As filed with the Securities and Exchange Commission on June 2, 2017
 
Registration No. 333-217216

 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 
Amendment No. 1
to
FORM S-3
 
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 
EVINE Live Inc.
(Exact name of registrant as specified in its charter)

 
    Minnesota	41-1673770	
(State or other jurisdiction of
incorporation or organization)	(I.R.S. Employer
Identification Number)	
 
6740 Shady Oak Road
Eden Prairie, MN 55344-3433
(952)943-6000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
 
Andrea M. Fike
Senior Vice President and General Counsel
EVINE Live Inc.
6740 Shady Oak Road
Eden Prairie, MN 55344-3433

(Address, including zip code, and telephone number, including area code, of agent for service)

Copies to :
 
J.C. Anderson, Esq.
Gray, Plant, Mooty, Mooty & Bennett, P.A.
500 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
(612) 632-3002
 
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 on 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. (Check one):
 
Large accelerated filer ¨	Accelerated filer x	Non-accelerated filer ¨	Smaller reporting company ¨	
 	 	(Do not check if a smaller reporting company)	 	
 
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 the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
 
Emerging growth company o
 
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 standard provided pursuant to Section 13(a) of the Exchange Act. o

 

EXPLANATORY NOTE
 
This Amendment No. 1 to the Registration Statement on Form S-3 filed on April 7, 2017 (File No. 333-217216) is solely made to file an updated auditor's consent in exhibit 23.2. Otherwise, no changes have been made to Part I or Part II of the Registration Statement. Accordingly, Part I of the Registration Statement has been omitted.
 
PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
Item 14. Other Expenses of Issuance and Distribution
 
The following table sets forth the various expenses to be incurred in connection with the sale and distribution of the securities being registered hereby, all of which will be borne by the Company (except any underwriting discounts and commissions and expenses incurred by the selling shareholders for brokerage or legal services or any other expenses incurred by the selling stockholders in disposing of the shares). All amounts shown are estimates except the SEC registration fee.

SEC registration fee	 	$	122.45	 	
Legal fees and expenses	 	$	10,000	 	
Accounting fees and expenses	 	$	5,000	 	
Miscellaneous	 	$	1,000	 	
Total	 	$	16,122.45	 	

Item 15. Indemnification of Directors and Officers
 
We are subject to the Minnesota Business Corporation Act (the “MBCA”). Section 302A.521 of the MBCA provides that we shall indemnify a person made or threatened to be made a party to a proceeding by reason of the former or present official capacity of such person against judgments, penalties, fines, including, without limitation, excise taxes assessed against such person with respect to any employee benefit plan, settlements and reasonable expenses, including attorneys’ fees and disbursements, incurred by such person in connection with the proceeding, if, with respect to the acts or omissions of such person complained of in the proceeding, such person:
 
	·	has not been indemnified by another organization or employee benefit plan for the same judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions;	
 
	·	acted in good faith;	
 
	·	received no improper personal benefit and Section 302A.255 of the MBCA, if applicable, has been satisfied;	
 
	·	in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and	

 

	·	in the case of acts or omissions occurring in such person’s performance in an official capacity, such person must have acted in a manner such person reasonably believed was in our best interests, or, in certain limited circumstances, not opposed to our best interests.	
 
In addition, Section 302A.521, subdivision 3 requires payment by the registrant, upon written request, of reasonable expenses in advance of final disposition in certain instances. A decision as to required indemnification is made by a majority of the disinterested board of directors present at a meeting at which a disinterested quorum is present, or by a designated committee of disinterested directors, by special legal counsel, by the disinterested shareholders, or by a court.
 
Our bylaws provide that we will indemnify any of our officers, directors, employees, and agents to the fullest extent permitted by Minnesota law and we have indemnification agreements with our directors and officers.
 
We have a director and officer liability insurance policy to cover us, our directors and our officers against certain liabilities.
 
Item 16. Exhibits
 
(a) Exhibits
 
A list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
 
Item 17. Undertakings
 
(a) The undersigned registrant hereby undertakes:
 
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
 
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement ; and
 
(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) above do not apply if 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 a part of the registration statement.
 
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
 
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
 
(i) 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
 
(ii) 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 of 1933 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.
 
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. 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, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Eden Prairie, Minnesota, on the 2nd day of June, 2017.
 
