As filed with the Securities and Exchange Commission on
October 31, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BABYUNIVERSE, INC.
(
Exact Name of Registrant as Specified in its Charter
)
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Florida
(State or Other Jurisdiction
of Incorporation or Organization)
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65-0797093
(I.R.S. Employer Identification No.)
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1099 18th Street
Denver, Colorado 80202
(303) 228-9000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive
Offices)
Michael J. Wagner
BabyUniverse, Inc.
1099 18th Street
Denver, Colorado 80202
(303) 228-9000
(Name, Address,
Including Zip Code, and
Telephone Number, Including Area Code, of Agent for Service)
Copies of all correspondence to:
D. Thomas Triggs, Esq.
Sullivan & Triggs, LLP
1230 Montana Avenue, Suite 201
Santa Monica, California 90403
Phone: (310) 451-8300
Fax: (310) 451-8303
Approximate date of commencement of proposed sale to public:
From time to time after this
registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box:
o
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, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box:
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering.
o
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.
o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Amount
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Title of Each
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Amount
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Maximum
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Maximum
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of
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Class of Securities
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to be
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Offering Price
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Aggregate
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Registration
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to be Registered
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Registered (1)
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Per Share(2)
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Offering Price(2)
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Fee
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Common Stock, par
value $0.001 per
share
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1,126,357 shares
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$11.24
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$12,660,253
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$388.67
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(1)
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Pursuant to Rule 416(a), this Registration Statement also covers any additional shares of the
Registrant’s common stock, par value $0.001 per share, that become issuable by reason of any
stock dividend, stock split, recapitalization or other similar transaction.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
based on the average of the high and low sales price per share of common stock as reported on
The Nasdaq Capital Market on October 25, 2007.
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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 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING SHAREHOLDERS
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT
IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
Subject to Completion, dated October 31, 2007
PROSPECTUS
BabyUniverse, Inc.
1,126,357 Shares of Common Stock, Par Value $0.001 per Share
This prospectus relates to the offer and sale of up to 1,126,357 shares of our common stock by
the selling shareholders named in this prospectus. We will not receive any of the proceeds from the
sale of the shares of our common stock by the selling shareholders under this prospectus.
The selling shareholders may from time to time offer and sell the shares held by them directly
or through agents or broker-dealers on terms to be determined at the time of sale. These sales may
be made on The Nasdaq Capital Market or any other national securities exchange on which our common
stock is then traded, in the over-the-counter market or in negotiated transactions. See “Plan of
Distribution” on page 9 of this prospectus.
Our common stock
is traded on The Nasdaq Capital Market under the
symbol “POSH.” On October 25, 2007,
the last sale price of our common stock reported on The Nasdaq
Capital Market was $11.40.
Investing in these securities involves significant
risks. See “Risk Factors” on page 5 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is
October 31, 2007.
TABLE OF CONTENTS
IMPORTANT NOTICE TO READERS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or SEC, using a “shelf” registration process. Under this shelf registration
process, the selling shareholders may, from time to time, offer shares of our common stock that
they own and that are covered by this prospectus. Each time the selling shareholders offer shares of common stock under this prospectus,
they will provide a copy of this prospectus and, if applicable, a copy of a prospectus supplement.
You should read both this prospectus and, if applicable, any prospectus supplements together with
the information incorporated by reference in this prospectus and, if applicable, any supplement
hereto. See “Where You Can Find Additional Information” and “Incorporation of Certain Documents by
Reference” for more information.
We have not authorized anyone to provide you with information other than the information
contained herein or incorporated by reference as set forth under “Incorporation of Certain
Documents by Reference”. None of the shares of common stock covered by this prospectus are being
offered in any jurisdiction where the offer or sale is not permitted. The information contained in
this prospectus speaks only as of the date of this prospectus and the information in the documents
incorporated or deemed to be incorporated by reference in this prospectus speaks only as of the
respective dates those documents were filed with the SEC.
1
FORWARD-LOOKING STATEMENTS
This prospectus includes “forward-looking statements” within the meaning of the safe harbor
provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking
statements in this prospectus and the documents incorporated by reference herein include, without
limitation, statements regarding our recently completed merger transaction with eToys Direct, Inc.
(“eToys Direct”) and future expectations concerning available cash and cash equivalents, financial
performance and other matters that involve known and unknown risks, uncertainties and other factors
that may cause actual results, levels of activity, performance or achievements to differ materially
from results expressed in or implied by this prospectus or the documents incorporated by reference
herein. Factors that could cause actual results to differ materially from those expressed or
implied by such forward-looking statements include, but are not limited, to:
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the anticipated benefits and risks associated with our business strategy;
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our future operating results and the future value of our common stock;
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the anticipated size or trends of the markets in which we compete and the
anticipated competition in those markets;
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our ability to attract customers in a cost-efficient manner;
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our ability to attract and retain qualified management personnel;
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potential government regulation;
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our future capital requirements and our ability to satisfy our capital needs;
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the potential for additional issuances of our securities;
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the possibility of future acquisitions of businesses or assets; and
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possible expansion into international markets.
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Furthermore, in some cases, you can identify forward-looking statements by terminology such as
“may,” “could,” “should,” “expect,” “plan,” “intend,” “anticipate,” “believe,” “estimate,”
“predict,” “potential” or “continue,” the negative of such terms or other comparable terminology.
These statements are only predictions. In evaluating these statements, you should specifically
consider various factors, including the risks referenced in the “Risk Factors” section below. These
factors may cause our actual results to differ materially from any forward-looking statement.
Although we believe that the expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, levels of activity, performance or achievements.
2
PROSPECTUS SUMMARY
About this Prospectus
When used in this
prospectus and any prospectus supplement, the terms “we,” “our,” “us”, the
“Company” or “BabyUniverse” refer to BabyUniverse, Inc. and, as applicable, its subsidiaries, other than eToys Direct.
The following summary contains basic information about us. It likely does not contain all of the information that is important to you.
We encourage you to read this entire prospectus and the documents we have referred you to.
BabyUniverse, Inc.
