SCHEDULE
13D
|
CUSIP
No.
056332109
|
|
Page
2
of
12 Pages
|
|
|
NAME
OF REPORTING PERSON
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
D.
E. Shaw Laminar Acquisition Holdings 3, L.L.C.
FEIN
26-0856720
|
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
|
|
3
|
SEC
USE ONLY
|
|
4
|
SOURCE
OF FUNDS*
SC
(See Item 3)
|
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS
2(d)
or 2(e)
o
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
|
|
7
|
SOLE
VOTING POWER
0
(See Item 5)
|
|
|
8
|
SHARED
VOTING POWER
15,289,378
(See Item 5)
|
|
|
9
|
SOLE
DISPOSITIVE POWER
0
(See Item 5)
|
|
|
10
|
SHARED
DISPOSITIVE POWER
15,289,378
(See Item 5)
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,289,378
(See Item 5)
|
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
o
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.33%
(See Item 5)
|
|
14
|
TYPE
OF REPORTING PERSON*
OO
(See Item 2)
|
SCHEDULE
13D
|
CUSIP
No.
056332109
|
|
Page
3 of 12 Pages
|
|
1
|
NAME
OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON
D.
E. Shaw & Co., L.L.C.
FEIN
13-3799946
|
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
|
|
3
|
SEC
USE ONLY
|
|
4
|
SOURCE
OF FUNDS
AF
(See Item 3)
|
|
5
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or
2(e)
o
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
|
|
7
|
SOLE
VOTING POWER
0
(See Item 5)
|
|
|
8
|
SHARED
VOTING POWER
15,289,378
(See Item 5)
|
|
|
9
|
SOLE
DISPOSITIVE POWER
0
(See Item 5)
|
|
|
10
|
SHARED
DISPOSITIVE POWER
15,289,378
(See Item 5)
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,289,378
(See Item 5)
|
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
o
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.33
% (See Item 5)
|
|
14
|
TYPE
OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
(See Item 2)
|
SCHEDULE
13D
|
CUSIP
No.
056332109
|
|
Page
4 of 12 Pages
|
|
1
|
NAME
OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON
D.
E. Shaw & Co., L.P.
FEIN
13-3695715
|
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
|
|
3
|
SEC
USE ONLY
|
|
4
|
SOURCE
OF FUNDS
AF
(See Item 3)
|
|
5
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or
2(e)
o
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
|
|
7
|
SOLE
VOTING POWER
0
(See Item 5)
|
|
|
8
|
SHARED
VOTING POWER
15,289,378
(See Item 5)
|
|
|
9
|
SOLE
DISPOSITIVE POWER
0
(See Item 5)
|
|
|
10
|
SHARED
DISPOSITIVE POWER
15,289,378
(See Item 5)
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,289,378
(See Item 5)
|
|
12
|
CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
o
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.33
% (See Item 5)
|
|
14
|
TYPE
OF REPORTING PERSON (SEE INSTRUCTIONS)
IA,
PN (See Item 2)
|
SCHEDULE
13D
|
CUSIP
No.
056332109
|
|
Page
5 of 12 Pages
|
|
1
|
NAME
OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON
David
E. Shaw
|
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
|
|
3
|
SEC
USE ONLY
|
|
4
|
SOURCE
OF FUNDS
AF
(See Item 3)
|
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d)
or 2(e)
o
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States
|
|
|
7
|
SOLE
VOTING POWER
0
(See Item 5)
|
|
|
8
|
SHARED
VOTING POWER
15,289,378
(See Item 5)
|
|
|
9
|
SOLE
DISPOSITIVE POWER
0
(See Item 5)
|
|
|
10
|
SHARED
DISPOSITIVE POWER
15,289,378
(See Item 5)
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,289,378
(See Item 5)
|
|
12
|
CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
o
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.33
% (See Item 5)
|
|
14
|
TYPE
OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
|
Item
1. Security and Issuer
This
Amendment No. 2 (the “Second Amendment”) amends and restates the Schedule 13D
filed on March 23, 2007, as so amended by Amendment No. 1, dated as of September
12, 2007 (as amended, the “Schedule 13D”), with the Securities and Exchange
Commission (the “Commission”), by certain of the Reporting Persons (as defined
below), with respect to the common stock, par value $.001 per share
(“BabyUniverse Common Stock”), of BabyUniverse, Inc., a Florida corporation
(“BabyUniverse” or the “Issuer”), and is being filed pursuant to Rule 13d-2
under the Securities Exchange Act of 1934, as amended.
