As
filed with the Securities and Exchange Commission on November 19, 2012
Registration
No. 333-182782
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
AMENDMENT
NO. 1 TO
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)
New
York
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13-5651322
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(State
or Other Jurisdiction of Incorporation or
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(I.R.S.
Employer Identification Number)
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Organization)
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6255 Sunset
Boulevard
Hollywood,
California 90028
(323)
466-5151
(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.
6255 Sunset
Boulevard
Hollywood,
California 90028
(323) 466-5151
(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
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, 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
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.
¨
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act.
£
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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S
Smaller reporting company
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CALCULATION
OF REGISTRATION FEE
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
(3)
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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 $0.01
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28,405,331
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(2)
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$
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0.39
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$
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11,078,079.09
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$
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1,269.55
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(4)
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Total
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$
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1,269.55
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(4)
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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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Shares of common stock
which may be offered pursuant to this registration statement
consist of (i) 26,905,331 shares issuable upon conversion of
$5,000,000 of Series A Convertible Preferred Stock and $2,802,546
of cumulative dividends at the rate of 9% per annum payable
quarterly in arrears in shares of Series A Convertible Preferred
Stock (assuming the dividends cumulate over a five-year period),
both at an assumed conversion price of $0.29 per share (which
represents the lowest possible price to which the conversion
price may be reduced) and (ii) 1,500,000 shares issuable upon
the exercise of certain warrants.
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(3)
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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 MKT on July16, 2012, which was $0.39
per share.
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(4)
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The filing fee has previously
been paid.
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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.
The information
in this prospectus is not complete and may be changed. The selling shareholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities
and neither Frederick’s of Hollywood Group Inc. nor the selling shareholder is soliciting offers to buy these securities
in any state where the offer or sale is not permitted.
Preliminary
Prospectus
Subject
to Completion, Dated November 19, 2012
FREDERICK’S
OF HOLLYWOOD GROUP INC.
28,405,331
Shares of Common Stock
This prospectus
relates to the resale of up to 28,405,331 shares of our common stock by the selling shareholder set forth in this prospectus under
the section entitled
Selling Shareholder
beginning on page 9 of this prospectus.
We will not
receive any proceeds from the sale of our shares by the selling shareholder; however, we will receive payment in cash upon exercise
of certain warrants held by such selling shareholder.
The securities
are being registered to permit the selling shareholder to sell the securities from time to time in the public market. The selling
shareholder may sell the securities through ordinary brokerage transactions or through any other means described under the section
entitled
Plan of Distribution
beginning on page 10. We do not know when or in what amount the selling shareholder may offer
the securities for sale. The selling shareholder may sell any, all or none of the securities offered by this prospectus.
Our common
stock is traded on the NYSE MKT under the symbol “FOH.” The last reported sale price of our common stock on the NYSE
MKT on November 12, 2012 was $0.28 per share.
Investing
in our common stock involves a high degree of risk.
See
the section entitled
Risk Factors
, beginning on page 3.
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 _______ ___, 2012.
FREDERICK’S
OF HOLLYWOOD GROUP INC.
TABLE
OF CONTENTS
PROSPECTUS SUMMARY
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1
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RISK FACTORS
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3
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FORWARD-LOOKING STATEMENTS
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8
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USE OF PROCEEDS
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8
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SELLING SHAREHOLDER
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9
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PLAN OF DISTRIBUTION
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10
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LEGAL MATTERS
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12
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EXPERTS
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12
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WHERE YOU CAN FIND MORE INFORMATION
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12
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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.
PROSPECTUS
SUMMARY
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, whereby FOH Holdings, Inc. became our wholly-owned subsidiary.
FOH Holdings, Inc. 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.
Through
our subsidiaries, we sell women’s apparel and related products under our proprietary
Frederick’s of Hollywood
®
brand predominantly through our U.S. mall-based specialty retail stores, which are referred to as “Stores,”
and through our catalog and website at www.fredericks.com, which are referred to collectively as “Direct.” As of July
28, 2012, we operated 118 Frederick’s of Hollywood stores in 29 states.