BabyUniverse is a leading Internet content, commerce and new media company in the pregnancy,
baby and toddler marketplace. Through its websites BabyUniverse.com and DreamtimeBaby.com,
BabyUniverse is a leading online retailer of brand-name baby, toddler and maternity products in the
United States. Through its websites PoshTots.com and PoshLiving.com, BabyUniverse has extended its
offerings in the baby and toddler market as a leading online provider of luxury furnishings to the
country’s most affluent female consumers. Through its websites PoshCravings.com and ePregnancy.com
and its flagship new media offering BabyTV.com, BabyUniverse has also established a recognized
platform for the delivery of content and new media resources to a national audience of expectant
parents.
BabyUniverse is pursuing a dual strategy of organic growth and acquisition growth that is
designed to establish BabyUniverse as the leader in the online baby marketplace. Beyond the baby
segment, BabyUniverse intends to leverage its efficient and growing ecommerce platform to acquire
other female-oriented ecommerce, marketing and new media companies. The overall objective of
BabyUniverse is to establish a market-leading ecommerce and new media business focused on the
high-growth female marketplace.
To further this objective, our stock began trading on The Nasdaq Capital Market on March 27,
2006, after trading on the American Stock Exchange since August 3, 2005. At the same time, we
changed our trading symbol from “BUN” to “POSH.” We believe this change is more reflective of our
strategy to appeal to a broader female marketplace by leveraging our strong ecommerce business
model with econtent and new media initiatives focused on this country’s most affluent online female
consumers.
We were incorporated in Florida on October 15, 1997, as Everything But The Baby Inc. and
initially operated the domain name www.everythingbutthebaby.com. In 1999, we began to market our
products under the BabyUniverse brand at www.babyuniverse.com, and we changed our corporate name to
BabyUniverse, Inc. on November 16, 2001.
We believe that we are one of the largest online retailers of baby, toddler and maternity
products in terms of product offerings and revenues. As an industry leader, we have grown our
business internally since inception by increasing our presence in what we have identified to be the
largest and most efficient Internet shopping portals, as well as through search engine marketing,
resulting in increased traffic to our websites. We have also attempted to improve our sales
conversion rate by broadening our product offerings and by actively managing the placement of the
best-selling products on our websites.
The market for online retailers offering baby, toddler and maternity related products is
highly fragmented, with a significant number of small competitors representing a significant
percentage of total segment sales. We believe that our seasoned senior management team and our
scalable business architecture make us well-suited to acquire both large and small industry
competitors. As part of our acquisition strategy, we intend to preserve the goodwill and marketing
relationships of acquired companies as necessary to maintain and grow market share. In addition, we
may acquire companies that market products
3
predominantly to women over the Internet, or companies that enhance our ability to market
products to women.
Our ecommerce offerings include over 35,000 products from over 600 manufacturers that are
presented in easy-to-use online shopping environments that include baby, toddler and maternity
accessories, apparel, bedding, furniture, toys and gifts. These products are available in a variety
of styles, colors and sizes which account for over 750,000 stock keeping units (“SKUs”). We also
provide expert buyer’s guides and product descriptions to assist our customers with finding quality
products and to help parents make informed decisions about their babies’ and toddlers’ needs and
safety.
On March 13, 2007, we entered into an Agreement and Plan of Merger with eToys Direct that
provides for the merger of a wholly-owned subsidiary of ours with and into eToys Direct, with eToys
Direct thereupon becoming a wholly-owned direct subsidiary of BabyUniverse and the surviving
corporation in the merger. On October 12, 2007, we completed the merger transaction with eToys
Direct. This transaction and eToys Direct are further described under “The Merger”.
Executive Offices
Our executive offices are located at 1099 18th Street, Denver, Colorado 80202 and our
telephone number is (303) 228-9000. The information on or that can be accessed through our
websites and eToys Direct’s websites, including www.babyuniverse.com, www.etoys.com, www.kbtoys.com, www.mytwinn.com,
www.dreamtimebaby.com, www.poshtots.com, www.poshliving.com, www.poshcravings.com,
www.epregnancy.com and www.babytv.com is not part of this prospectus.
The Offering
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Shares of common stock offered by the selling shareholders
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1,126,357 shares
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Use of proceeds
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We will not receive
any proceeds from
the sale of the
shares of our
common stock by the
selling
shareholders.
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Our Nasdaq Capital Market symbol
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POSH
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4
RISK FACTORS
Investing in our securities involves risk. Prior to making a decision about investing in our
securities, you should carefully consider the specific factors discussed under the caption “Risk
Factors” and the other information in our proxy statement/prospectus included in Amendment No. 3 to
our Registration Statement on Form S-4 filed with the SEC on September 28, 2007, which proxy
statement/prospectus is incorporated by reference in this prospectus. The risks and uncertainties
described in this prospectus and the documents incorporated by reference herein are not the only
ones facing us. Additional risks and uncertainties that we do not presently know about or that we
currently believe are not material may also adversely affect our business. If any of the risks and
uncertainties described in this prospectus or the documents incorporated by reference herein
actually occur, our business, financial condition and results of operations could be materially and
adversely affected. If this were to happen, the value of our common stock could decline
significantly, and you may lose part or all of your investment.
THE MERGER
On March 13, 2007, we entered into an Agreement and Plan of Merger with eToys Direct that
provides for the merger of a wholly-owned subsidiary of ours with and into eToys Direct, with eToys
Direct thereupon becoming a wholly-owned direct subsidiary of BabyUniverse and the surviving
corporation in the merger. On October 12, 2007, we completed the merger with eToys Direct. In
connection with the merger, the eToys Direct stockholders immediately prior to the merger received
shares of our common stock equal to approximately 66 2/3% of the combined company on a
fully-diluted basis, without taking into account the dilutive effect of outstanding options to
purchase shares of eToys Direct common stock, which were automatically converted at the effective
time of the merger into options to purchase shares of our common stock.
eToys Direct is a leading online retailer of toys, video games, electronics, party goods,
movies, videos and baby products. eToys Direct offers an extensive selection of products through
its online store and catalogs. eToys Direct strives to maintain the highest standards for product
selection, quality and value, gift delivery and customer service, in an effort to provide its
customers and the recipients of its products the best possible gift experience. eToys Direct’s
business primarily consists of (i) the retail sale of a wide range of popular brand name toys and
children’s products, including, among others, video games, learning toys, costumes, party goods,
computer software, books, child-oriented and appropriate electronics, kid’s room decor and baby
products and (ii) the design, assembly and sale of custom personalized dolls handcrafted to
resemble a customer’s child, including eye color, skin tone and hair length, texture and color, as
well as matching clothing, furniture and accessories.