Item
2. Identity and Background
The
description contained herein amends and restates Item 2 in the Schedule
13D.
(a)
This
statement is filed on behalf of D. E. Shaw Laminar Acquisition Holdings 3,
L.L.C., a Delaware limited liability company (“Laminar Acquisition”), D. E. Shaw
& Co., L.L.C., a Delaware limited liability company (“DESCO LLC”), D. E.
Shaw & Co., L.P., a Delaware limited partnership (“DESCO LP”) and David E.
Shaw, a citizen of the United States of America (David E. Shaw, and together
with Laminar Acquisition, DESCO LP and DESCO LLC, the “Reporting Persons”). The
Reporting Persons are filing jointly and the agreement among the Reporting
Persons to file jointly is attached hereto as Exhibit 99.6 and incorporated
herein by reference.
(b)
The
address of the principal office of each of each of the Reporting Persons is
120
West Forty-Fifth Street, 39th Floor, Tower 45, New York, NY 10036.
(c)
Laminar
Acquisition is a limited liability company formed for the purpose of holding
BabyUniverse Common Stock following the Merger. Laminar Acquisition has no
executive officers or directors. The principal business of DESCO LLC is to
act
as manager to certain funds and other entities, including Laminar Acquisition.
The principal business of DESCO LP is to act as an investment adviser to certain
funds and other entities, including Laminar Acquisition. D. E. Shaw & Co.,
Inc., a Delaware corporation (“DESCO, Inc.”), is the general partner of DESCO
LP. D. E. Shaw & Co. II, Inc., a Delaware corporation (“DESCO II, Inc.”), is
the managing member of DESCO LLC. David E. Shaw is the president and sole
shareholder of DESCO, Inc. and DESCO II, Inc.
(d)
and
(e) During the last five years, no Reporting Person has been (i) convicted
in a
criminal proceeding (excluding traffic violations or similar misdemeanors)
or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject
to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violations with respect to such laws.
(f)
David
E.
Shaw is a citizen of the United States of America.
Item
3. Source and Amount of Funds or Other Consideration
The
description contained herein amends and restates Item 3 in the Schedule
13D.
On
October 12, 2007, eToys Direct, Inc. (“eToys”) consummated the merger
contemplated by the Agreement and Plan of Merger, dated as of March 13, 2007
(as
amended, the “Merger Agreement”), with BabyUniverse and Baby Acquisition Sub,
Inc., a Delaware corporation and wholly-owned subsidiary of BabyUniverse
(“Merger Sub”), pursuant to which Merger Sub merged (the “Merger”) with and into
eToys, with eToys continuing as the surviving corporation (“Surviving
Corporation”).
In
the
Merger, each eToys stockholder, including Laminar Acquisition, received, for
each share of eToys common stock held by such stockholder, .4654073 shares
of
BabyUniverse Common Stock. The consideration paid by BabyUniverse to eToys
stockholders pursuant to the Merger Agreement was delivered through the issuance
of additional authorized shares of BabyUniverse Common Stock.
At
the
effective time of the Merger (the “Effective Time”), (i) the directors of the
Surviving Corporation were the same as the directors of eToys immediately prior
to the Merger (except that Julius Gaudio and Daniel Posner resigned as directors
of eToys), (ii) the officers of the Surviving Corporation were the same as
the
officers of eToys immediately prior to the Merger, (iii) the certificate of
incorporation of eToys, as in effect immediately prior to the Effective Time,
was amended as of the Effective Time so as to contain the provisions, and only
the provisions, contained in the certificate of incorporation of Merger Sub
immediately prior to the Effective Time, (iv) the bylaws of Merger Sub are
the
same as the bylaws of the Surviving Corporation.