Background of the Offering
On May
23, 2012, we entered into a Series A Preferred Stock Purchase Agreement, pursuant to which we sold $5.0 million of Series A Convertible
Preferred Stock to TTG Apparel, LLC, which together with its affiliate, Tokarz Investments, LLC, are significant shareholders
of our company. The Series A Convertible Preferred Stock is generally convertible at any time by the holder into shares of common
stock at a conversion price of $1.05 per share. Additionally, dividends accrued on the Series A Convertible Preferred Stock will
be issued in additional shares of Series A Convertible Preferred Stock and such additional shares generally will be convertible
at any time at the option of the holder into shares of common stock at a conversion price of $0.45 per share. In addition, we
issued to TTG Apparel, LLC three, five, and seven year warrants, each to purchase 500,000 shares of common stock (for an aggregate
of 1,500,000 shares of common stock) at exercise prices of $0.45, $0.53 and $0.60 per share, respectively.
We
agreed to register the resale of the shares of common stock issuable upon conversion of the Series A Convertible Preferred Stock
(and cumulative dividends) and upon exercise of the warrants. Accordingly, on behalf of TTG Apparel, LLC, we are registering an
aggregate of 28,405,331 shares of common stock for resale under this prospectus, consisting of
(i) 26,905,331 shares
of common stock issuable upon conversion of $5,000,000 of Series A Convertible Preferred Stock and $2,802,546 of cumulative dividends
at the rate of 9% per annum payable quarterly in arrears in shares of Series A Convertible Preferred Stock (assuming the dividends
cumulate over a five-year period), both at an assumed conversion price of $0.29 per share (which represents the lowest possible
price to which the conversion price may be reduced) and (ii) 1,500,000 shares of common stock issuable upon the exercise of the
warrants. The 28,405,331 shares of common stock being registered for resale under this prospectus represent approximately 292%
of our outstanding common stock held by non-affiliates, assuming the conversion price of the Series A Convertible Preferred Stock
is reduced to its lowest possible price of $0.29 and dividends cumulate on the Series A Convertible Preferred Stock for a five-year
period. Such shares of common stock had an aggregate value of $8,237,546, based on the closing price of our common stock of $0.29
on May 23, 2012, the closing date of the sale of the Series A Convertible Preferred Stock.
Notwithstanding
the foregoing, in accordance with the additional listing requirements of the NYSE MKT and the Series A Preferred Stock Purchase
Agreement, we are not permitted to issue to TTG Apparel, LLC more than 3,500,000 shares of common stock upon conversion or exercise
of the Series A Convertible Preferred Stock or warrants until shareholder approval relating to such issuance is obtained. We intend
to hold an annual meeting of shareholders to approve this issuance in January 2013. If the issuance is not approved by our shareholders,
TTG Apparel, LLC will be restricted from converting the Series A Convertible Preferred Stock and exercising its warrants for an
amount in excess of an aggregate of 3,500,000 shares of common stock and we will not be permitted to issue such shares to TTG
Apparel, LLC. We also will not be permitted to exercise our voluntary right of redemption on the Series A Convertible Preferred
Stock until shareholder approval is obtained. However, because TTG Apparel, LLC and its affiliate, Tokarz Investments, LLC, together
own approximately 26% of our common stock, and Fursa Alternative Strategies LLC and Arsenal Group LLC, our two largest shareholders
aside from TTG Apparel, LLC and Tokarz Investments, LLC and who are controlled by William F. Harley, one of our directors, and
have agreed to vote all shares held by them and the funds and accounts affiliated with or managed by them or their
affiliates in favor of the issuance, collectively own approximately 44% of our common stock, it is unlikely that the proposal
will not be approved.
Additional
information on the relationships between us and TTG Apparel, LLC and Tokarz Investments, LLC and the conversion terms of the Series
A Convertible Preferred Stock are described in more detail in the section entitled
Selling Shareholder
.
Corporate Information
Our principal
executive offices are located at 6255 Sunset Boulevard, Hollywood, California 90028 and our 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.
RISK FACTORS
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 prospectus entitled
Forward Looking Statements
. The risks and uncertainties described below are
not the only ones we face. 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.
General economic conditions,
including continued weakening of the economy, may affect consumer purchases of discretionary items, which could adversely affect
our sales.
Since fiscal
year 2009, there has been a significant deterioration in the global financial markets and economic environment, which we believe
has negatively impacted consumer spending at many retailers, including our company. 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 revenue and profits.
If we cannot compete effectively
in the retail apparel industry, our business, financial condition and results of operations may be adversely affected.
The retail
apparel industry is highly competitive. We compete 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 our 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 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 consumers and may require substantial discounts to sell, which would reduce sales revenue and lower profit
margins. 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.
We currently have a working
capital deficiency which could negatively impact our operations.
