As filed with the Securities and Exchange Commission on July 16, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
ZANY BRAINY, INC.
(Exact name of company as specified in its charter)
Pennsylvania 23-2663337
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2520 Renaissance Boulevard
King of Prussia, Pennsylvania 19406
(Address of principal executive offices) (Zip Code)
1993 Stock Incentive Plan
Amended and Restated 1998 Equity Compensation Plan
Rosa Aukburg Stock Option Agreement
Nick Egelanian Non-Qualified Stock Option Agreement
(Full title of the plans)
Keith C. Spurgeon
Chief Executive Officer
Zany Brainy, Inc.
2520 Renaissance Boulevard
King of Prussia, Pennsylvania 19406
(Name and address of agent for service)
(610) 278-7800
(Telephone number, including area code, of agent for service)
___________________
Copy of all communications to:
Alan Singer
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103-2921
(215) 963-5000
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price aggregate registration fee
per share offering price
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 2,063,600 (4) $9.75 (2) $20,120,100 (2)
par value ---------------------------------------------------------------------------------- $ 10,761
3,361,607 (4) $5.53 (3) $18,589,687 (3)
===============================================================================================================================
(1) Includes 2,400,207 shares issuable pursuant to the 1993 Stock Incentive
Plan, 3,000,000 shares issuable pursuant to the Amended and Restated 1998
Equity Compensation Plan, 5,000 shares issuable pursuant to the Rosa
Aukburg Stock Option Agreement dated May 15, 1992 and 20,000 shares
issuable pursuant to the Nick Egelanian Non-Qualified Stock Option
Agreement dated August 7, 1995.
(2) Estimated pursuant to Paragraphs (c) and (h) of Rule 457 under the
Securities Act, solely for the purpose of calculating the registration fee,
based upon the average of the high and low sales prices of shares of the
Company's Common Stock on July 13, 1999, as reported on the Nasdaq National
Market.
(3) Calculated pursuant to paragraph (h)(1) of Rule 457, based on the actual
per share exercise prices of stock options awarded.
(4) Pursuant to Rule 416 under the Securities Act of 1933, as amended
(the"Securities Act"), this Registration Statement also covers such
additional shares as may hereinafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends, recapitalizations or
certain other capital adjustments.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENTS
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the U.S. Securities and Exchange
Commission (the "Commission") by Zany Brainy, Inc. (the "Registrant") are
incorporated by reference in this Form S-8 Registration Statement (the
"Registration Statement") and made a part hereof:
1. The Registrant's prospectus dated June 2, 1999 filed pursuant to
Rule 424(b) as part of the Registrant's registration statement on Form S-1
(Registration No. 333-74719); and
2. The description of the Registrant's Common Stock, par value $.01
per share, set forth in the Registrant's registration statement on Form 8-A
filed with the Commission on May 24, 1999 to register such securities under the
Securities Exchange Act of 1934 (the "Exchange Act").
All documents and reports filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents or reports. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified shall not be deemed to
constitute a part of the Registration Statement except as so modified and any
statement so superseded shall not be deemed to constitute a part of this
Registration Statement.
Independent Public Accountants
- ------------------------------
The consolidated financial statements of the Registrant as of January
31, 1998 and January 30, 1999, and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the three years in
the period ended January 30, 1999, incorporated by reference in this
Registration Statement from the Registrant's registration Statement on Form S-1
(Registration No. 333-74719), together with all amendments thereto, have been
audited by Arthur Andersen LLP, independent certified public accountants,
as indicated in their report with respect thereto, and are incorporated herein
in reliance upon the authority of said firm as experts in giving said report.
Future financial statements of the Company and the reports thereon of Arthur
Andersen LLP also will be incorporated by reference in this registration
statement in reliance upon the authority of that firm as experts in giving those
reports to the extent said firm has audited those financial statements and
consented to the use of their reports thereon.
Item 4. Description of Securities.
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Not Applicable
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable
Item 6. Indemnification of Directors and Officers.
