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As filed with the Securities and Exchange Commission on August 17, 2000
Registration No. 333-37612
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO FORM S-4 REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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)
Noodle Kidoodle, Inc. 1994 Stock Incentive Plan
(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:
Stephen M. Goodman
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103-2921
(215) 963-5000
================================================================================
This Post-Effective Amendment on Form S-8 to Form S-4 Registration Statement
relates to 1,037,715 of Common Stock, par value $.01 per share (the "Common
Stock"), of Zany Brainy, Inc. (the "Registrant"). Such shares are issuable to
the holders of outstanding options to purchase shares of Common Stock, par value
$.001 per share, of Noodle Kidoodle, Inc. ("Noodle"), which options were assumed
by the Registrant upon the effective time of the merger of a wholly-owned
subsidiary of the Registrant with and into Noodle on July 26, 2000.
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EXPLANATORY NOTE
Pursuant to an Amended and Restated Agreement and Plan of Merger, dated as
of April 21, 2000 (the "Merger Agreement"), among the Registrant, Noodle and
Night Owl Acquisition, Inc., a wholly-owned subsidiary of the Registrant, among
other things, (i) Night Owl Acquisition, Inc. merged with and into Noodle, with
Noodle continuing as the surviving corporation, (ii) each share of common stock,
par value $.001 per share of Noodle, issued and outstanding immediately prior to
the Effective Time (as defined in the Merger Agreement) was converted into the
right to receive 1.233 shares of Common Stock and (iii) at the Effective Time,
shares of Common Stock, rather than shares of Noodle Common Stock, became
issuable pursuant to the Noodle Kidoodle, Inc. 1994 Stock Incentive Plan.
The Registrant hereby amends its Registration Statement on Form S-4 (No.
333-37612), filed with the Securities and Exchange Commission on May 23, 2000,
as amended on June 21, 2000, by filing this Post-Effective Amendment No.1 on
Form S-8 (the "Post-Effective Amendment") relating to 1,037,715 shares of Common
Stock issuable upon the exercise of options to purchase common stock pursuant to
the provisions of the Noodle Kidoodle, Inc. 1994 Stock Incentive Plan. Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities
Act"), this Post-Effective Amendment also covers an indeterminate amount of
interests to be offered or sold pursuant to the Noodle Kidoodle, Inc. 1994 Stock
Incentive Plan.
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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 Post-Effective Amendment No.1 on Form S-8
(the "Registration Statement") to Form S-4 Registration Statement and made a
part hereof:
1. The Registrant's Annual Report on Form 10-K for the year ended
January 29, 2000 (the "Form 10-K");
2. The Registrant's Quarterly Report on Form 10-Q for the period ended
April 29, 2000;
3. The Registrant's Form 8-K filed with the Commission on August 9,
2000; and
4. 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
hereto 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
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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
30, 1999 and January 29, 2000, and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the three years in
the period ended January 29, 2000, incorporated by reference in this
Registration Statement from the Form 10-K, together with all amendments thereto,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto. Such financial statements are,
and audited financial statements to be included in subsequently filed documents
will be, incorporated herein in reliance upon the reports of Arthur Andersen LLP
pertaining to such financial statements (to the extent covered by consents filed
with the Commission) given on the authority of such firm as experts in auditing
and accounting.
Item 4. Description of Securities.
-------------------------
Not Applicable
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 so long as he or she acted in good
faith and in a manner he or she believed to be in the best interests of the
corporation, and, with respect to a criminal proceeding, he or she had no reason
to believe that his or her conduct was unlawful. 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 willful 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.
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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*
99 Noodle Kidoodle, Inc. 1994 Stock Incentive Plan
-----------------------
*Previously filed
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Item 9. Undertakings.
------------
(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 been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether
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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
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in King of Prussia, Pennsylvania on
August 16, 2000.
ZANY BRAINY, INC.
By: /s/ Robert A. Helpert
---------------------------------------
Name: Robert A. Helpert
Title: Chief Financial 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.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
* Chairman of the Board and Chief August 16, 2000
--------------------------------- Executive Officer
Keith C. Spurgeon
/s/ Robert A. Helpert Chief Financial Officer (principal August 16, 2000
--------------------------------- financial and accounting officer)
Robert A. Helpert
* Director August 16, 2000
---------------------------------
C. Donald Dorsey
* Director August 16, 2000
---------------------------------
Robert A. Fox
* Director August 16, 2000
---------------------------------
Stanley Greenman
* Director August 16, 2000
---------------------------------
Henry Nasella
* Director August 16, 2000
---------------------------------
Mary A. Tocio
* Director August 16, 2000
---------------------------------
David V. Wachs
* Director August 16, 2000
---------------------------------
Yves Sisteron
*By: /s/ Robert A. Helpert August 16, 2000
---------------------------------
Attorney-in-fact
</TABLE>
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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*
99 Noodle Kidoodle, Inc. 1994 Stock Incentive Plan
------------------------
*Previously filed