We and eToys Direct made customary representations, warranties and covenants in the merger
agreement, and the consummation of the merger was subject to certain conditions, including, among
others, the approval of the holders of our common stock. The merger agreement, as amended, the
merger and eToys Direct are described in more detail in our proxy statement/prospectus included in
Amendment No. 3 to our Registration Statement on Form S-4 filed with the SEC on September 28, 2007,
which proxy statement/prospectus is incorporated herein by reference.
5
USE OF PROCEEDS
We will not receive
any proceeds from the sale by the selling shareholders of shares of our common stock.
SELLING SHAREHOLDERS
On September 5, 2007, we completed a private placement of our equity securities to certain
“qualified institutional buyers” (as that term is defined in Rule 144A promulgated under the
Securities Act of 1933, as amended (the “Securities Act”)), and two “accredited investors” (as that
term is defined in Regulation D promulgated under the Securities Act), the purpose of which was to
raise the funds necessary to repay all of our outstanding indebtedness and to pay the fees incurred
by us in connection with the transactions contemplated by the merger agreement with eToys Direct.
As a result of this private placement, prior to the consummation of our merger transaction with
eToys Direct, (i) we received an aggregate of approximately $11.5 million in gross cash proceeds,
(ii) an aggregate of $0.9 million of our outstanding bank indebtedness was cancelled, and (iii) our
obligation to pay in cash the placement agency fees incurred in connection with this private
placement was cancelled, and in exchange therefor, we issued an aggregate of 2,038,991 shares of
our common stock, 1,094,346 of which shares are covered by the prospectus contained in Amendment
No. 1 to our Registration Statement on Form S-3 filed with the SEC on October 10, 2007. All of the
remaining 944,645 shares of our common stock issued in this private placement, and an aggregate of
181,712 shares of our common stock that are subject to outstanding options that were issued to
certain of the selling shareholders listed in the table below in connection with this private
placement by certain of our other shareholders who are affiliates of BabyUniverse, Inc., are
covered by this prospectus.
CIBC World Markets Corp., a broker-dealer registered as such with the SEC, acted as our
placement agent in connection with the private placement completed on September 5, 2007. The
shares of our common stock held by CIBC World Markets Corp. that are covered by this prospectus
were issued to it in satisfaction of the placement agency fee that we agreed to pay to it for so
acting as our placement agent.
Each of the other selling shareholders listed in the table below, other than Plus Four Private
Equities, LP, is an affiliate of a broker-dealer registered as such with the SEC, and each such
selling shareholder that is such an affiliate has advised us that (i) the shares of our common
stock held by such shareholder that are covered by this prospectus were purchased by it to be
resold in the ordinary course of business, and (ii) at the time of such purchase, it had no
agreements or understandings, directly or indirectly, with any person to distribute such shares.
The selling shareholders, including their pledgees, donees, assignees, transferees or their
successors, may from time to time offer and sell pursuant to this prospectus or a supplement hereto
any or all of the shares of our common stock covered by this prospectus. When we refer to “selling
shareholders” in this prospectus, we mean those persons listed in the table below, as well as their
pledgees, donees, assignees, transferees, successors and others who later hold any of the
selling shareholders’ interests, whether they receive such shares as a gift, partnership
distribution or other non-sale related transfer.
The table below sets forth the name of each selling shareholder and the number of shares of
our common stock (including such shares covered by outstanding options) beneficially owned by each
selling shareholder that may be offered pursuant to this prospectus. CIBC World Markets Corp. acted
as our placement agent in connection with the private placement we completed on September 5, 2007.
Lydian Private Bank, an affiliate of Lydian Financial Holding Company, (i) in September 2006, made
an interest-bearing loan in the principal amount of $2,500,000 to certain of our affiliates for the
purpose of funding the purchase by such affiliates of shares of our common stock, and (ii) in
December 2006, made an interest-bearing loan to us in the principal amount of $2,000,000. Other
than as set forth below with respect to its
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status as a shareholder of BabyUniverse, to our knowledge, none of the other selling
shareholders has, or within the past three years has had, any material relationship with us or any
of our predecessors or affiliates.
We have prepared the table based on information given to us by or on behalf of the selling
shareholders on or prior to October 25, 2007. The selling shareholders may sell some, all or none
of these shares. The table assumes that the selling shareholders sell all of the shares registered
under this prospectus. In addition, the selling shareholders identified below may have sold,
transferred or otherwise disposed of all or a portion of their shares since the date on which they
provided the information to us in transactions exempt from the registration requirements of the
Securities Act. We currently have no agreements, arrangements or understandings with the selling
shareholders regarding the sale of any such shares.
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Shares Beneficially
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Number of
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Shares Beneficially
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Owned Prior to the
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Shares
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Owned After
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Name of Selling Shareholder
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Offering (1)
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Being Offered
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the Offering (1)
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Number
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Percent
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Number
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Percent
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Plus Four Private Equities, LP (2)
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1,039,375
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4.3
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%
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31,875
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1,007,500
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4.2
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%
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CIBC World Markets Corp. (3)
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71,869
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*
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71,869
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—
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0.0
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%
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Lydian Financial Holding Company (4)
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145,985
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*
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145,985
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—
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0.0
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%
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Pequot Capital Management, Inc. (5)
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479,998
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2.0
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%
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39,844
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440,154
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1.8
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%
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Janus Investment Fund on behalf of
its series Janus Venture Fund (6)
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1,133,024
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4.7
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%
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755,619
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377,405
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1.6
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%
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Janus Capital Funds plc on behalf
of its series Janus US Venture Fund
(6)
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103,317
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*
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71,132
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32,185
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*
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Small Cap Growth Portfolio, a
series of Ohio National Fund, Inc.
(6)
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14,856
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*
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10,033
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4,823
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*
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*
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Denotes less than 1%
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(1)
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Based on 24,141,250 shares of common stock outstanding as of October 25, 2007.
