits or otherwise, in defending an action described in Section 722. In
other circumstances, unless ordered by a court upon application of a director or
officer under Section 724 of the NYBCL, indemnification as described above may
only be made if it is authorized in each specific case. The board of directors
can authorize indemnification, either acting as a quorum of disinterested
directors based upon a determination that the applicable standard of conduct has
been met or that indemnification is proper under the NYBCL, or based upon an
opinion by independent legal counsel that indemnification is proper in the
circumstances because the applicable standard of conduct has been met, or if the
shareholders find that the applicable standard of conduct has been
met.
Section
726 of the NYBCL permits the purchase and maintenance of insurance to indemnify
(1) the corporation for any obligation which it incurs as a result of the
indemnification of directors and officers under sections outlined above, (2)
directors and officers in instances in which they may be indemnified by the
corporation under such sections, and (3) directors and officers in instances in
which they may not otherwise be indemnified by the corporation under such
sections, provided the contract of insurance covering such directors and
officers provides, in a manner acceptable to the New York State superintendent
of insurance, for a retention amount and for co-insurance.
In
addition, Section 402(b) of the NYBCL provides that a corporation’s Certificate
of Incorporation may include a provision eliminating or limiting the personal
liability of its directors to the corporation or its shareholders for damages
for any breach of duty in such capacity, except liability if a judgment or final
adjudication establishes that the director’s acts or omissions were in bad faith
or involved intentional misconduct or a knowing violation of law or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled or that his acts violated Section 719 of the NYBCL or
liability if the act or omission occurred prior to the adoption of a provision
authorized by this section. Our certificate of incorporation contains a
provision explicitly authorizing a limitation on such liabilities as permitted
by Section 402(b).
Pursuant
to employment agreements with certain of our executives, we are obligated to
indemnify each executive and hold the executive harmless against all costs,
expenses (including, without limitation, fines, excise taxes and reasonable
attorneys’ fees) and liabilities (other than settlements to which we do not
consent, which consent shall not be unreasonably withheld) (collectively,
“Losses”) reasonably incurred by the executive in connection with any claim,
action, proceeding or investigation brought against or involving the executive
with respect to, arising out of or in any way relating to the executive’s
employment with us or service as an officer; provided, however, that we are not
required to indemnify the executive for Losses incurred as a result of the
executive’s intentional misconduct or gross negligence (other than matters where
the executive acted in good faith and in a manner the executive reasonably
believed to be in and not opposed to our best interests). We also
agreed to advance any and all expenses (including, without limitation, the fees
and expenses of counsel) reasonably incurred by the executive in connection with
any such claim, action, proceeding or investigation, provided the executive
first enters into an appropriate agreement for repayment of such advances if
indemnification is found not to have been available.
We
maintain a directors’ and officers’ insurance policy. The policy insures
directors and officers against unindemnified losses arising from certain
wrongful acts in their capacities as directors and officers and reimburses us
for those losses for which we have lawfully indemnified the directors and
officers. The policy contains various exclusions, none of which apply to this
offering.
A list of
exhibits filed herewith is contained in the exhibit index that immediately
precedes such exhibits and is incorporated herein by reference.
The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(5) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(6) That,
for purposes of determining liability of the undersigned registrant under the
Securities Act to any purchaser in the initial distribution of the securities,
the registrant undertakes that in a primary offering of securities of the
registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
registrant or used or referred to by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the registrant or its securities provided by or on
behalf of the registrant; and
(iv) Any
other communication that is an offer in the offering made by the registrant to
the purchaser.
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 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 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.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, hereunto duly authorized, in New York, New York on November 25,
2009.
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FREDERICK’S
OF HOLLYWOOD GROUP, INC
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By:
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/s/ Thomas J. Lynch
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Name:
Thomas J. Lynch
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Title: Chairman
and Chief Executive Officer
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KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Thomas J. Lynch and Thomas Rende, and each of them,
with full power to act without the other, such person’s true and lawful
attorneys-in-fact and agents, with full power of substitution and
re-substitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement, any and all amendments thereto
(including post-effective amendments), any subsequent Registration Statements
pursuant to Rule 462 of the Securities Act of 1933, as amended, and any
amendments thereto and to file the same, with exhibits and schedules thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
necessary or desirable 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, or any of them, or their
or his substitute or substitutes, 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.
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By:
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/s/Thomas J. Lynch
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Chairman
of the Board and Chief Executive Officer
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November
25, 2009
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Thomas
J. Lynch
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(Principal
Executive Officer)
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By:
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/s/ Thomas Rende
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Chief
Financial Officer (Principal Financial Officer
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November
25, 2009
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Thomas
Rende
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and
Principal Accounting Officer)
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By:
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/s/ Linda LoRe
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President
and Director
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November
25, 2009
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Linda
LoRe
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By:
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/s/ Peter Cole
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Director
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November
25, 2009
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Peter
Cole
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By:
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/s/ John Eisel
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Director
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November
25, 2009
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John
Eisel
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By:
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/s/ William F. Harley
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Director
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November
25, 2009
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William
F. Harley
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By:
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/s/ Michael Salberg
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Director
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November
25, 2009
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Michael
Salberg
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By:
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/s/ Joel Simon
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Director
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November
25, 2009
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Joel
Simon
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By:
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/s/ Milton J. Walters
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Director
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November
25, 2009
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Milton
J. Walters
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EXHIBIT INDEX
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5.1
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Opinion of
Graubard Miller.*
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10.1
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Registration
Rights Agreement, dated as of January 28, 2008, by and among the Company,
Fursa, Tokarz Investments and TTG Apparel LLC (incorporated by reference
to Exhibit 10.3 of the Issuer’s Form 8-K filed on February 1,
2008).
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23.1
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Consent
of MHM Mahoney Cohen CPAs (The New York Practice of Mayer Hoffman
McCann P.C.)*
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23.2
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Consent
of 25 MAD LIQUIDATION CPA, P.C. (formerly known as Mahoney Cohen
& Company, CPA, P.C.)*
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23.3
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Consent
of Graubard Miller (included in Exhibit 5.1).*
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24.1
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Power
of Attorney (included on the signature page to the registration
statement).*
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_____________________
* Filed
herewith