As of
July 28, 2012, we had a working capital deficiency of $6,326,000. We plan to rely on available borrowings under our revolving
credit facility with Salus Capital Partners, LLC, together with our projected operating cash flows, to meet our working capital
needs. If we require working capital and it is unavailable to us on acceptable terms or at all, it could result in our inability
to successfully update and expand our product offerings in order to keep our selections fresh and appealing to our customers.
The foregoing could negatively impact our results of operations.
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, Don Jones, our President and Chief
Operating Officer, 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.
We historically have 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. Our 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 or renewed on reasonable terms, our ability to achieve profitability could be harmed.
Our sales
are 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, enter into leases for new stores or terminate
leases for unprofitable stores on favorable terms, our ability to achieve profitability could be harmed.
The extent of our foreign
sourcing and manufacturing may adversely affect our business, financial condition and results of operations.
Substantially
all of the products that we purchase from third-party vendors are manufactured outside the United States. As a result of the magnitude
of foreign sourcing and manufacturing, our business is 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 products;
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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;
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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 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.
Any disruptions at our
distribution center could materially affect our ability to distribute products, which could lead to a reduction in our revenue
and/or profits.
Our distribution
center in Phoenix, Arizona serves our customers. There is no backup facility or any alternate distribution arrangements
in place. If we experience disruptions at our distribution center that impede the timeliness or fulfillment of the products
to be distributed, or our 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.
Our product licensees may
not comply with standards, which could harm our brand, reputation and business.
We license
our trademarks to third parties for various products. While we enter into comprehensive licensing agreements with our licensees
covering product design, product quality, sourcing, manufacturing, marketing and other requirements, our licensees may not comply
fully with those agreements. Non-compliance could include marketing products under our brand name that do not meet our quality
and other requirements, which could harm our brand equity, reputation and business.
Our efforts to expand internationally
through store licensing and other arrangements may not be successful and could impair the value of our brand.
We are
currently evaluating several opportunities to grow our business through international expansion. In March 2011, we entered into
a licensing agreement with a subsidiary of Emirates Associated Business Group, or EABG, which provides for EABG to build and operate
Frederick’s of Hollywood stores in the Middle East. We have no prior experience operating through this type of third
party arrangement, and it may not be successful The effect of this type of arrangement on our business and results of operations
is uncertain and will depend upon various factors, including the demand for our products in new markets internationally. In addition,
certain aspects of this arrangement are not directly within our control, such as the ability of EABG to meet its projections regarding
store openings and sales. Moreover, while the agreement may provide us with certain termination rights, to the extent that EABG
does not operate its stores in a manner consistent with our brand and store concepts, the value of our brand could be impaired.
In addition, our failure to comply with applicable laws and regulations in connection with this agreement could have an adverse
effect on our results of operations.
Any material disruption
of our information systems could disrupt our business and reduce our sales.
We rely on
various information technology systems to manage our operations. We may experience operational problems with our information systems
as a result of system failures, viruses, computer “hackers” or other causes. Any material disruption or slowdown of
our systems, including a disruption or slowdown caused by our failure to successfully upgrade our systems, could cause information,
including data related to customer orders, to be lost or delayed which could result in delays in the delivery of merchandise to
our stores and customers or lost sales, which could reduce demand for our merchandise and cause our sales to decline. Moreover,
we may not be successful in developing or acquiring technology that is competitive and responsive to the needs of our customers
and might lack sufficient resources to make the necessary investments in technology to compete with our competitors. Accordingly,
if changes in technology cause our information systems to become obsolete, or if our information systems are inadequate to handle
our business requirements, we could lose customers.
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.
Our Direct
business collects and pays sales tax to the relevant state taxing authority on sales made to residents in any state in which we
have a physical presence. It is possible that one or more states may disagree with our method of assessing and remitting these
taxes, including sales taxes on Direct 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 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 business 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
volatile.
The trading
price of our common stock has been volatile. During the quarter ended July 28, 2012, the closing sale prices of our common
stock on the NYSE MKT ranged from $0.23 to $0.45 per share and the closing sale price of our common stock on November 12, 2012
was $0.28 per share. 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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low
trading volume; 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 for 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.
The NYSE MKT may delist
our common stock, which could limit investors’ ability to make transactions in our common stock.