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(2)
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Assumes full exercise of outstanding options to purchase an aggregate of 31,875 shares of our
common stock beneficially owned by the selling shareholder (the “Plus Four Options”). The Plus
Four Options are exercisable during the period commencing on April 12, 2008 and ending on July 12,
2009. Also includes 600,000 shares owned by Dito Caree L.P., 70,000 shares owned by Richard Pickup
IRA, and 25,000 shares owned by Plus Four Equity Partners, LP, each of which, along with Plus Four
Private Equities, LP is an affiliate of Richard H. Pickup. The person who has the ultimate voting
and investment control over the shares of BabyUniverse, Inc. held by Plus Four Private Equities,
LP is Todd M. Pickup, the son of Richard H. Pickup. The shares being offered pursuant to this
prospectus are the shares covered by the Plus Four Options. The Plus Four Options were acquired
pursuant to the terms of a Stock Purchase Agreement, dated as of June 13, 2007, which is included
as Exhibit 99.3 to the registration statement of which this prospectus is a part, and the Option
Agreement referenced therein.
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(3)
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The shares being offered pursuant to this prospectus were issued to CIBC World Markets Corp.
pursuant to the terms of a Subscription Agreement, dated as of August 30, 2007, which is included
as Exhibit 99.7 to the registration statement of which this prospectus is a part.
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(4)
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Lydian Trust Company had the right to acquire from us 145,985 shares of our common stock
pursuant to a Subscription and Loan Satisfaction Agreement, dated as of September 5, 2007, which is
included as Exhibit 99.8 to the registration statement of which this prospectus is a part. At the
request of
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Lydian Trust Company, we issued said 145,985 shares of our common stock to Lydian
Financial Holding Company, an affiliate of Lydian Trust Company.
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(5)
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Assumes full exercise of outstanding warrants to purchase an aggregate of 39,658 shares of
our common stock and outstanding options (the “Pequot Options”) to purchase an aggregate of 39,844
shares of our common stock. The Pequot Options are exercisable during the period commencing on
April 12, 2008 and ending on July 12, 2009. The Pequot Options are owned by the following funds
in the following amounts: Pequot DM Fund, L.P., options to acquire 28,688 shares, and Pequot Proprietary Risk
Allocation Fund, L.P., options to acquire 11,156 shares. Pequot Capital Management, Inc., which is the investment
adviser to the above named funds, exercises sole dispositive, investment and voting power for all
the shares. Arthur J. Samberg is the controlling shareholder of Pequot Capital Management, Inc. and
disclaims beneficial ownership of the shares except for his pecuniary interest. The shares being
offered pursuant to this prospectus are the shares covered by the Pequot Options. The Pequot
Options were acquired pursuant to the terms of two Securities Purchase Agreements, dated as of July
6, 2007, which are included as Exhibits 99.4 and 99.5 to the registration statement of which this
prospectus is a part, and the Option Agreement referenced in each.
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(6)
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Assumes full exercise of outstanding options to purchase an aggregate of 109,993 shares of our
common stock beneficially owned by the selling shareholders (the “Janus Options”). The Janus
Options are exercisable during the period commencing on April 12, 2008 and ending on July 12, 2009.
William Bales, acting as the portfolio manager, has sole voting and dispositive control over the
securities held by Janus Venture Fund (a series of Janus Investment Fund) (“Janus Venture Fund”),
Janus US Venture Fund (a series of Janus Capital Funds plc) (“Janus US Venture Fund”), and Small
Cap Growth Portfolio (a series of Ohio National Fund, Inc.) (“Small Cap Growth Portfolio”). Janus
Capital Management LLC (“Janus Capital Management”) serves as the investment adviser to Janus
Venture Fund and Janus US Venture Fund and as sub-adviser to Small Cap Growth Portfolio. The shares
being offered pursuant to this prospectus were acquired pursuant to the terms of a Stock Purchase
Agreement, dated as of June 13, 2007, which is included as Exhibit 99.6 to the registration
statement of which this prospectus is a part, as amended pursuant to a First Amendment to Stock
Purchase Agreement, dated as of September 5, 2007, which is included as Exhibit 99.9 to the
registration statement of which this prospectus is a part (as so amended, the “Janus SPA”), and the
Option Agreement referenced therein. The shares being offered pursuant to this prospectus are all
of the shares of our common stock, in the aggregate amount of 726,791 shares, issued to these
shareholders at the Second Closing (as defined in the Janus SPA) immediately prior to the
consummation of our merger transaction with eToys Direct, and the 109,993 shares of our common
stock covered by the Janus Options.
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8
PLAN OF DISTRIBUTION
We are registering 1,126,357 shares of our common stock to permit the resale of these shares
by the selling shareholders from time to time after the date of this prospectus. The selling
shareholders and their pledgees, donees, transferees, distributees or other successors-in-interest
may from time to time sell the common stock covered by this prospectus directly to purchasers or
offer the common stock through underwriters, broker-dealers or agents, who may receive compensation
in the form of underwriters’ discounts or commissions or agents’ commissions from the selling
shareholders and/or the purchasers of securities for whom they may act as agent, which
underwriters’ discounts or commissions or agents’ commissions as to any particular underwriter,
broker-dealer or agent may be in excess of those customary in the types of transactions involved.
The common stock may be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of sale, or at negotiated
prices. The sale of the common stock may be effected in transactions (which may involve block
transactions):
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through a securities exchange distribution in accordance with the rules of that
exchange,
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in the over-the-counter market,
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that are purchases by a broker or dealer as principal and resale by the broker or
dealer for its own account pursuant to this prospectus,
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that are ordinary brokerage transactions and transactions in which the broker
solicits purchases,
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that are privately negotiated transactions,
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•
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that are short sales,
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•
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that consist of one or more underwritten offerings on a firm commitment or best
efforts basis,
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otherwise than through an exchange or in the over-the-counter market,
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through the writing of options,
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consisting of any combination of any of these methods of sale, and
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pursuant to any other method permitted by applicable law.
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The selling shareholders may engage brokers, dealers, and underwriters and any such brokers,
dealers or underwriters may arrange for other brokers or dealers to participate in effecting sales
of the common stock. These brokers, dealers or underwriters may act as principals, or as an agent
of a selling shareholder. Broker-dealers may agree with a selling shareholder to sell a specified
number of the shares at a stipulated price per share. If the broker-dealer is unable to sell common
stock acting as agent for a selling shareholder, it may purchase as principal any unsold shares at
the stipulated price. Broker-dealers who acquire common stock as principals may thereafter resell
the shares from time to time in transactions on any stock exchange or automated interdealer
quotation system on which the common stock is then listed or quoted, at prices and on terms then
prevailing at the time of sale, at prices related to the then-current market
9
price or in negotiated transactions. Broker-dealers may use block transactions and sales to
and through broker-dealers, including transactions of the nature described above.
