Alliance Entertainment Holding Corp S-1/A, filed Jun 22, 2023
Alliance Entertainment Holding Corp (AENT)
As filed with the Securities and Exchange Commission on June 22, 2023
Registration No. 333-271219
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 4
to
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ALLIANCE
ENTERTAINMENT HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 5199 | 85-2373325 |
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
8201 Peters Road
Suite 1000
Plantation, Florida
(954) 255-4000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Jeffrey Walker
Chief Executive Officer
8201 Peters Road
Suite 1000
Plantation, Florida
(954) 255-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Brad L. Shiffman Kathleen A. Cunningham Blank Rome LLP 1271 Avenue of the America New York, New York 10020 Tel: (212) 885-5000 |
Mitchell S. Nussbaum Norwood P. Beveridge Loeb & Loeb LLP 345 Park Avenue New York, New York 10154 Tel: (212) 407-4000 |
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, 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 post-effective amendment filed pursuant to Rule 462(d) 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. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ |
| Non-accelerated | x | Smaller reporting company | x |
| | | Emerging growth company | x |
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 the 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 this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses to be borne by the registrant in connection with the issuance and distribution of the shares of common stock being registered hereby.
| Expense | Estimated Amount | |||
| Securities and Exchange Commission registration fee | $ | 26,400 | ||
| FINRA fee | $ | 42,906 | ||
| Accounting fees and expenses | $ | 400,000 | ||
| Legal fees and expenses | $ | 250,000 | ||
| Representative’s non-accountable expense allowance | $ | 50,000 | ||
| Financial printing and miscellaneous expenses | $ | 285,694 | ||
| Total | $ | 1,055,000 | ||
Item 14. Indemnification of Officers and Directors
The Certificate of Incorporation contains provisions limiting the liability of directors, and our Bylaws provide that we will indemnify each of our directors to the fullest extent permitted under Delaware law. The Certificate of Incorporation and our Bylaws also provide us with discretion to indemnify officers and employees when determined appropriate by the Board.
We intend to enter into indemnification agreements with each of our directors and executive officers and certain other key personnel. The indemnification agreements provide that we indemnify each of our directors, executive officers and such other key personnel against any and all expenses incurred by that director, executive officer or other key personnel because of his or her status as one of our directors, executive officers or other key personnel, to the fullest extent permitted by Delaware law, the Certificate of Incorporation and our Bylaws. In addition, the indemnification agreements provide that, to the fullest extent permitted by Delaware law, we will advance all expenses incurred by our directors, executive officers, and other key personnel in connection with a legal proceeding involving his or her status as a director, executive officer or key personnel.
Item 15. Recent Sales of Unregistered Securities.
Initial Stockholder Shares
In August 2020, the Sponsors purchased 2,875,000 Initial Stockholder Shares for an aggregate offering price of $25,000, or approximately $0.009 per share. Such securities were issued in connection with our organization pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act. Prior to the IPO, the Sponsor transferred 50,000 Initial Stockholder Shares to the underwriter for the IPO and certain of its to the underwriter’s affiliates and in connection with the closing of the Business Combination, the Sponsors forfeited 1,375,000 Initial Stockholder Shares. At the closing of the Business Combination, each of the remaining 1,500,000 Initial Stockholder Shares converted into one share of Class A common stock. The issuance of Class A common stock upon automatic conversion of the Initial Stockholder Shares at the closing of the Business Combination has not been registered under the Securities Act in reliance on the exemption from registration provided by Section 3(a)(9) of the Securities Act.
Private Warrants
Simultaneously with the consummation of the IPO, the Sponsor purchased from Adara an aggregate of 4,120,000 Private Warrants at a price of $1.50 per Private Warrant (for a purchase price of $4,120,000). Each Private Warrant entitles the holder thereof to purchase one share of our Class A common stock at an exercise price of $11.50 per share. The sales of the Private Warrants were made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.
II-1
Underwriter Warrants
In connection with the closing of the IPO, Adara issued warrants to purchase 50,000 shares of Class A common stock to the underwriter of its IPO and certain affiliates of the underwriter. Each such warrant entitles the holder to purchase one share of Class A common stock at a price of $11.50 per share, subject to adjustment. These warrants are non-redeemable and exercisable on a cashless basis. The sales of the Private Warrants were made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.