Our common
stock is listed on the NYSE MKT, a national securities exchange. In order to continue listing our common stock, we must
maintain certain financial, distribution and stock price levels. Generally, we must maintain a minimum amount of shareholders’
equity (usually between $2 million and $6 million) and a minimum number of public shareholders (usually 300 shareholders or 200,000
shares held by our non-affiliates). Additionally, our common stock cannot have what is deemed to be a “low selling price”
as determined by the exchange.
On November
30, 2011, we received a notice from the NYSE MKT indicating that we were not in compliance with (a) Section 1003(a)(i) of the
Company Guide since we reported shareholders’ equity of less than $2 million at July 30, 2011 and losses from continuing
operations and/or net losses in two of our three most recent fiscal years and (b) Section 1003(a)(ii) of the Company Guide with
shareholders’ equity of less than $4 million and losses from continuing operations and/or net losses in three of our four
most recent fiscal years. On February 3, 2012, the NYSE MKT notified us that it had accepted our plan to regain compliance with
the foregoing rules of the Company Guide and granted us an extension until May 30, 2013 to evidence compliance with Sections 1003(a)(i)
and (ii) of the Company Guide. We are subject to periodic review by the staff of the NYSE MKT during the extension period. Failure
to make progress consistent with the Plan or to regain compliance with the continued listing standards by the end of the extension
period could result in the NYSE MKT initiating delisting proceedings pursuant to Section 1009 of the Company Guide.
If our common
stock is delisted, we could face material adverse consequences, including:
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·
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a
limited availability
of market quotations
for our common stock;
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·
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reduced
liquidity in the
trading of our stock;
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·
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a
limited amount of
news coverage; and
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·
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a
decreased ability
to issue additional
securities or obtain
additional financing
in the future.
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There
will be a significant number of shares of common stock eligible for sale, which could depress the market price of our stock.
Following
the effective date of the registration statement covering the shares of common stock issuable upon conversion of the preferred
stock (and cumulative dividends) or exercise of the warrants issued in the Series A Convertible Preferred Stock transaction, a
large number of shares of common stock will be available for sale in the public market. This could harm the market price of our
stock. Further, shares may be offered from time to time in the open market pursuant to Rule 144 under the Securities Act of 1933,
as amended, or the Securities Act, and these sales may depress the market for our common stock.
If
we are unable to obtain shareholder approval of the issuance of the shares of common stock underlying the Series A Convertible
Preferred Stock and warrants sold to TTG Apparel, LLC, we may be restricted from issuing additional shares in the future.
So
long as any shares of Series A Convertible Preferred Stock are outstanding, we may not,
without the affirmative
vote of the holders of a majority of the then outstanding shares of Series A Convertible Preferred Stock, issue any shares of
common stock or equity or debt security convertible into common stock at a price less than $0.29 per share. While the terms of
the Series A Convertible Preferred Stock provide that we can redeem it at any time at our option, we have agreed that until we
obtain shareholder approval for the full issuance of shares of common stock issuable upon conversion of the Series A Convertible
Preferred Stock and upon exercise of the warrants, we will not exercise such redemption right. Accordingly, if we are unable to
obtain shareholder approval of the issuance, we may be restricted from issuing additional shares of common stock in the future
if the holder of the Series A Convertible Preferred Stock does not consent to such issuance.
FORWARD-LOOKING
STATEMENTS
When used
in this prospectus, the words or phrases “will likely result,” “management expects” or “we expect,”
“will continue,” “is anticipated,” “estimated,” “believes,” “could,”
“possibly,” “probably,” “anticipates,” “projects,” “may,” or “should”
or other variations or similar words are intended to identify “forward-looking statements” within the meaning of the
Private Securities Litigation Reform Act of 1995. Readers are cautioned not to place undue reliance on any such forward-looking
statements, each of which speaks only as of the date made. We have no obligation to publicly release the result of any revisions
which may be made to any forward-looking statements to reflect anticipated or unanticipated events or circumstances occurring
after the date of such statements.
Such statements
are subject to certain risks and uncertainties that could cause actual results to differ materially from historical earnings and
those presently anticipated or projected. In assessing forward-looking statements contained herein, readers are urged to carefully
read those statements. Among the factors that could cause actual results to differ materially are: competition; business conditions
and industry growth; rapidly changing consumer preferences and trends; general economic conditions; working capital needs; continued
compliance with government regulations; loss of key personnel; labor practices; product development; management of growth; increases
of costs of operations or inability to meet efficiency or cost reduction objectives; timing of orders and deliveries of products;
risks of doing business abroad; and our ability to protect our intellectual property.