The selling shareholders may pledge or grant a security interest in some or all of the shares
of common stock owned by the selling shareholders and, if a selling shareholder defaults in the
performance of its secured obligations, the pledgees or secured parties may offer and sell the
shares of common stock from time to time pursuant to this prospectus or any amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act, amending, if
necessary, the list of selling shareholders to include the pledgees, transferees or other
successors-in-interest as selling shareholders under this prospectus. The selling shareholders also
may transfer and donate the shares of common stock in other circumstances, in which case the
transferees, donees or other successors-in-interest will be the selling beneficial owners for
purposes of this prospectus.
In connection with the sale of the common stock offered hereby or otherwise, the selling
shareholders may enter into hedging transactions with broker-dealers, which may in turn engage in
short sales of the common stock, as the case may be, in the course of the hedging positions they
assume. The selling shareholders may also sell the common stock short and deliver the common stock,
as the case may be, to close out short positions or loan or pledge the common stock to
broker-dealers that in turn may sell the common stock.
The aggregate proceeds to the selling shareholders from the sale of the common stock offered
by them hereby will be the purchase price of such common stock less discounts and commissions, if
any. The selling shareholders reserve the right to accept and, together with their agents from time
to time, to reject, in whole or in part, any proposed purchase of securities to be made directly or
through agents.
Our common stock is listed for trading on The Nasdaq Capital Market under the symbol “POSH.”
In order to comply with the securities laws of some states, if applicable, the securities may
be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition,
in some states, the shares of common stock may not be sold unless such shares have been registered
or qualified for sale in such states or an exemption from registration or qualification is
available and complied with.
The selling shareholders and any underwriters, broker-dealers or agents that participate in
the sale of the securities, may be “underwriters” within the meaning of Section 2(11) of the
Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the
securities may be underwriting discounts and commissions under the Securities Act. If any selling
shareholder is an “underwriter” within the meaning of Section 2(11) of the Securities Act it will
be subject to the prospectus delivery requirements of the Securities Act. The selling shareholders
have acknowledged that they understand their obligations to comply with the provisions of the
Securities Exchange Act of 1934 and the rules thereunder relating to stock manipulation,
particularly Regulation M, and have agreed that they will not engage in any transaction in
violation of such provisions.
In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule
144 promulgated under the Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
At the time of a particular offering of securities by a selling shareholder, a supplement to
this prospectus, if required, will be circulated setting forth the aggregate amount and type of
securities being offered and the terms of the offering, including the name or names of any
underwriters, broker-dealers or agents, any discounts, commissions and other terms constituting
compensation from the selling shareholders and any discounts, commissions or concessions allowed or
reallowed or paid to broker-dealers.
10
We will pay all expenses of the registration of the shares of common stock, including, without
limitation, SEC filing fees and expenses of compliance with state securities or “blue sky” laws;
provided, however, that the selling shareholders will pay all applicable underwriting discounts and
selling commissions, if any, and, in the case of certain selling shareholders, such selling
shareholders will pay all fees and expenses of counsel and other advisers retained by such selling
shareholders, if any. We will indemnify the selling shareholders against certain liabilities,
including under the Securities Act, in accordance with our contractual obligations, or the selling
shareholders will be entitled to contribution. We may be indemnified by the selling shareholders
against certain liabilities, including under the Securities Act, that may arise from any written
information furnished to us by the selling shareholders specifically for use in this prospectus, in
accordance with the selling shareholders’ contractual obligations, or we may be entitled to
contribution. The selling shareholders may agree to indemnify any agent, dealer or broker-dealer
that participates in transactions involving sales of the shares of our common stock against civil
liabilities, including liabilities under the Securities Act.
Once sold under the registration statement which includes this prospectus, the shares of
common stock will be freely tradable in the hands of persons other than our affiliates.
We have agreed with the selling shareholders to keep the registration statement of which this
prospectus is a part effective for a maximum period of two years, or such earlier time as all of
the shares of common stock covered hereby have been sold.
CIBC World Markets Corp., a broker-dealer registered as such with the SEC, acted as our
placement agent in connection with the private placement completed by us on September 5, 2007. The
shares of our common stock held by CIBC World Markets Corp. that are covered by this prospectus
were issued to it in satisfaction of the placement agency fee that we agreed to pay to it for so
acting as our placement agent.
The maximum
commission or discount to be received by any member of the Financial Industry Regulatory Authority, Inc., or independent
broker-dealer, will not be greater than 8% of the initial gross proceeds from the sale of any
security sold in the offering.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at
http://www.sec.gov. The SEC’s website contains reports, proxy and information statements and other
information regarding issuers, such as us, that file electronically with the SEC. You may also read
and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. You may also obtain copies of these documents at prescribed rates by
writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation
of its Public Reference Room. We maintain a website at http://www.babyuniverse.com. We have not
incorporated by reference into this prospectus the information on our website, and you should not
consider it to be a part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have “incorporated by reference” into this prospectus certain information we have filed, or
will file, with the SEC. The information we incorporate by reference into this prospectus is an
important part of this prospectus. Any statement in a document we incorporate by reference into
this prospectus will be considered to be modified or superseded to the extent a statement contained
in this prospectus or any other subsequently filed document that is incorporated by reference into
this prospectus modifies or supersedes that statement. The modified or superseded statement will
not be considered to be a part of this prospectus, except as modified or superseded.
11
We incorporate by reference into this prospectus the information contained in the documents
listed below, which is considered to be a part of this prospectus:
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Annual Report on Form 10-K for the year ended December 31, 2006, filed on April
2, 2007;
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Quarterly Report on Form 10-Q for each of the quarters ended March 31, 2007,
filed on May 15, 2007, and June 30, 2007, filed on August 14, 2007;
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Current Reports on Form 8-K, other than information furnished pursuant to Item 2.02
or Item 7.0, of Form 8-K, filed on January 5, 2007, March 14, 2007, March 16,
2007, April 2, 2007, April 5, 2007, May 15, 2007, May 16, 2007, May 30, 2007,
June 4, 2007, June 19, 2007, July 11, 2007, August 14, 2007, August 15, 2007,
September 11, 2007, September 17, 2007, and October 18, 2007;
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Description of our common stock contained in the Registration Statement on Form
S-1, filed on April 28, 2005, and in the Amendments to the Registration Statement on
Form S-1/A filed on June 15, 2005, July 13, 2005 and on July 28, 2005;
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Our proxy statement/prospectus included in Amendment No. 3 to our Registration
Statement on Form S-4, filed on September 28, 2007; and
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All other subsequent documents filed by us under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, other than any information furnished
pursuant to Item 2.02 or Item 7.01 of Form 8-K or as otherwise permitted by SEC
rules and regulations, after the date of this prospectus.
