Troubled NexCen Brands Inc. said its executive vice president, treasurer, and CFO, Kenneth J. Hall, would replace CEO Robert W. D’Loren, who resigned. The news sent the stock surging — by 40 percent, to $0.49 — on Monday, the first day shares traded after the personnel moves were announced.
NexCen announced on Friday that it had completed a restructuring of its bank credit facility by entering into amended and restated borrowing, security and related agreements with BTMU Capital Corp. NexCen is best known as a manager and franchiser of global brands, including Bill Blass, The Athlete’s Foot, Shoebox New York, Pretzel Time and Great American Cookies.
The amended and restated agreements replace all of the prior bank credit agreements and significantly revise the terms of the outstanding borrowings, which total $175.7 million.
Hall became CFO back in late March. Prior to joining NexCen he most recently had served as CFO and treasurer of Seevast Corp., an online-media holding company comprised of ad networks Pulse 360 and Kanoodle, along with other operations, according to NexCen.
“We are pleased to have Ken take on the role of CEO. Ken has been instrumental in completing the restructuring of the company’s financing arrangements,” said NexCen Chairman David S. Oros. The company said it will launch a formal search for a new finance chief.
The company said the amended and restated facility reduces the borrower subsidiaries’ mandatory principal payment obligations, enhances the company’s operating liquidity by increasing management fees to cover certain operating expenses before paying debt service, increases the borrower subsidiaries’ interest obligations, substantially tightens the covenants and events of default and adds economic incentives for the borrower subsidiaries to repay or refinance a significant portion of the debt prior to maturity. No additional borrowings are permitted and the facility remains secured by substantially all of the assets of the borrower subsidiaries, it added.
“We are very pleased to have completed the restructuring of this bank credit facility with BTMUCC and are gratified by the ongoing support of our lender,” said Hall.
The personnel change and debt restructuring could go a long way toward retaining the company’s Nasdaq listing, which was put in jeopardy when the shares dropped below $1. In early July the exchange gave the company 180 calendar days, or until Jan. 5, to regain compliance with this minimum requirement and have its common close at $1 or higher for a minimum of 10 consecutive business days.
Back in May, NexCen announced that it would delay the filing of its March 31 quarterly, and would amend its 2007 annual report, after Hall — newly appointed at the time — began reviewing its prior public filings, including the terms of the January 2008 amendments to its bank credit facility at the time of the acquisition of the Great American Cookie business.
The amendments allowed NexCen to borrow an additional $70 million to finance a portion of the acquisition purchase price and included an accelerated-redemption feature applicable to $35 million of the $70 million. The company, however, conceded that disclosures regarding the accelerated-redemption feature of its bank credit facility, as well as other changes that reduced the amount of cash available to the company for general use, were not contained in the company’s 2007 Annual Report.
As a result, it warned that “there is substantial doubt about its ability to continue as a going concern,” and that this substantial doubt also may have existed at the time the company filed its 2007 10-K. The Securities and Exchange Commission Division of Enforcement subsequently launched an informal investigation, and the company said Friday that it continues to fully cooperate with the SEC division.
In late July, an independent investigation of the events and circumstances surrounding the company’s previous disclosures concerning the bank credit facility with BTMU Capital found that certain members of senior management failed to advise the board of directors of material changes in the terms of the financing of the Great American Cookies acquisition after the board had approved terms previously presented to it and made serious errors with respect to public disclosures regarding the terms of the financing and their impact on the company’s financial condition that were contained in regulatory filings.
However, the report stressed that it did not find evidence that led it to conclude that there was an intentional effort to keep information concerning the terms of the financing from the board, the auditors or the public.
The company is also a target of shareholder lawsuits. On complaint, filed by the Rosen law firm, asserts that NexCen and certain of its officers and directors failed to adequately disclose details of an accelerated-redemption feature on financing it obtained in connection with its acquisition of Great American Cookies, which required the company to pay half of its borrowing by a certain date. It also alleges that the company was unable to comply with the accelerated-redemption; that the company had no reasonable basis for its earnings guidance for fiscal 2008; and, the company’s ability to continue as a going concern was in serious doubt.