A description
of key factors that have a direct bearing on our results of operations is provided above under
Risk Factors
beginning on
page 3 of this Prospectus.
USE OF
PROCEEDS
All shares
of our common stock offered by this prospectus are being registered for the account of the selling shareholder. We will not receive
any of the proceeds from the sale of these shares; however, we will receive payment in cash upon exercise of certain warrants
held by such selling shareholder. We expect to use any cash proceeds received from the exercise of the warrants, if any, for general
working capital purposes.
SELLING
SHAREHOLDER
The following
table provides certain information with respect to the selling shareholder’s beneficial ownership of our common stock as
of November 12, 2012 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, or the Exchange Act. Under this rule, the selling shareholder is deemed to beneficially
own the number of shares issuable upon exercise or conversion of warrants, options or other convertible securities it holds that
are exercisable or convertible within 60 days from the date of this prospectus. However, for purposes of presentation, we have
included the full amount of the shares being registered by this prospectus even though such securities might not be issuable within
60 days.
The selling
shareholder provided us with information with respect to its share ownership. Because the selling shareholder may sell all, part
or none of their shares, we are unable to estimate the number of shares that will be held by the 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 shareholder will sell all of its shares. See
Plan of Distribution
.
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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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Selling Shareholder
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|
Shares
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Percent
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|
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Hereby
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Shares
|
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Percent
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TTG Apparel, LLC
(1)
|
|
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30,171,653
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(2)(3)
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44.8
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%
|
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28,405,331
|
(2)
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1,766,322
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(3)
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2.6
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%
|
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(1)
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According to a Schedule 13D/A,
dated May 23, 2012, and filed with the SEC on May 30, 2012, Michael
T. Tokarz is the sole controlling person and manager of TTG Apparel,
LLC.
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(2)
|
Includes an aggregate
of (i) 17,241,379 shares of common stock issuable upon
conversion of $5,000,000 of Series A Convertible Preferred
Stock at a conversion price of $0.29 per share (which
represents the lowest possible price to which the conversion
price may be reduced, as described below) and an aggregate
of 9,663,952 shares of common stock issuable upon conversion
of $2,802,546 of cumulative dividends at the rate of 9%
per annum payable quarterly in arrears in shares of Series
A Convertible Preferred Stock (assuming the dividends
cumulate over a five-year period) at a conversion price
of $0.29 per share (which represents the lowest possible
price to which the conversion price may be reduced, as
described below) and (ii) 1,500,000 shares of common stock
issuable upon exercise of warrants.
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(3)
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Does not include an aggregate
of 8,386,977 shares of common stock beneficially owned by Tokarz
Investments, LLC which is controlled by Michael T. Tokarz.
|
Description of the Series
A Convertible Preferred Stock
On May
23, 2012, we entered into a Series A Preferred Stock Purchase Agreement, pursuant to which we sold $5,000,000 of Series A Convertible
Preferred Stock to TTG Apparel, LLC. TTG Apparel, LLC is neither a broker-dealer nor an affiliate of a broker-dealer. In addition,
we issued to TTG Apparel, LLC three, five, and seven year warrants, each to purchase 500,000 shares of common stock (for an aggregate
of 1,500,000 shares of common stock) at exercise prices of $0.45, $0.53 and $0.60 per share, respectively. The warrants are exercisable
at any time until the expiration dates (May 23, 2015, May 23, 2017 and May 23, 2019, respectively).
Cumulative
dividends on the Series A Convertible Preferred Stock are payable quarterly in arrears at the rate of 9% per annum in additional
shares of Series A Convertible Preferred Stock (“PIK Shares”). The Series A Convertible Preferred Stock other than
the PIK Shares may be initially converted at any time, at the option of the holder, into shares of common stock at a conversion
price of $1.05 per share (“Conversion Price”), and the PIK Shares may be initially converted at any time, at the option
of the holder, into shares of common stock at a conversion price of $0.45 per share (“PIK Share Conversion Price”).
The Conversion Price and PIK Share Conversion Price will be adjusted for customary structural changes such as stock splits and
dividends. The Conversion Price will also be adjusted if we sell common stock or common stock equivalents at a price below the
Conversion Price, and the PIK Share Conversion Price will be adjusted if we sell common stock or common stock equivalents at a
price below the PIK Share Conversion Price; provided, however, that the foregoing conversion price adjustments can never result
in a conversion price of less than $0.29 per share. Accordingly, the maximum number of shares of common stock that the Series
A Preferred Stock and PIK Shares may be converted into over a five-year period is 26,905,331.