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You may request a copy of these filings, at no cost, by writing or telephoning us at the
following address or telephone number:
BabyUniverse, Inc.
1099 18th Street
Denver, Colorado 80202
Attention: Corporate Secretary
Telephone: (303) 228-9000
LEGAL MATTERS
The validity of the common stock offered hereby has been passed upon for us by Akerman
Senterfitt, Miami, Florida.
EXPERTS
Our consolidated financial statements at December 31, 2006 and 2005, and for each of the two
years in the period ended December 31, 2006, incorporated in this prospectus by reference to our
proxy statement/prospectus included in Amendment No. 3 to our Registration Statement on Form S-4
filed with the Securities and Exchange Commission on September 28, 2007, have been audited by
Singer Lewak Greenbaum & Goldstein LLP, independent registered public accounting firm, as set forth
in their report, incorporated by reference in this prospectus, and are included in reliance upon
such report given on the authority of such firm as experts in accounting and auditing.
12
Our consolidated financial statements for the year ended December 31, 2004, incorporated in
this prospectus by reference to our proxy statement/prospectus included in Amendment No. 3 to our
Registration Statement on Form S-4 filed with the Securities and Exchange Commission on September
28, 2007, have been audited by Lieberman & Associates, P.A., independent registered public
accounting firm, as set forth in their report, incorporated by reference in this prospectus, and
are included in reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of eToys Direct, Inc. at February 3, 2007 and January
28, 2006, and for each of the two years ended February 3, 2007 and January 28, 2006, and the period
from May 10, 2004 (inception) to January 29, 2005, incorporated in this prospectus by reference to
our proxy statement/prospectus included in Amendment No. 3 to our Registration Statement on Form
S-4 filed with the Securities and Exchange Commission on September 28, 2007, have been audited by
Ernst & Young LLP, independent registered public accounting firm, as set forth in their report,
incorporated by reference in this prospectus, and are included in reliance upon such report given
on the authority of such firm as experts in accounting and auditing.
13
BABYUNIVERSE, INC.
1,126,357 Shares of Common Stock, Par Value $0.001 per Share
PROSPECTUS
October 31, 2007
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the costs and expenses, other than underwriting discounts and
commissions, payable in connection with the issuance and distribution of the securities being
registered.
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Securities and Exchange Commission filing fee
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$
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388.67
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Legal fees and expenses
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5,000.00
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Accounting fees and expenses
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5,000.00
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Printing expenses
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2,500.00
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Miscellaneous
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2,111.33
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Total expenses
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$
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15,000.00
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All of the above enumerated fees and expenses will be paid by us. Other than the Securities
and Exchange Commission filing fee, all fees and expenses are estimated.
Item 15. Indemnification of Directors and Officers.
Indemnification under our Second Amended and Restated Articles of Incorporation and
Amended Bylaws and Florida Law
The Florida Business Corporation Act, or FBCA, permits a Florida corporation to indemnify any
person who may be a party to any third party proceeding by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another entity, against
liability incurred in connection with such proceeding (including any appeal thereof) if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
The FBCA permits a Florida corporation to indemnify any person who may be a party to a
derivative action if such person acted in any of the capacities set forth in the preceding
paragraph, against expenses and amounts paid in settlement not exceeding, in the judgment of the
board of directors of the corporation, the estimated expenses of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or settlement of such
proceeding (including appeals), provided that the person acted under the standards set forth in the
preceding paragraph. However, no indemnification shall be made for any claim, issue, or matter for
which such person is found to be liable unless, and only to the extent that, the court determines
that, despite the adjudication of liability, but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for such expenses which the court deems
proper.
The FBCA provides that any indemnification made under the above provisions, unless pursuant to
a court determination, may be made only after a determination that the person to be indemnified has
met the standard of conduct described above. This determination is to be made by a majority vote of
a quorum consisting of the disinterested directors of the board of directors, by duly selected
independent legal counsel, or by a majority vote of the disinterested shareholders of the
corporation. The board of directors also may designate a special committee of disinterested
directors to make this determination. Notwithstanding the foregoing, the FBCA provides that a
Florida corporation must indemnify any director, officer, employee or agent of a corporation who
has been successful in the defense of any proceeding referred to above.
Notwithstanding the foregoing, the FBCA provides, in general, that no director of a
corporation shall be personally liable for monetary damages to the corporation or any other person
for any statement, vote, decision, or failure to act, regarding corporate management or policy,
unless: (a) the director beached or failed to perform his or her
II-1
duties as a director; and (b) the
director’s breach of, or failure to perform, those duties constitutes (i) a violation of
criminal law, unless the director had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was unlawful, (ii) a transaction
from which the director derived an improper personal benefit, either directly or indirectly, (iii) an
approval of an unlawful distribution, (iv) with respect to a proceeding by or in the right of
the corporation to procure a judgment in its favor by or in the right of a shareholder, conscious
disregard for the best interests of the company, or willful misconduct, or (v) with respect to a
proceeding by or in the right of someone other than the corporation or a shareholder, recklessness
or an act or omission which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or property. The term
“recklessness,” as used above, means the action, or omission to act, in conscious disregard of a
risk: (a) known, or so obvious that it should have been known, to the director; and (b) known to
the director, or so obvious that it should have been known, to be so great as to make it highly
probably that harm would follow from such action or omission.
The FBCA further provides that the indemnification and advancement of payment provisions
contained therein are not exclusive and it specifically empowers a corporation to make any other
further indemnification or advancement of expenses of or to any of its directors, officers, employees or
agents under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise,
both for actions taken in an official capacity and for actions taken in other capacities while
holding such office. However, a corporation cannot indemnify or advance expenses if a judgment or
other final adjudication establishes that the actions of the director, officer, employee, or agent
were material to the adjudicated cause of action and the director, officer, employee, or agent (a) violated
criminal law, (b) derived an improper personal benefit from a transaction, (c) was or is a
director in a circumstance where the liability for unlawful distributions applies, or (d) engaged
in willful misconduct or conscious disregard for the best interests of the corporation in a
proceeding by or in right of the corporation to procure a judgment in its favor or in a proceeding
by or in right of a shareholder.