II-2
II-3
II-4
| | | | | Incorporated by Reference | ||||||
| Exhibit Number |
| Description of Document | | Schedule/ Form |
| File Number | | Exhibits | | Filing Date |
| 10.21* | | Contingent Consideration Escrow Agreement by and among the Combined Company, Bruce Ogilvie and Continental Stock Transfer and Trust Company dated February 10, 2023. | | Form 8-K | | 001-40014 | | 10.29 | | February 13, 2023 |
| 10.22 | | Amendment Number Twelve to Loan and Security Agreement and Waiver, dated as of April 21, 2023, by and among AENT Corporation, Project Panther Acquisition Corporation, AEC Direct, LLC, Alliance Entertainment, LLC, Directtou, LLC, Mecca Electronics Industries, Inc., Mill Creek Entertainment, LLC, and COKeM International, Ltd., as Borrowers, and Bank of America, N.A., as Agent. | | Form 8-K | | 001-40014 | | 10.1 | | April 27, 2023 |
| 14 | | Code of Ethics for Alliance Entertainment Holding Corporation. | | Form 8-K | | 001-40014 | | 14 | | February 13, 2023 |
| 23.1** | | Consent of BDO USA, LLP. | | | | | | | | |
| 23.2*** | | Consent of Blank Rome LLP (included in Exhibit 5.1). | | | | | | | | |
| 101.INS** | | XBRL Instance Document. | | | | | | | | |
| 101.CAL** | | XBRL Taxonomy Extension Calculation Linkbase Documents. | | | | | | | | |
| 101.SCH** | | XBRL Taxonomy Extension Schema Document. | | | | | | | | |
| 101.DEF** | | XBRL Taxonomy Extension Definition Linkbase Document. | | | | | | | | |
| 101.LAB** | | XBRL Taxonomy Extension Label Linkbase Document. | | | | | | | | |
| 101.PRE** | | XBRL Taxonomy Extension Presentation Linkbase Document. | | | | | | | | |
| 107.1+** | | Filing Fee Table. | | Form S-1 | | 333-271219 | | 107.1 | | April 12, 2023 |
| * | Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Company agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request. |
| ** | Previously filed. |
| *** | Filed herewith. |
| + | Calculation of Filing Fee Tables. The information as to each type of and class of securities being registered under this registration statement in the manner required by Item 601(b)(107) of Regulation S-K is set forth in Exhibit 107.1 to this registration statement, which is incorporated herein by reference. |
| † | Indicates a management contract or compensatory plan, contract or arrangement. |
II-5
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 of 1933, as amended; |
| 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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. |
| (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. |
| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned 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 undersigned 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 undersigned 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 undersigned 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 undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| iv. | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
II-6
Insofar as indemnification for liabilities arising under the Securities 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 SEC 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.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Amendment No. 4 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Plantation, in the state of Florida, on the 22nd day of June, 2023.
| ALLIANCE ENTERTAINMENT HOLDING CORPORATION | ||
| By: | /s/ Jeffrey Walker | |
| Jeffrey Walker | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 4 to Registration Statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Name | Title | Date | ||
| /s/ Bruce Ogilvie | Executive Chairman | June 22, 2023 | ||
| Bruce Ogilvie | ||||
| /s/ Jeffrey Walker | Chief Executive Officer and Director | June 22, 2023 | ||
| Jeffrey Walker | (Principal Executive Officer) | |||
| /s/ John Kutch | Chief Financial Officer and Director | June 22, 2023 | ||
| John Kutch | (Principal Financial Officer and Principal Accounting Officer) | |||
| * | Director | June 22, 2023 | ||
| W. Tom Donaldson III | ||||
| * | Director | June 22, 2023 | ||
| Thomas Finke | ||||
| * | Director | June 22, 2023 | ||
| Chris Nagelson | ||||
| * | Director | June 22, 2023 | ||
| Terilea J. Wielenga |
| * By: | /s/ John Kutch | June 22, 2023 | ||
| John Kutch, | ||||
| attorney-in-fact |
II-8
Exhibit 5.1
1271 Avenue of the Americas | New York, NY 10020
blankrome.com
| Phone: | (212) 885-5000 |
| Fax: | (212) 885-5001 |
June 22, 2023
Alliance Entertainment Holding Corporation
8201 Peters Road
Suite 1000
Plantation, Florida 33324
| Re: | Alliance Entertainment Holding Corporation Registration Statement on Form S-1 |
Dear Sir/Madam:
We refer to the Registration Statement (the “Registration Statement”), which is comprised of a Public Offering Prospectus and a Resale Prospectus, filed by Alliance Entertainment Holding Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), in connection with the sale of (A) up to $10,000,000 public offering price of shares (the “Public Sale Shares”) of Class A Common Stock, par value $0.0001 per share (“Common Stock”), pursuant to an underwriting agreement (the “Underwriting Agreement”) between the Company and ThinkEquity; (B) up to an aggregate of 9,920,000 shares of Common Stock (the “Warrant Shares”) that are issuable upon the exercise of (i) 5,750,000 publicly traded warrants (the “Public Warrants”), (ii) 4,120,000 private placement warrants issued in a private placement (the “Private Warrants”) and (iii) 50,000 warrants issued to the underwriter of the Company’s initial public offering and its designees (the “Underwriter’s Warrants”; and together with the Public Warrants, and Private Warrants, the “Warrants”), all such Warrants being exercisable at an exercise price of $11.50 per share; (C) up to 48,102,798 shares of Common Stock (the “Resale Shares”) to be resold from time to time upon the expiration of lock-up agreements by the selling stockholders named in the Resale Prospectus or their permitted transferees (the “Selling Stockholders”) and (D) up to 4,120,000 Private Warrants and 50,000 Underwriter Warrants to be resold from time to time by certain Selling Warrant Holders named in the Resale Prospectus.