A
description of the terms of the Series A Convertible Preferred Stock is included in our
Current Report on Form 8-K
dated May 23, 2012 and filed with the SEC on May 29, 2012.
Description of Relationship
with Selling Shareholder and Affiliates
TTG
Apparel, LLC
was formed for the purpose of investing in our securities. TTG Apparel, LLC originally acquired 3,532,644
shares of our common stock on February 17, 2004 in a private transaction for a purchase price of $6,005,494.80. On January 28,
2008, immediately prior to our merger with FOH Holdings described below, we completed a one for two reverse split of our common
stock. Following the reverse split, TTG Apparel, LLC held the 1,766,322 shares of common stock it holds as of the date of this
prospectus.
On January
28, 2008, we consummated a merger with FOH Holdings, Inc., a privately-held Delaware corporation, whereby FOH Holdings, Inc. became
our wholly-owned subsidiary. Prior to the merger, Tokarz Investments, LLC, an affiliate of TTG Apparel, LLC that was formed for
the purpose of making various investments for the Tokarz family, including in our securities, owned approximately 50% of the outstanding
common stock of FOH Holdings, Inc. As a result of the merger, and after giving effect to the reverse split described above, Tokarz
Investments, LLC received 5,922,304 shares of our common stock.
In connection
with the merger, we engaged in a rights offering which resulted in Tokarz Investments, LLC purchasing 2,464,673 additional shares
of common stock for an aggregate purchase price of $8,675,648.96 as a standby purchaser. In consideration for acting as a standby
purchaser, we also issued Tokarz Investments, LLC warrants to purchase up to an aggregate of 298,296 post-split shares of common
stock with an exercise price of $3.52 per share. Such warrants have since expired.
PLAN OF
DISTRIBUTION
We are
registering the shares of common stock issuable upon conversion of the Series A Convertible Preferred Stock (and cumulative dividends)
and exercise of the warrants received by TTG Apparel, LLC to permit the resale of these shares of common stock by the holder from
time to time after the date of this prospectus.
The selling
shareholder may sell all or a portion of the shares of common stock beneficially owned by it and offered hereby from time to time
directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters
or broker-dealers, the selling shareholder will be responsible for underwriting discounts or commissions or agent’s commissions.
The shares of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of
the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions,
which may involve crosses or block transactions,
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on
any national securities
exchange or quotation
service on which
the securities
may be listed or
quoted at the time
of sale;
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·
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in
the over-the-counter
market;
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·
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in
transactions otherwise
than on these exchanges
or systems or in
the over-the-counter
market;
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·
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through
the writing of
options, whether
such options are
listed on an options
exchange or otherwise;
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·
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in
ordinary brokerage
transactions and
transactions in
which the broker-dealer
solicits purchasers;
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·
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through
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;
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·
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in
purchases by a
broker-dealer as
principal and resale
by the broker-dealer
for its account;
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on
an exchange distribution
in accordance with
the rules of the
applicable exchange;
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in
privately negotiated
transactions;
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in
sales pursuant
to Rule 144;
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·
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by
broker-dealers
that may agree
with the selling
shareholder to
sell a specified
number of such
shares at a stipulated
price per share;
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·
|
in
a combination of
any such methods
of sale; and
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·
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by
any other method
permitted pursuant
to applicable law.
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If the selling
shareholder effects such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents,
such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from
the selling shareholder or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom
they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents
may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of common stock
or otherwise, the selling shareholder may enter into hedging transactions with broker-dealers, which may in turn engage in short
sales of the shares of common stock in the course of hedging in positions they assume. The selling shareholder may also sell shares
of common stock short and deliver shares of common stock covered by this prospectus to close out short positions and to return
borrowed shares in connection with such short sales. The selling shareholder may also loan or pledge shares of common stock to
broker-dealers that in turn may sell such shares.
The selling
shareholder may pledge or grant a security interest in some or all of the warrants or shares of common stock owned by them and,
if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares
of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act, amending, if necessary, the list of selling shareholders to include the pledgee, transferee
or other successors in interest as selling shareholders under this prospectus. The selling shareholder also may transfer and donate
the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest
will be the selling shareholders for purposes of this prospectus.