We have adopted provisions in our second amended and restated articles of incorporation and
amended bylaws providing that our board of directors, officers, employees, and agents shall be
indemnified to the fullest extent permitted by Florida law. Additionally, our amended bylaws permit
us to secure insurance on behalf of any officer, director, employee or other agent for any
liability arising out of his or her actions in connection with their services to us, regardless of
whether our second amended and restated articles of incorporation or amended bylaws permit such
indemnification.
We maintain insurance policies insuring each of our directors and officers against certain
civil liabilities, including liabilities under the Securities Act.
Indemnification under the Merger Agreement with eToys Direct, Inc.
We have agreed for the six-year period following the effective date of our merger transaction
with eToys Direct, Inc. to, or to cause eToys Direct, Inc., as the surviving entity in the proposed
merger, to, indemnify each director or officer of eToys Direct, Inc. for any and all actions taken
by those individuals prior to the effective time of the merger to the fullest extent and in the
same manner as eToys Direct, Inc. provided indemnification to those directors and officers pursuant
to its certificate of incorporation in effect at the effective time of the merger. Under our merger
agreement with eToys Direct, Inc., we have also agreed to, or to cause eToys Direct, Inc., as the
surviving entity in the merger, to, obtain directors and officers insurance covering the persons
covered as of the time immediately prior to the consummation of the merger under eToys Direct,
Inc.’s directors and officers insurance for a period of six years from the effective date of the
merger.
Item 16. Exhibits.
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Exhibit Number
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Document Description
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1.1
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*
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4.1
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Specimen Common Stock certificate (incorporated by reference to the identically
numbered exhibit in BabyUniverse, Inc.’s Registration Statement on Form S-1/A —
Registration Number 333-124395).
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5.1
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Legal opinion of Akerman Senterfitt.
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II-2
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Exhibit Number
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Document Description
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23.1
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Consent of Singer Lewak Greenbaum & Goldstein LLP, Independent Registered Public
Accounting Firm.
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23.2
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Consent of Lieberman & Associates, P.A., Independent Registered Public Accounting
Firm.
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23.3
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
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23.4
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Consent of Akerman Senterfitt (included in Exhibit 5.1 hereto).
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24.1
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Power of Attorney (included on the signature page of this registration statement).
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99.1
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Securities Purchase Agreement, dated as of May 24, 2007, between BabyUniverse,
Inc. and Pequot Proprietary Risk Allocation Fund, L.P. (incorporated by reference
to Exhibit 99.3 to the Registration Statement on Form S-4/A (File No. 333-143765)
filed by BabyUniverse, Inc. on July 23, 2007).
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99.2
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Securities Purchase Agreement, dated as of May 24, 2007, between BabyUniverse,
Inc. and Pequot DM Fund, L.P. (incorporated by reference to Exhibit 99.4 to the
Registration Statement on Form S-4/A (File No. 333-143765) filed by BabyUniverse,
Inc. on July 23, 2007).
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99.3
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Stock Purchase Agreement, dated as of June 13, 2007, between BabyUniverse, Inc.
and Plus Four Private Equities, LP (incorporated by reference to Exhibit 99.6 to
the Registration Statement on Form S-4/A (File No. 333-143765) filed by
BabyUniverse, Inc. on July 23, 2007).
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99.4
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Stock Purchase Agreement, dated as of July 6, 2007, between BabyUniverse, Inc.
and Pequot Proprietary Risk Allocation Fund, L.P. (incorporated by reference to
Exhibit 99.7 to the Registration Statement on Form S-4/A (File No. 333-143765)
filed by BabyUniverse, Inc. on July 23, 2007).
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99.5
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Stock Purchase Agreement, dated as of July 6, 2007, between BabyUniverse, Inc.
and Pequot DM Fund, L.P. (incorporated by reference to Exhibit 99.8 to the
Registration Statement on Form S-4/A (File No. 333-143765) filed by BabyUniverse,
Inc. on July 23, 2007).
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99.6
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Stock Purchase Agreement, dated as of June 13, 2007, between BabyUniverse, Inc.,
on the one hand, and Janus Investment Fund on behalf of its series Janus Venture
Fund, Janus Capital Funds plc on behalf of its series Janus US Venture Fund, and Small
Cap Growth Portfolio, a series of Ohio National Fund, Inc. (incorporated by
reference to Exhibit 99.5 to the Registration Statement on Form S-4/A (File No.
333-143765) filed by BabyUniverse, Inc. on July 23, 2007).
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99.7
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Subscription Agreement, dated as of August 30, 2007, between BabyUniverse, Inc.
and CIBC World Markets Corp. (incorporated by reference to Exhibit 99.9 to the
Registration Statement on Form S-4/A (File No. 333-143765) filed by BabyUniverse,
Inc. on September 7, 2007).
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99.8
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Subscription and Loan Satisfaction Agreement, dated as of September 5, 2007,
between BabyUniverse, Inc. and Lydian Trust Company (incorporated by reference to
Exhibit 99.10 to the Registration Statement on Form S-4/A (File No. 333-143765)
filed by BabyUniverse, Inc. on September 7, 2007).
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99.9
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First Amendment to Stock Purchase Agreement, dated as of September 5, 2007,
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II-3
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Exhibit Number
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Document Description
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between BabyUniverse, Inc., on the one hand, and Janus Investment Fund on behalf
of its series Janus Venture Fund, Janus Capital Funds plc on behalf of its series
US Venture Fund, and Small Cap Growth Portfolio, a series of Ohio National Fund,
Inc. (incorporated by reference to Exhibit 99.11 to the Registration Statement on
Form S-4/A (File No. 333-143765) filed by BabyUniverse, Inc. on September 7,
2007).
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*
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To be filed, if necessary, subsequent to the effectiveness of this registration statement, by an
amendment to this registration statement or incorporated by reference pursuant to a Current Report on
Form 8-K in connection with an underwritten offering.
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Item 17. Undertakings.
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(a)
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The undersigned registrant (the “Registrant”) hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
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(ii)
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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 Securities and Exchange
Commission 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;
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(iii)
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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;
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provided; however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Securities and
Exchange 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 Registration
Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the Registration Statement.
