<PAGE>
As filed with the Securities and Exchange Commission on March 9, 2000.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
SMARTERKIDS.COM, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3226127
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
15 Crawford Street
Needham, Massachusetts 02494
(781) 449-7567
(Address of Principal Executive Offices) (Zip Code)
_______________________
SMARTERKIDS.COM, INC.
1995 Stock Plan
1999 Stock Option and Incentive Plan
1999 Non-Employee Director Stock Option Plan
1999 Employee Stock Purchase Plan
(Full title of the plans)
_______________________
David A. Blohm
President and Chief Executive Officer
SmarterKids.com, Inc.
15 Crawford Street
Needham, Massachusetts 02494
(781) 449-7567
(Name and address including zip code and telephone number,
including area code, of agent for service)
_______________________
Copy to:
Gordon H. Hayes, Jr., Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
_______________________
<PAGE>
===============================================================================
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Offering Maximum
Title of Securities Amount to be Per Price Aggregate Amount of
to be Registered Registered Share (1) Offering Price Registration Fee (2)
- ---------------- ---------- --------- -------------- --------------------
<S> <C> <C> <C> <C>
SmarterKids.com, Inc.
1995 Stock Plan
Options Granted
- ---------------
Common Stock (par value $.01 per share) 315,000 $ 0.0233 $ 7,340 $ 1.94
103,500 0.633 65,516 17.30
1,638,750 133 217,954 57.54
540,000 0.147 79,380 20.96
6,000 0.333 1,998 0.53
41,250 1.333 54,986 4.52
85,650 4.18 358,017 94.52
358,648 11.00 3,945,128 1,041.51
88,800 14.00 1,243,200 328.20
Options Reserved For Grant
- --------------------------
Common Stock (par value $.01 per share) (3) 18,863 5.50 103,747 27.39
SmarterKids.com, Inc.
1999 Stock Option and Incentive Plan
Options Granted
- ---------------
Common Stock (par value $.01 per share)....... 16,600 5.44 90,304 23.84
200,000 5.75 1,150,000 303.60
100,250 6.44 645,610 170.44
920,000 11.00 10,120,000 2,671.68
70,800 14.00 991,200 261.68
Options Reserved For Grant
- --------------------------
Common Stock (par value $.01 per share) (3) 1,219,148 5.50 6,705,314 1,770.20
SmarterKids.com, Inc.
1999 Non-Employee Director Stock Option Plan
Options Granted
- ---------------
Common Stock (par value $.01 per share) .... -0- -- -- --
Options Reserved For Grant
- --------------------------
Common Stock (par value $.01 per share) (3) 200,000 5.50 1,100,000 290.40
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Offering Maximum
Title of Securities Amount to be Price Per Aggregate Amount of
to be Registered Registered Share (1) Offering Price Registration Fee (2)
- ---------------- ---------- --------- -------------- --------------------
<S> <C> <C> <C> <C>
SmarterKids.com, Inc.
1999 Employee Stock Purchase Plan
Options Granted
- ---------------
Common Stock (par value $.01 per share) -0- -- -- --
Options Reserved For Grant
- --------------------------
Common Stock (par value $.01 per share) (3) 400,000 5.50 2,200,000 580.80
TOTAL: 6,323,259 29,079,653 7,677.05
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price and
the fee have been computed upon the basis of the price at which the options
may be exercised. The offering price per share set forth for such shares is
the exercise price per share at which such options are exercisable.
(2) Calculated pursuant to Section 6(b) of the Securities Act of 1933.
(3) None of such shares are subject to outstanding options. The exercise price
of such options shall be determined at the time of grant. Accordingly,
pursuant to Rule 457(h)(1), the price of $5.50 per share which is the
average of the high and low prices reported on the Nasdaq National Market on
March 6, 2000 is set forth solely for purposes of calculating the filing
fee.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) The Registrant's Registration Statement on Form S-1 as amended
(File No. 333-86787), filed pursuant to the Securities Act of 1933 which
contains audited financial statements for the fiscal years ended December 1997,
1998 and the nine months ended September 30, 1999.
(b) The section entitled "Description of Registrant's Securities to
be Registered" contained in the Registrant's Registration Statement on Form 8-A
filed pursuant to Section 12(b) of the Securities Exchange Act of 1934.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all securities offered herein have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part thereof from the date of filing of such
documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
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Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Second Amended and Restated Certificate of Incorporation of the
Registrant and the Second Amended and Restated By-Laws provide for
indemnification of the Registrant's directors and officers to the fullest extent
permitted by the General Corporation Law of Delaware, as it now exists or may in
the future be amended, against all expenses and liabilities reasonably incurred
in connection with their service to the Registrant or on its behalf. In
addition, the Registrant's Second Amended and Restated Certificate of
Incorporation provides that the Registrant's directors will not be personally
liable for monetary damages to the Registrant for breaches of their fiduciary
duty as directors, unless they violated their duty of loyalty to the Registrant
or its stockholders, acted in bad faith, knowingly or intentionally violated the
law, authorized illegal dividends or redemptions or derived improper personal
benefit from their actions as directors. The Registrant intends to obtain
insurance which insures its directors and officers against certain losses and
which insures the Registrant against its obligations to indemnify its directors
and officers. Reference is made to the Registrant's Second Amended and Restated
Certificate of Incorporation filed as Exhibit 3.03 to the Registrant's
Registration Statement on Form S-1, as amended, filed with the Commission on
November 17, 1999 (the "S-1") and Second Amended and Restated By-Laws filed as
Exhibit 3.05 to the Registrant's S-1.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Second Amended and Restated Certificate of Incorporation (a
form of which was filed as Exhibit 3.03 to the Registrant's
Registration Statement on Form S-1, as amended, (File No.