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Section 1741 of the Pennsylvania Business Corporation Law, as amended
(the "BCL"), provides the Registrant with the power to indemnify any officer or
director acting in his or her capacity as a representative of the Registrant who
was, is or is threatened to be made a party to any action or proceeding for
expenses, judgments, penalties, fines and amounts paid in settlement in
connection with such action or proceeding. The indemnity provisions apply
whether the action was instituted by a third party or arose by or in the right
of the Registrant. Generally, the only limitation on the Registrant's ability to
indemnify its officers and directors is if the act violates a criminal statute
or if the act or failure to act is finally determined by a court to have
constituted wilful misconduct or recklessness.
The Registrant's Amended and Restated Bylaws (the "Bylaws") provide a
right to indemnification to the full extent permitted by law for expenses,
attorney's fees, damages, punitive damages, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by any director or
officer whether or not the indemnified liability arises or arose from any
threatened, pending or completed proceeding by or in the right of the Registrant
by reason of the fact that such director or officer is or was serving as a
director, officer or employee of the Registrant or, at the Registrant's request,
as a director, officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust employee benefit plan or other enterprise,
unless the act or failure to act giving rise to the claim for indemnification is
finally determined by a court to have constituted willful misconduct or
recklessness. The Registrant's Bylaws provide for the advancement of expenses to
an indemnified party upon receipt of an undertaking by the party to repay those
amounts if it is finally determined that the indemnified party is not entitled
to indemnification.
The Registrant's Bylaws authorize the Registrant to take steps to
ensure that all persons entitled to the indemnification are properly
indemnified, including, if the Board of Directors of the Registrant so
determines, purchasing and maintaining insurance.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable
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Item 8. Exhibits.
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Exhibit Numbers Exhibit
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5 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Morgan, Lewis & Bockius LLP
(included as part of Exhibit 5)
24 Power of Attorney (included as part of the
signature page)
99.1 1993 Stock Incentive Plan, as amended
99.2 Amended and Restated 1998 Equity Compensation Plan
99.3 Rosa Aukburg Stock Option Agreement
99.4 Nick Egelanian Non-Qualified Stock Option
Agreement
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Item 9. Undertakings.
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(a) The undersigned 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; 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 subparagraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be included
in a post-effective amendment by those subparagraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference 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 that remain unsold at the
termination of the offering.
(b) 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 that is incorporated by reference in this 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.
(c) 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 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
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in King of Prussia, Pennsylvania on this 15th day of July, 1999.
ZANY BRAINY, INC.
By: /s/ Keith C. Spurgeon
----------------------
Name: Keith C. Spurgeon
Title: Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by or on behalf of the following persons in the
capacities and on the dates indicated.
Each person, in so signing, also makes, constitutes and appoints Keith C.
Spurgeon and Robert A. Helpert, and each such officer acting singly, his true
and lawful attorney-in-fact, in his name, place and stead to execute and cause
to be filed with the Securities and Exchange Commission any or all amendments to
this Registration Statement, with all exhibits and any and all documents
required to be filed with respect thereto, and to do and perform each and every
act and thing necessary to effectuate the same.
Name Title Date
- ---- ----- ----
/s/ Keith C. Spurgeon Chairman of the Board and July 15, 1999
- ------------------------
Keith C. Spurgeon Chief Executive Officer
/s/ Robert A. Helpert Chief Financial Officer July 15, 1999
- ------------------------ (principal financial and
Robert A. Helpert accounting officer)
/s/ C. Donald Dorsey
- ------------------------
C. Donald Dorsey Director July 15, 1999
/s/ Robert A. Fox
- ------------------------
Robert A. Fox Director July 15, 1999
/s/ Gerald R. Gallagher
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Gerald R. Gallagher Director July 15, 1999
/s/ Henry Nasella
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Henry Nasella Director July 15, 1999
/s/ Yves B. Sisteron
- ------------------------
Yves B. Sisteron Director July 15, 1999
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/s/ David V. Wachs
- ------------------
David V. Wachs Director July 15, 1999
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INDEX TO EXHIBITS
Exhibit Numbers Exhibit
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5 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (included as part of
Exhibit 5)
24 Power of Attorney (included as part of the signature page)
99.1 1993 Stock Incentive Plan, as amended
99.2 Amended and Restated 1998 Equity Compensation Plan
99.3 Rosa Aukburg Stock Option Agreement
99.4 Nick Egelanian Non-Qualified Stock Option Agreement