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(2)
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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.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933 to
any purchaser, if the registrant is subject to Rule 430C, 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,
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II-4
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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.
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(b)
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The 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.
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(c)
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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 Securities Act of 1933 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 of 1933 and will be governed by
the final adjudication of such issue.
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II-5
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-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Denver, State of Colorado on October 30, 2007.
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BABYUNIVERSE, INC.
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By:
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/s/ MICHAEL J. WAGNER
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Michael J. Wagner
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints each of John C. Textor and Michael J. Wagner, or either of them, each acting alone, his or
her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his or her name, place and stead, in any and all capacities, in connection
with the registrant’s registration statement on Form S-3 under the Securities Act of 1933,
including to sign the registration statement in the name and on behalf of the registrant or on
behalf of the undersigned as a director or officer of the registrant, and any and all amendments or
supplements to the registration statement, including any and all stickers and post-effective
amendments or supplements to the registration statement and to sign any and all additional
registration statements relating to the same offerings of securities as those that are covered by
the registration statement that are filed pursuant to Rule 462(b) under the Securities Act of 1933,
and to file the same, with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission and any applicable securities exchange or securities
self-regulatory body, granting unto said attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
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.
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Signature
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Title(s)
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Date
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Michael J. Wagner
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Chief Executive Officer
(Principal Executive Officer) and
Director
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October 30, 2007
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John C. Textor
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Chairman of the Board of Directors
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October 30, 2007
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Barry Hollingsworth
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Chief Financial Officer
(Principal Financial and
Accounting Officer)
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October 30, 2007
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II-6
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Signature
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Title(s)
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Date
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Pam Abrams
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Director
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October 30, 2007
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John Schaefer
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Director
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October 30, 2007
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Lauren Krueger
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Director
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October 30, 2007
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Edward Ulbrich
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Director
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October 30, 2007
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Frank Rosales
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Director
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October 30, 2007
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II-7
EXHIBIT INDEX
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Exhibit Number
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Document Description
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1.1
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*
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4.1
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Specimen Common Stock certificate (incorporated by reference to the identically
numbered exhibit in BabyUniverse, Inc.’s Registration Statement on Form S-1/A —
Registration Number 333-124395).
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5.1
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Legal opinion of Akerman Senterfitt.
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23.1
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Consent of Singer Lewak Greenbaum & Goldstein LLP, Independent Registered Public
Accounting Firm.
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23.2
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Consent of Lieberman & Associates, P.A., Independent Registered Public Accounting
Firm.
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23.3
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
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23.4
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Consent of Akerman Senterfitt (included in Exhibit 5.1 hereto).
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24.1
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Power of Attorney (included on the signature page of this registration statement).
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99.1
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Securities Purchase Agreement, dated as of May 24, 2007, between BabyUniverse,
Inc. and Pequot Proprietary Risk Allocation Fund, L.P. (incorporated by reference
to Exhibit 99.3 to the Registration Statement on Form S-4/A (File No. 333-143765)
filed by BabyUniverse, Inc. on July 23, 2007).
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99.2
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Securities Purchase Agreement, dated as of May 24, 2007, between BabyUniverse,
Inc. and Pequot DM Fund, L.P. (incorporated by reference to Exhibit 99.4 to the
Registration Statement on Form S-4/A (File No. 333-143765) filed by BabyUniverse,
Inc. on July 23, 2007).
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99.3
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Stock Purchase Agreement, dated as of June 13, 2007, between BabyUniverse, Inc.
and Plus Four Private Equities, LP (incorporated by reference to Exhibit 99.6 to
the Registration Statement on Form S-4/A (File No. 333-143765) filed by
BabyUniverse, Inc. on July 23, 2007).
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99.4
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Stock Purchase Agreement, dated as of July 6, 2007, between BabyUniverse, Inc.
and Pequot Proprietary Risk Allocation Fund, L.P. (incorporated by reference to
Exhibit 99.7 to the Registration Statement on Form S-4/A (File No. 333-143765)
filed by BabyUniverse, Inc. on July 23, 2007).
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99.5
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Stock Purchase Agreement, dated as of July 6, 2007, between BabyUniverse, Inc.
and Pequot DM Fund, L.P. (incorporated by reference to Exhibit 99.8 to the
Registration Statement on Form S-4/A (File No. 333-143765) filed by BabyUniverse,
Inc. on July 23, 2007).
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99.6
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Stock Purchase Agreement, dated as of June 13, 2007, between BabyUniverse, Inc.,
on the one hand, and Janus Investment Fund on behalf of its series Janus Venture
Fund, Janus Capital Funds plc on behalf of its series Janus US Venture Fund, and Small
Cap Growth Portfolio, a series of Ohio National Fund, Inc. (incorporated by
reference to Exhibit 99.5 to the Registration Statement on Form S-4/A (File No.
333-143765) filed by BabyUniverse, Inc. on July 23, 2007).
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II-8
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Exhibit Number
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Document Description
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99.7
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Subscription Agreement, dated as of August 30, 2007, between BabyUniverse, Inc.
and CIBC World Markets Corp. (incorporated by reference to Exhibit 99.9 to the
Registration Statement on Form S-4/A (File No. 333-143765) filed by BabyUniverse,
Inc. on September 7, 2007).
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99.8
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Subscription and Loan Satisfaction Agreement, dated as of September 5, 2007,
between BabyUniverse, Inc. and Lydian Trust Company (incorporated by reference to
Exhibit 99.10 to the Registration Statement on Form S-4/A (File No. 333-143765)
filed by BabyUniverse, Inc. on September 7, 2007).
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99.9
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First Amendment to Stock Purchase Agreement, dated as of September 5, 2007,
between BabyUniverse, Inc., on the one hand, and Janus Investment Fund on behalf
of its series Janus Venture Fund, Janus Capital Funds plc on behalf of its series
US Venture Fund, and Small Cap Growth Portfolio, a series of Ohio National Fund,
Inc. (incorporated by reference to Exhibit 99.11 to the Registration Statement on
Form S-4/A (File No. 333-143765) filed by BabyUniverse, Inc. on September 7,
2007).
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*
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To be filed, if necessary, subsequent to the effectiveness of this registration statement, by an
amendment to this registration statement or incorporated by reference pursuant to a Current Report on
Form 8-K in connection with an underwritten offering.
|
II-9
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