At
the
Effective Time, the board of directors of BabyUniverse was comprised of seven
members, of which BabyUniverse designated three members and eToys designated
four members. Prior to the Merger, certain affiliates of the Reporting
Persons
were
the legal and the beneficial owners of (i) all of the issued and outstanding
shares of preferred stock of eToys and (ii) 77.5% of the issued and outstanding
common stock of eToys, and as a result controlled eToys. Such shares were
transferred to Laminar Acquisition immediately prior to consummation of the
Merger.
The
above
description of the Merger Agreement does not purport to be complete and is
qualified in its entirety by reference to the Merger Agreement, which is
referenced herein as Exhibit 99.1 and is incorporated by reference into this
Item 3.
Item
4. Purpose of Transaction
The
description contained herein amends and restates Item 4 in the Schedule
13D.
Laminar
Acquisition has had and may continue to have discussions with BabyUniverse
and
other investors concerning BabyUniverse. Subject in each case to applicable
law,
Laminar Acquisition intends to continue to review its investment in BabyUniverse
from time to time. Depending upon certain factors, including without limitation
the financial performance of BabyUniverse, the availability and price of the
shares of BabyUniverse Common Stock, or other securities related to
BabyUniverse, and other general market and investment conditions, Laminar
Acquisition may at any time and from time to time (as permitted by applicable
law) acquire through open market purchases or otherwise additional shares of
BabyUniverse Common Stock, sell through the open market or otherwise shares
of
BabyUniverse Common Stock, or otherwise engage or participate in a transaction
or series of transactions with the purpose or effect of influencing control
of
BabyUniverse. There can be no assurance, however, that Laminar Acquisition
or
any other Reporting Persons will take any such action. As a result of owning
approximately 63.33% of the issued and outstanding shares of BabyUniverse Common
Stock as of October 12, 2007, Laminar Acquisition
is
able to exercise significant influence over BabyUniverse, including with respect
to the election of the directors of BabyUniverse, offers to acquire BabyUniverse
and other matters submitted to a vote of BabyUniverse shareholders.
Other
than as described above, none of the Reporting Persons has any current plans
or
proposals which relate to or would result in: (a) the acquisition by any person
of additional securities of BabyUniverse, or the disposition of securities
of
BabyUniverse; (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving BabyUniverse or any of its
subsidiaries; (c) a sale or transfer of a material amount of assets of
BabyUniverse or any of its subsidiaries; (d) any change in the present board
of
directors of BabyUniverse, including any plans or proposals to change the number
or term of directors or to fill any existing vacancies on the board or the
management of BabyUniverse; (e) any material change in the present
capitalization or dividend policy of BabyUniverse; (f) any other material change
in BabyUniverse’s business or corporate structure; (g) changes in BabyUniverse’s
charter, bylaws or instruments corresponding thereto or other actions which
may
impede the acquisition of control of BabyUniverse by any person; (h) causing
a
class of securities of BabyUniverse to be delisted from a national securities
exchange or to cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association; (i) a class of equity
securities of BabyUniverse becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar
to
any of those enumerated above (although the Reporting Persons reserve the right
to develop such plans).
Item
5. Interest in Securities of the Issuer
The
description contained herein amends and restates Item 5 in the Schedule
13D.
(a)
and
(b). Laminar Acquisition is the legal and the beneficial owner of
15,289,378
shares
of BabyUniverse Common Stock (the “BabyUniverse Shares”) representing
approximately 63.33% of the issued and outstanding shares of BabyUniverse Common
Stock (based on 24,141,250 shares of BabyUniverse Common Stock outstanding
immediately after the Effective Time as reported in BabyUniverse’s Current
Report on Form 8-K filed with the Securities and Exchange Commission on October
18, 2007). DESCO LP as Laminar Acquisition’s investment adviser and DESCO LLC as
Laminar Acquisition’s manager may also be deemed to have the shared power to
vote or direct the vote (and the shared power to dispose or direct the disposal
of) the BabyUniverse Shares. As managing member of DESCO LLC, DESCO II, Inc.
may
be deemed to have the shared power to vote or to direct the vote (and the shared
power to dispose or direct the disposal of) the BabyUniverse Shares. As general
partner of DESCO LP, DESCO, Inc. may be deemed to have the shared power to
vote
or to direct the vote (and the shared power to dispose or direct the disposal
of) the BabyUniverse Shares. None of DESCO LLC, DESCO LP, DESCO, Inc., or DESCO
II, Inc., owns any of the BabyUniverse Shares directly and each such entity
disclaims beneficial ownership of the BabyUniverse Shares.