In our capacity as counsel to the Company, we have examined the original or certified copies of such records of the Company and such agreements, certificates of public officials, certificates of officers or representatives of the Company and others, and such other documents as we deem relevant and necessary as a basis for the opinions hereinafter expressed. In such examination we have assumed the genuineness of all signatures on original documents and the conformity to original documents of all copies submitted to us as conformed or photostat copies. As to various questions of fact material to such opinions, we have relied upon statements or certificates of officials and representatives of the Company and others.
Alliance Entertainment Holding Corporation
June 22, 2023
Page 2
With regard to our opinions concerning the Private Warrants and Underwriter Warrants constituting valid and binding obligations of the Company:
| 1. | Our opinions are subject to, and may be limited by, (a) applicable bankruptcy, reorganization, insolvency, moratorium, conservatorship, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors’ rights generally, and (b) general principles of equity (including, without limitation, concepts of materiality, reasonableness, impossibility of performance, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law. |
| 2. | Our opinions are subject to the qualification that the availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the court before which the request is brought. |
| 3. | We express no opinion as to any provision of the Private Warrants or Underwriter Warrants that: (a) provides for liquidated damages, buy-in damages, monetary penalties, prepayment or make-whole payments or other economic remedies to the extent such provisions may constitute unlawful penalties, (b) relates to advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitations, trial by jury, or procedural rights, (c) restricts non-written modifications and waivers, (d) provides for the payment of legal and other professional fees where such payment is contrary to law or public policy, (e) relates to exclusivity, election or accumulation of rights or remedies, (f) authorizes or validates conclusive or discretionary determinations, or (g) provides that provisions of the Warrants are severable to the extent an essential part of the agreed exchange is determined to be invalid and unenforceable. |
| 4. | We express no opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or jurisdiction provided for in the Private Warrants and Underwriter Warrants. |
Based upon the foregoing, it is our opinion that:
| 1. | The Public Sale Shares, when such shares are sold, paid for and issued in accordance with the terms of the Underwriting Agreement and Registration Statement, will be duly and validly issued, fully paid and non-assessable. |
Alliance Entertainment Holding Corporation
June 22, 2023
Page 3
| 2. | The Warrant Shares have been duly authorized for issuance and, when issued and sold by the Company and delivered by the Company upon valid exercise thereof and against receipt of the exercise price therefor, in accordance with the terms of the Warrants, will be duly and validly issued, fully paid and non-assessable. |
| 3. | The Resale Shares are validly issued, fully paid and non-assessable. |
| 4. | The Private Warrants and Underwriter Warrants constitute the legal, valid and binding obligations of the Company. |
We are opining solely (i) on all applicable statutory provisions of Delaware corporate law, including the rules and regulations underlying those provisions, all applicable provisions of the Delaware Constitution and all applicable judicial and regulatory determinations. This opinion is limited to the laws of the State of Delaware, and (ii) and, as to the Private Warrants and Underwriter Warrants constituting valid and binding obligations of the Company, the applicable laws of the State of New York, in each case as in effect on the date hereof and we express no opinion with respect to the laws of any other jurisdiction. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. We also hereby consent to the use of our name as your counsel under “Legal Matters” in the Prospectus constituting part of the Registration Statement. In giving this consent, we do not thereby concede that we come within the categories of persons whose consent is required by the Act or the General Rules and Regulations promulgated thereunder.
| Very truly yours, | |
| /s/ Blank Rome LLP | |
| BLANK ROME LLP |