As
filed with the Securities and Exchange Commission on October 23,
2006
Registration
No. 333-137383
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 2 to
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ICONIX
BRAND GROUP, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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11-2481903
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
employer identification
no.)
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1450
Broadway
New
York, New York 10018
Telephone:
(212) 730-0030
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Neil
Cole, Chief Executive Officer
Iconix
Brand Group, Inc.
1450
Broadway
New
York, New York 10018
Telephone:
(212) 730-0030
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
________________
Copies
to:
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Robert
J. Mittman, Esq.
Ethan
Seer, Esq.
Blank
Rome LLP
405
Lexington Avenue
New
York, NY 10174
Telephone:
(212) 885-5555
Facsimile:
(212) 885-5001
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________________
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable on or after the effective date of this Registration
Statement.
If
any of
the 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, please check the following box. x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, 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, 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 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, please 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, please
check the following box. ¨
_______________
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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
expenses payable by the Registrant in connection with the issuance and
distribution of the securities being registered (estimated except for the SEC
Registration fee)are as follows:
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SEC
registration fee
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$
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6,111.03
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Accounting
fees and expenses
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15,000.00
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Legal
fees and expenses
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20,000.00
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Miscellaneous
expenses
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3,888.97
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Total
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$
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45,000.00
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Item
15. Indemnification of Directors and Officers.
Section
145 of the General Corporation Law of the State of Delaware (“GCL”) provides for
the indemnification of officers and directors under certain circumstances
against expenses incurred in successfully defending against a claim and
authorizes Delaware corporations to indemnify their officers and directors
under
certain circumstances against expenses and liabilities incurred in legal
proceedings involving such persons because of their being or having been an
officer or director.
Section
102(b) of the GCL permits a corporation, by so providing in its certificate
of
incorporation, to eliminate or limit director’s liability to the corporation and
its shareholders for monetary damages arising out of certain alleged breaches
of
their fiduciary duty. Section 102(b)(7) of the GCL provides that no such
limitation of liability may affect a director’s liability with respect to any of
the following: (i) breaches of the director’s duty of loyalty to the corporation
or its shareholders; (ii) acts or omissions not made in good faith or which
involve intentional misconduct of knowing violations of law; (iii) liability
for
dividends paid or stock repurchased or redeemed in violation of the GCL; or
(iv)
any transaction from which the director derived an improper personal benefit.
Section 102(b)(7) does not authorize any limitation on the ability of the
corporation or its shareholders to obtain injunctive relief, specific
performance or other equitable relief against directors.
Article
Ninth of the registrant’s Certificate of Incorporation and the registrant’s
By-laws provide that all persons who the registrant is empowered to indemnify
pursuant to the provisions of Section 145 of the GCL (or any similar provision
or provisions of applicable law at the time in effect), shall be indemnified
by
the registrant to the full extent permitted thereby. The foregoing right of
indemnification shall not be deemed to be exclusive of any other rights to
which
those seeking indemnification may be entitled under any by-law, agreement,
vote
of shareholders or disinterested directors, or otherwise.
Article
Tenth of the registrant’s Certificate of Incorporation provides that no director
of the registrant shall be personally liable to the registrant or its
stockholders for any monetary damages for breaches of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the registrant or its stockholders; (ii) for acts or omissions not
in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the GCL; or (iv) for any transaction from which
the director derived an improper personal benefit.
The
registrant's employment agreements with Mr. Neil Cole, the registrant’s Chief
Executive Officer, Mr. Andrew Tarshis, the registrant’s Senior Vice President
and General Counsel and Ms. Deborah Sorell Stehr, the registrant’s Senior Vice
President-Business Affairs and Licensing provide that the registrant shall
indemnify each of them for expenses incurred by them arising from actions,
proceedings or claims against such persons while performing services for the
registrant as an employee, officer or director. Mr. Cole’s employment agreement
also provides for the registrant to use its best efforts to obtain directors’
and officers’ liability insurance for him and the employment agreements for Mr.
Tarshis and Ms. Stehr provide that such persons will be added to the
registrant’s directors' and officers' liability insurance.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable.
Item
16. Exhibits.
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5
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Opinion
of Blank Rome LLP*
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23.1
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Consent
of BDO Seidman, LLP, Independent Registered Public Accounting Firm
of
Iconix Brand Group, Inc. +
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23.2
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Consent
of BDO Seidman, LLP, Independent Registered Public Accounting Firm
of JBC
Holdings, LLC+
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23.3
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Consent
of BDO Seidman, LLP, Independent Registered Public Accounting Firm
of Mudd
(USA) LLC+
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23.4
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Consents
of Cohn Handler & Co (related to the financial information for
Rampage)+
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23.5
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Consent
of Blank Rome LLP (included in Exhibit 5 hereto)
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24
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Power
of Attorney (included on the signature page of the Registration Statement
filed with the SEC on September 15,
2006)
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________
* Filed
herewith
+ Previously
filed
Item
17. Undertakings
Undertaking
Required by Regulation S-K, Item 512(a).
The
undersigned registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
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i.
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933, as amended (the “Securities
Act”);
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ii.
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To
reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent
a
fundamental change in the information set forth in the Registration
Statement;
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iii.
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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;
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provided,
however, that
clauses (i), (ii) and (iii) do not apply if the information required to be
included in a post-effective amendment by such clauses 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 therein, and the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(4)
That,
for the purpose of determining liability under the Securities Act to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance
on
Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the
registration statement or made in any such document immediately prior to such
date of first use.
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be initial
bona fide offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or controlling persons pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in
the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
New
York, State of New York, on the 23rd
day of
October 2006.
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ICONIX
BRAND
GROUP, INC. |
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By: |
/s/ Neil
Cole |
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Neil
Cole |
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President
and
Chief Executive Officer |
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Neil Cole
Neil
Cole
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Chief
Executive Officer, President and Director (Principal Executive
Officer)
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October
23, 2006
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/s/
Warren Clamen
Warren
Clamen
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Chief
Financial Officer (Principal Financial and Accounting
Officer)
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October
23, 2006
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Barry
Emanuel
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Director
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, 2006
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Steven
Mendelow
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Director
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, 2006
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*
Michael
Groveman
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Director
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October
23 , 2006
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*
Drew
Cohen
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Director
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October
23 , 2006
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*By:
/s/
Neil Cole
Neil Cole, Attorney-in-fact