David
E.
Shaw does not own any of the BabyUniverse Shares directly. By virtue of David
E.
Shaw’s position as president and sole shareholder of DESCO, Inc., which is the
general partner of DESCO LP, and by virtue of David E. Shaw’s position as
president and sole shareholder of DESCO II, Inc., which is the managing member
of DESCO LLC, David E. Shaw may be deemed to have the shared power to vote
or
direct the vote (and the shared power to dispose or direct the disposal of)
the
BabyUniverse Shares and, therefore, David E. Shaw may be deemed to be the
indirect beneficial owner of the BabyUniverse Shares. David E. Shaw disclaims
beneficial ownership of the BabyUniverse Shares.
(c).
Other than the acquisition of the BabyUniverse Shares in the Merger pursuant
to
the Merger Agreement, no Reporting Person has effected any transaction in the
shares of BabyUniverse Common Stock during the past 60 days.
(d)
and
(e). Not applicable.
Item
6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
The
description contained herein amends and restates Item 6 in the Schedule
13D.
The
information set forth in Item 3 hereof is hereby incorporated by reference
into
this Item 6.
Other
than as described in this Item 6 and in Item 3 above, and in the documents
incorporated by reference therein and set forth as exhibits hereto, there are
no
contracts, arrangements, or understandings or relationships (legal or otherwise)
among the Reporting Persons named in Item 2 and between such persons and any
other persons with respect to any securities of the Issuer.
On
October 12, 2007, BabyUniverse entered into a registration rights agreement
(the
“Registration Rights Agreement”)
with
Laminar Acquisition, Michael J. Wagner,
the
Chief
Executive Officer of BabyUniverse and a former stockholder of eToys
,
John
C.
Textor, the Chairman of the Board of BabyUniverse, and three entities controlled
by Mr. Textor, Wyndcrest BabyUniverse Holdings, LLC, Wyndcrest BabyUniverse
Holdings II, LLC and Wyndcrest BabyUniverse Holdings III, LLC.
P
ursuant
to the terms of the Registration Rights Agreement:
|
|
·
|
Laminar
Acquisition and Mr. Wagner were granted, with respect to shares of
BabyUniverse Common Stock issued to them in the Merger, an aggregate
of
three demand registration rights, as well as unlimited rights to
include
such shares in any registration statement filed by BabyUniverse of
its own
volition or at the request of another shareholder having the right
to make
such a request;
|
|
|
·
|
Mr.
Textor and the three controlled Wyndcrest entities were granted an
aggregate of two demand registration rights with respect to the shares
of
BabyUniverse Common Stock held by them, as well as unlimited rights
to
include such shares in any registration statement filed by BabyUniverse
of
its own volition or at the request of another shareholder having
the right
to make such a request;
|
|
|
·
|
each
of Mr. Textor and the three controlled Wyndcrest entities agreed
that such
person or entity would not transfer any shares of BabyUniverse Common
Stock, except in connection with the grant of a security interest
pursuant
to a bona fide lending transaction, during the period ending on the
earlier to occur of (i) the second anniversary of the consummation
of the
Merger and (ii) the receipt by Mr. Wagner and Laminar Acquisition
of an
aggregate of $40 million in proceeds from the sale of shares of
BabyUniverse Common Stock. Notwithstanding the foregoing, Mr. Textor
and
the three controlled Wyndcrest entities will be able to sell shares
of
BabyUniverse Common Stock during this restricted period on the following
terms: (i) pursuant to the registration rights granted under the
Registration Rights Agreement, beginning on or after the first anniversary
of the consummation of the Merger; (ii) pursuant to Rule 144 under
the
Securities Act of 1933 (without giving effect to the provisions of
Rule
144(k)), beginning on the date that is six months following the
consummation of the Merger; and (iii) in a private sale to a third
party,
beginning on the date that is six months following the consummation
of the
Merger, provided that in connection with any such private sale Mr.