The selling
shareholder and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be “underwriters”
within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer
may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares
of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of
shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents,
any discounts, commissions and other terms constituting compensation from the selling shareholder and any discounts, commissions
or concessions allowed or reallowed or paid to broker-dealers.
Under the
securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers
or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or
qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can
be no assurance that any selling shareholder will sell any or all of the shares of common stock registered pursuant to the registration
statement, of which this prospectus forms a part.
The selling
shareholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act,
and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the
timing of purchases and sales of any of the shares of common stock by the selling shareholder and any other participating person.
Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares
of common stock.
We will pay
all expenses of the registration of the shares of common stock, including, without limitation, Securities and Exchange Commission
filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that the selling
shareholder will pay all underwriting discounts and selling commissions, if any. We have agreed to indemnify the selling shareholder
against liabilities, including some liabilities under the Securities Act, in accordance with the registration rights agreement,
or the selling shareholder will be entitled to contribution. We may be indemnified by the selling shareholder against civil liabilities,
including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling shareholder
specifically for use in this prospectus, in accordance with the registration rights agreement, or we may be entitled to contribution.
Once sold
under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in
the hands of persons other than our affiliates.
LEGAL
MATTERS
The legality
of the common stock offered by this prospectus has been passed upon by Graubard Miller, New York, New York.
EXPERTS
The financial
statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the fiscal year ended July 28, 2012
have been so incorporated in reliance on the reports of Mayer Hoffman McCann CPAs (The New York Practice of Mayer Hoffman McCann
P.C.), 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, including those filed
after the date the registration statement of which this prospectus forms a part was originally filed and prior to the effectiveness
of such registration statement, until all of the securities are sold:
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our
Annual Report
on Form 10-K
for the fiscal
year ended
July 28,
2012;
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·
|
our
Current Report
on Form 8-K
dated October
26, 2012
and filed
with the
SEC on October
26, 2012;
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·
|
our
Preliminary
Proxy Statement
on Schedule
14A filed
with the
SEC on November
16, 2012;
and
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·
|
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, 6255 Sunset Boulevard, Hollywood, California 90028, (323) 466-5151.
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
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|
$
|
1,269.55
|
|
Legal fees and expenses
|
|
|
3,000.00
|
|
Accounting fees and expenses
|
|
|
1,000.00
|
|
Miscellaneous expenses
|
|
|
730.45
|
|
Total
|
|
$
|
6,000.00
|
|
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.
ITEM 16. EXHIBITS
A list of
exhibits filed herewith is contained in the exhibit index that immediately precedes such exhibits and is incorporated herein by
reference.
ITEM 17. UNDERTAKINGS
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 Hollywood, California on November 19, 2012.
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FREDERICK’S OF HOLLYWOOD GROUP INC.
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By:
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/s/ Thomas Rende
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Name: Thomas Rende
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Title: Chief Financial Officer
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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.
Signatures
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Title
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Date
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By:
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*
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Chairman of the Board and Chief Executive Officer
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November 19, 2012
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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 19, 2012
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Thomas Rende
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and Principal Accounting Officer)
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By:
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*
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Director
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November 19, 2012
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Peter Cole
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By:
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*
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Director
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November 19, 2012
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John Eisel
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By:
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*
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Director
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November 19, 2012
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William F. Harley
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By:
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*
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Director
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November 19, 2012
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Milton J. Walters
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*By:
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/s/ Thomas Rende
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Thomas Rende,
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as Attorney in Fact
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EXHIBIT INDEX
Exhibit Number
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Description
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3.1
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Certificate of Amendment to the Company’s Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 of the Issuer’s Form 8-K filed on May 29, 2012).
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5.1
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Opinion of Graubard Miller.**
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10.1
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Series A Preferred Stock Purchase Agreement (incorporated by reference to Exhibit 10.1 of
the Issuer’s Form 8-K filed on May 29, 2012).
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10.2
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Form of Warrant (incorporated by reference to Exhibit 10.2 of the Issuer’s Form 8-K
filed on May 29, 2012).
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23.1
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Consent of Mayer Hoffman McCann CPAs (The New York Practice of Mayer Hoffman McCann P.C.).*
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23.2
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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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Grafico Azioni Fredericks of Hollywood Grp. (AMEX:FOH)
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Da Mag 2024 a Giu 2024
Grafico Azioni Fredericks of Hollywood Grp. (AMEX:FOH)
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Da Giu 2023 a Giu 2024