As
Filed with Securities and Exchange Commission on September 8, 2022
Registration
No. 333-266486
SECURITIES AND EXCHANGE
COMMISSION
AMENDMENT
NO. 2 TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIGITAL
BRANDS GROUP, INC.
(Exact name of registrant
as specified in its charter)
Delaware
(State
or other jurisdiction
of incorporation or organization) |
5699
(Primary
Standard Industrial
Classification Code Number) |
46-1942864
(I.R.S.
Employer
Identification Number) |
1400
Lavaca Street
Austin, TX 78701
(209) 651-0172
(Address, including zip
code, and telephone number, including area code, of registrant’s principal executive offices)
John
Hilburn Davis IV
President and Chief Executive Officer
1400 Lavaca Street
Austin, TX 78701
(209) 651-0172
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
Copies
to:
Thomas
J. Poletti, Esq
Veronica Lah, Esq
Manatt, Phelps & Phillips, LLP
695 Town Center Drive, 14th Floor
Costa Mesa, CA 92646
(714) 312-7500
Approximate
date of commencement of proposed sale to the public: From time to time after this registration statement is declared effective.
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, a smaller reporting
company or an emerging growth 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 x
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Smaller reporting company x
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Emerging growth company x
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If an
emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
Digital
Brands Group, Inc. is hereby filing this Amendment No. 2 to the Registration Statement on Form S-3 (Registration No. 333-266486), originally
filed on August 3, 2022 (as amended, the “Registration Statement”), as an exhibits-only filing to file updated independent
account consents as Exhibits 23.1, 23.2, 23.3, 23.4 and 23.5. Accordingly, this Amendment No. 2 consists only of the facing page,
this explanatory note, Item 16 of Part II of the Registration Statement, the signature page to the Registration Statement,
and the updated independent account consents as Exhibits 23.1, 23.2, 23.3, 23.4 and 23.5. The prospectus and the rest of Part II
of the Registration Statement are unchanged and have been omitted.
Exhibits
Exhibit
Number |
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Description
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| 1.1* |
|
Form of Underwriting
Agreement |
| 2.1 |
|
Membership
Interest Purchase Agreement dated October 14, 2020 among D. Jones Tailored Collection,
LTD and Digital Brands Group (formerly known as Denim.LA, Inc.) (incorporated by reference to Exhibit 2.1 of Digital Brands Group
Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 2.2 |
|
First
Amendment to Membership Interest Purchase Agreement dated December 31, 2020 among D. Jones
Tailored Collection, LTD and Digital Brands Group (formerly known as Denim.LA, Inc) (incorporated by reference to Exhibit 2.2 of
Digital Brands Group Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 2.3 |
|
Agreement
and Plan of Merger with Bailey 44, LLC dated February 12, 2020 among Bailey 44, LLC, Norwest Venture Partners XI, and Norwest
Venture Partners XII, LP and Digital Brands Group (formerly known as Denim.LA, Inc) (incorporated by reference to Exhibit 2.3
of Digital Brands Group Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6,
2022). |
| 2.4 |
|
Second
Amendment to Membership Interest Purchase Agreement Dated May 10, 2021 among D. Jones Tailored Collection, LTD and
Digital Brands Group (formerly known as Denim. LA, Inc.) (incorporated by reference to Exhibit 2.4 of Digital Brands Group Inc.’s
Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 2.5 |
|
Membership
Interest Purchase Agreement, dated August 30, 2021, by and between Moise Emquies and Digital Brands Group, Inc. (incorporated
by reference to Exhibit 2.5 of Digital Brands Group Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865),
filed with the SEC on January 6, 2022). |
| 2.6 |
|
Membership
Interest Purchase Agreement, dated January 18, 2022, by and among Moise Emquies, George Levy, Matthieu Leblan and Carol Ann
Emquies, Sunnyside, LLC, and George Levy as the Sellers’ representative (incorporated by reference to Exhibit 1.1 of Digital
Brands Group Inc.’s Form 8-K filed with the SEC on January 20, 2022). |
| 2.7 |
|
Amended
and Restated Membership Interest Purchase Agreement, dated June 17, 2022, by and among Digital
Brands Group, Inc. and Moise Emquies, George Levy, Matthieu Leblan and Carol Ann Emquies (incorporated by reference to Exhibit 2.1
of Digital Brands Group Inc.’s Form 8-K filed with the SEC on June 23, 2022). |
| 3.1 |
|
Sixth
Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.3 of Digital Brands
Group Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 3.2 |
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Amended
and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.5 of Digital Brands Group Inc.’s Registration
Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.1 |
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Form
of Common Stock Certificate (incorporated by reference to Exhibit 4.1 of Digital Brands Group
Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
Exhibit
Number |
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Description
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| 4.2 |
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Warrant
Agency Agreement, including Form of Warrant Certificate (incorporated by reference to Exhibit 10.1
of Digital Brands Group Inc.’s Form 8-K filed with the SEC on May 18, 2021). |
| 4.3 |
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Representative’s
Warrant Agreement (incorporated by reference to Exhibit 4.1 of Digital Brands Group Inc.’s Form 8-K filed with the SEC
on May 18, 2021). |
| 4.4 |
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Form
of Lender’s Warrants (incorporated by reference to Exhibit 4.4 of Digital Brands Group Inc.’s
Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.5* |
|
Form of Preferred Stock
Warrant (including Warrant Certificate) |
| 4.6* |
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Form of Warrant Agreement
(including Warrant Certificate) |
| 4.7* |
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Form of Units Warrant Agreement
(including Warrant Certificate) |
| 4.8* |