 	EVINE Live Inc.	
 	 	 	
 	By:	/s/ Robert Rosenblatt	
 	 	Robert Rosenblatt	
 	 	Chief Executive Officer
(Principal Executive Officer)	
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
 
SIGNATURE	 	TITLE	 	DATE	
 	 	 	 	 	
/s/ Robert Rosenblatt	 	Chief Executive Officer and Director	 	June 2, 2017	
Robert Rosenblatt	 	(Principal Executive Officer)	 	 	
 	 	 	 	 	
*	 	Executive Vice President and Chief Financial Officer	 	June 2, 2017	
Timothy Peterman	 	(Principal Financial Officer)	 	 	
 	 	 	 	 	
*	 	Chairman of the Board	 	June 2, 2017	
Landel C. Hobbs	 	 	 	 	
 	 	 	 	 	
*	 	Director	 	________	
Scott Arnold	 	 	 	 	
 	 	 	 	 	
*	 	Director	 	June 2, 2017	
Thomas Beers	 	 	 		
 	 	 	 	 	
*	 	Director	 	June 2, 2017	
Neal Grabell	 	 	 	 	
 	 	 	 	 	
*	 	Director	 	June 2, 2017	
Mark Holdsworth	 	 	 	 	
 	 	 	 	 	
*	 	Director	 	June 2, 2017	
Lisa Letizio	 	 	 	 	
 	 	 	 	 	
*	 	Director	 	June 2, 2017	
Lowell Robinson	 	 	 	 	
 	 	 	 	 	
*	 	Director	 	June 2, 2017	
Fred Siegel	 	 	 	 	
 
* The undersigned does hereby sign this Amendment No. 1 to the Registration Statement on behalf of each of the above indicated directors and officers of Evine Live, Inc. pursuant to a power of attorney executed by such director and officer.

 	 	 	 	 	 	
By:	/s/ Robert Rosenblatt	 	 	 	 	
 	Robert Rosenblatt, Attorney in Fact	 	 	 	 	

 

EXHIBIT INDEX
 
Exhibit
Number	 	Description	
 	 	 	
4.1	 	Amended and Restated Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on November 18, 2014).	
 	 	 	
4.2	 	Amended and Restated By-Laws, as amended through June 18, 2014 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 20, 2014).	
 	 	 	
4.3	 	Shareholder Rights Plan, dated July 13, 2015, between the Company and Wells Fargo Bank, N.A. (incorporated by reference to Appendix A to the Company’s Proxy Statement filed on May 13, 2015).	
 	 	 	
4.4	 	Form of Securities Purchase Agreement, including Form of Warrant and Form of Option, dated as of September 14, 2016, by and between EVINE Live Inc. and the purchasers referenced therein (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on September 15, 2016).	
 	 	 	
4.5	 	Form of Securities Purchase Agreement Amendments (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on December 16, 2016).	
 	 	 	
4.6	 	Form of Amendment to Option (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on November 4, 2016).	
 	 	 	
4.7	 	First Amended and Restated Option, dated March 16, 2017, between the Company and TH Media Partners, LLC (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed with the SEC on March 21, 2017).	
 	 	 	
4.8	 	Form of Specimen Certificate Representing Common Stock (incorporated by reference to Exhibit 4.9 on the Company’s Current Report on Form 8-K, filed with the SEC on June 9, 2010).	
 	 	
5.1	 	Opinion of Gray, Plant, Mooty, Mooty & Bennett, P.A. (previously filed)	
 	 	
23.1	 	Consent of Gray, Plant, Mooty, Mooty & Bennett, P.A. (previously filed).	
 	 	
23.2	 	Consent of Deloitte & Touche LLP, independent registered public accounting firm (filed herewith).	
 	 	
24.1	 	Powers of Attorney (previously filed).	

 

Exhibit 23.2
 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
We consent to the incorporation by reference in this Amendment No. 1 to Registration Statement No. 333-217216 on Form S - 3 of our reports dated March 29, 2017, relating to the consolidated financial statements and consolidated financial statement schedule of EVINE Live Inc. and its subsidiaries (the “Company”) and the effectiveness of the Company’ s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended January 28, 2017, and to the reference to us under the heading "Experts" in the Prospectus, which is part of such Registration Statement.

/s/ DELOITTE & TOUCHE LLP
 
Minneapolis, MN
June 2, 2017