333-86787) and incorporated herein by reference)
4.2 Second Amended and Restated By-Laws (a form of which was
filed as Exhibit 3.05 to the Registrant's Registration
Statement on Form S-1, as amended, (File No. 333-86787) and
incorporated herein by reference)
4.3 SmarterKids.com, Inc. 1995 Stock Plan, as amended
4.4 SmarterKids.com, Inc. 1999 Stock Option and Incentive Plan
4.5 SmarterKids.com, Inc. 1999 Non-Employee Director Stock
Option Plan
4.6 SmarterKids.com, Inc. 1999 Employee Stock Purchase Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
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<PAGE>
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith)
24.1 Power of Attorney (included as part of the signature page
of this Registration Statement)
Item 9. 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 a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(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 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) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include
any financial statements required by Rule 3-19 of this chapter at
the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required
by Section 10(a)(3) of the Act need not be furnished, provided,
that the registrant includes in the prospectus, by means of a
post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to
ensure that all other information in the prospectus is at least
as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a
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<PAGE>
post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the
Act or Rule 3-19 of this chapter if such financial statements and
information are contained in periodic 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 Form F-3.
(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.
(c) 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 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 Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
SmarterKids.com, Inc., 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 the City of Needham, Commonwealth of Massachusetts, on this
8th day of March, 2000.
SMARTERKIDS.COM, INC.
By: /s/ Robert Cahill
-----------------
Robert Cahill
Vice President, Finance
POWER OF ATTORNEY
We, the undersigned officers and directors of SmarterKids.com, Inc.,
hereby severally constitute and appoint David Blohm and Robert Cahill, and each
of them singly, our true and lawful attorneys, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
any amendments to this Registration Statement on Form S-8 (including post-
effective amendments), and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
and generally to do all things in our names and on our behalf in our capacities
as officers and directors to enable SmarterKids.com, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
--------- -------- ----
<S> <C> <C>
/s/ David A. Blohm President, Chief Executive Officer and Director March 8, 2000
- ---------------------------------------------
David A. Blohm (Principal Executive Officer)
/s/ Jeff Pucci Co-Founder, Chairman and Director March 8, 2000
- ---------------------------------------------
Jeff Pucci
/s/ Robert Cahill Vice President, Finance March 8, 2000
- ---------------------------------------------
Robert Cahill (Principal Financial and Accounting Officer)
/s/ Richard D'Amore Director March 8, 2000
- ---------------------------------------------
Richard D'Amore
/s/ Michael Fitzgerald Director March 8, 2000
- ---------------------------------------------
Michael Fitzgerald
/s/ Brian Hickey Director March 8, 2000
- ---------------------------------------------
Brian Hickey
/s/ Michael Kolowich Director March 8, 2000
- ---------------------------------------------
Michael Kolowich
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ---------------------
<S> <C>
4.1 Second Amended and Restated Certificate of Incorporation (a
form of which filed as Exhibit 3.03 to the Registrant's
Registration Statement on Form S-1 as amended (File No. 333-
86787) and incorporated herein by reference)
4.2 Second Amended and Restated By-Laws (a form of which filed
as Exhibit 3.05 to the Registrant's Registration Statement
on Form S-1 as amended (File No. 333-86787) and incorporated
herein by reference)
4.3 SmarterKids.com, Inc. 1995 Stock Plan, as amended
4.4 SmarterKids.com, Inc. 1999 Stock Option and Incentive Plan
4.5 SmarterKids.com, Inc. 1999 Non-Employee Director Stock
Option Plan
4.6 SmarterKids.com, Inc. 1999 Employee Stock Purchase Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith)
24.1 Power of Attorney (included as part of the signature page of
this Registration Statement)
</TABLE>
<PAGE>
EXHIBIT 5.1
-----------
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
March 8, 2000
SmarterKids.com, Inc.
15 Crawford Street
Needham, Massachusetts 02494
Re: Registration Statement on Form S-8
-----------------------------------
Ladies and Gentlemen:
We are acting as counsel for SmarterKids.com, Inc., a Delaware
corporation (the "Company"), in connection with the registration on a
-------
Registration Statement on Form S-8 (the "Registration Statement") under the
----------------------
Securities Act of 1933, as amended, of the offer and sale of up to 6,323,259
shares of Common Stock, par value $.01 per share, of the Company (the "Shares")
------
to be issued upon the exercise of options under the Company's (i) 1995 Stock
Plan, (ii) 1999 Stock Option and Incentive Plan, (iii) 1999 Non-Employee
Director Stock Option Plan, and (iv) 1999 Employee Stock Purchase Plan
(collectively, the "Plans").
-----
In rendering our opinion, we have examined, and are familiar with, and
have relied as to factual matters solely upon originals or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
or other instruments as we have deemed necessary or appropriate for the purposes
of the opinion set forth herein, including, without limitation the Company's (i)
Plans, (ii) Second Amended and Restated Certificate of Incorporation, (iii)
Second Amended and Restated By-Laws, (iv) minute books, and (v) stock records.
Based upon and subject to the foregoing, we are of the opinion that
the Shares are duly authorized and, when issued and delivered pursuant to the
terms of the Plans and the terms of any agreement relating to any of the options
granted thereunder, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
EXHIBIT 23.2
------------
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 20, 1999, except for the
information contained in the second paragraph of Note 8, for which the date is
November 22, 1999, relating to the financial statements which appear in
SmarterKids.com, Inc.'s Registration Statement on Form S-1 (File No. 333-86787),
dated November 22, 1999.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
March 8, 2000