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Form of Debt Securities
Warrant Agreement (including Warrant Certificate) |
| 4.9 |
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Form
of Series Seed Preferred Stock Purchase Agreement (incorporated by reference to Exhibit 4.5 of Digital Brands Group Inc.’s
Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.10 |
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Form
of Series A Preferred Stock Subscription Agreement (incorporated by reference to Exhibit 4.6 of Digital Brands Group Inc.’s
Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.11 |
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Form
of Series A-2 Preferred Stock Subscription Agreement (incorporated by reference to Exhibit 4.7 of Digital Brands Group
Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.12 |
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Form
of Series A-3 Preferred Stock Subscription Agreement (incorporated by reference to Exhibit 4.8 of Digital Brands Group
Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.13 |
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Form
of Series CF Preferred Stock Purchase Agreement (incorporated by reference to Exhibit 4.9 of
Digital Brands Group Inc.’s Registration Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.14* |
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Form of Preferred Stock
Certificate |
| 4.15 |
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Form
of 2019 Regulation D Convertible Note (incorporated by reference to Exhibit 4.10 of Digital Brands Group Inc.’s Registration
Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.16 |
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Form
of 2020 Regulation D Convertible Note (incorporated by reference to Exhibit 4.11 of Digital Brands Group Inc.’s Registration
Statement on Form S-1/A (Reg. No. 333-261865), filed with the SEC on January 6, 2022). |
| 4.17+ |
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Form
of Debt Indenture |
| 4.18* |
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Form of supplemental indenture or other instrument
establishing the issuance of one or more series of debt securities (including the form of such debt security). |
| 4.19* |
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Form of Unit Agreement
and Unit Certificate. |
| 4.20 |
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Registration
Rights Agreement, dated April 8, 2022, by and among Digital Brands Group, Inc. and certain Investors (incorporated by reference
to Exhibit 4.1 of Digital Brands Group Inc.’s Form 8-K filed with the SEC on April 12, 2022). |
| 4.21 |
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Underwriter’s
Warrants issued to Alexander Capital L.P. on May 5, 2022 (incorporated by reference to Exhibit 4.1 of Digital Brands Group
Inc.’s Form 8-K filed with the SEC on May 10, 2022) |
| 4.22 |
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Underwriter’s
Warrants issued to Revere Securities, LLC (incorporated by reference to Exhibit 4.2 of Digital
Brands Group Inc.’s Form 8-K filed with the SEC on May 10, 2022) |
| 4.23 |
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Registration
Rights Agreement, dated July 22, 2022, by and among Digital Brands Group, Inc. and certain Investors (incorporated by reference
to Exhibit 4.1 of Digital Brands Group Inc.’s Form 8-K filed with the SEC on July 27, 2022). |
| 4.24* |
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Form of Rights Agreement
(including Form of Rights Certificate) |
*
To be filed, if necessary, by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference
in this registration statement, including a Current Report on Form 8-K.
** To be filed in accordance
with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the applicable rules thereunder.
+
Previously filed.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the registrant has duly caused this Amendment No. 2 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Austin, State of Texas, on this 8th day of September, 2022.
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DIGITAL BRANDS GROUP, INC. |
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By: |
/s/ John Hilburn Davis IV |
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John Hilburn Davis IV |
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Chief Executive Officer |
Pursuant to the requirements of the
Securities Act of 1933, this Amendment No. 2 to Registration Statement has been signed by the following persons in the capacities and
on the dates indicated:
| Signature
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Title
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Date
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/s/ John Hilburn Davis IV
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Chairman
and Chief Executive Officer |
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September 8,
2022 |
| John Hilburn Davis IV |
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(Principal Executive Officer) |
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/s/ Reid Yeoman
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Chief
Financial Officer |
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September 8,
2022 |
| Reid Yeoman |
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(Principal Accounting and Financial Officer) |
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Director
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September 8,
2022 |
| Mark T. Lynn |
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Director
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September 8,
2022 |
| Trevor Pettennude |
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*
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Director
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September 8,
2022 |
| Jameeka Aaron Green |
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*
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Director
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September 8,
2022 |
| Huong “Lucy” Doan |
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*/s/
John Hilburn Davis IV
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| John
Hilburn Davis IV |
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| Attorne-n-fact |
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