Wagner
and Laminar Acquisition have the right to participate in such sale,
with
the shares to be sold by each participant allocated pro rata based
on the
number of shares of BabyUniverse Common Stock owned by each sale
participant; and
|
|
|
·
|
Mr.
Textor and the three controlled Wyndcrest entities are entitled to
a
similar right to participate in certain private sales by Mr. Wagner
and
Laminar Acquisition of shares of BabyUniverse Common Stock.
|
On
October 12, 2007, Laminar Acquisition entered into a joinder to the Merger
Agreement (the “Joinder Agreement”) pursuant to which Laminar Acquisition became
a party to and bound by and subject to all of the terms, liabilities, and
obligations pertaining to the Former Company Stockholders (as defined in the
Merger Agreement) in Article X of the Merger Agreement, entitled
“Indemnification”, as if it were an original signatory thereto with respect to
such terms, liabilities and obligations.
The
descriptions of the Registration Rights Agreement and the Joinder Agreement
contained herein do not purport to be complete and are qualified in their
entirety by the terms and conditions of each such agreement, which are
incorporated herein by reference in response to this Item 6 and which are
attached as Exhibit 99.2 and 99.3 to this Schedule 13D.
Item
7. Material to be Filed as Exhibits
|
Exhibit
|
Description
|
|
99.1
|
Agreement
and Plan of Merger, dated as of March 13, 2007, by and among BabyUniverse,
Inc., Baby Acquisition Sub, Inc., and eToys Direct, Inc. (Incorporated
herein by reference to exhibit 99.1 of the Issuer’s Schedule 13D filed on
March 23, 2007)
|
|
|
|
|
99.2
|
Registration
Rights Agreement, dated as of October 12, 2007, by and among BabyUniverse,
Inc. and the individuals and parties listed on Schedule A
thereto.
|
|
|
|
|
99.3
|
Joinder
Agreement, dated as of October 12, 2007, by and among BabyUniverse,
Inc.
and D. E. Shaw Laminar Acquisition Holdings 3, L.L.C.
|
|
|
|
|
99.4
|
Power
of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co.,
Inc. in favor of certain of the signatories thereto, among others,
dated
February 24, 2004. (Incorporated herein by reference to exhibit 99.3
of
the Issuer’s Schedule 13D filed on March 23, 2007)
|
|
|
|
|
99.5
|
Power
of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co. II,
Inc. in favor of certain of the signatories thereto, among others,
dated
February 24, 2004. (Incorporated herein by reference to exhibit 99.4
of
the Issuer’s Schedule 13D filed on March 23, 2007)
|
|
|
|
|
99.6
|
Joint
Filing Agreement by and among the Reporting Persons, dated as of
October
18, 2007.
|
SIGNATURES
After
reasonable inquiry and to the best of each of the undersigned's knowledge and
belief, each of the undersigned, severally and not jointly, certifies that
the
information set forth in this statement is true, complete and correct. Powers
of
Attorney, dated February 24, 2004, granted by David E. Shaw in favor of Anne
Dinning, Julius Gaudio, Lou Salkind, Stuart Steckler and Eric Wepsic are
attached hereto as Exhibit 99.4 and Exhibit 99.5 and incorporated herein by
reference.
Dated:
October 18, 2007
|
|
|
|
|
|
D.
E. SHAW LAMINAR
ACQUISITION HOLDINGS 3, L.L.C.
|
|
|
By: D. E. Shaw & Co., L.L.C., as
Manager
|
|
|
|
|
|
|
By: /s/ Julius
Gaudio
|
|
|
Name:
Julius Gaudio
|
|
|
Title:
Managing Director
|
|
|
|
|
|
|
D. E. SHAW & CO.,
L.P.
|
|
|
|
|
|
By:
|
/s/ Julius
Gaudio
|
|
|
Name:
Julius Gaudio
|
|
|
Title:
Managing Director
|
|
|
|
|
|
|
D.
E. SHAW &
CO., L.L.C.
|
|
|
|
|
|
By:
|
/s/ Julius
Gaudio
|
|
|
Name:
Julius Gaudio
|
|
|
Title:
Managing Director
|
|
|
|
|
|
|
DAVID
E.
SHAW
|
|
|
|
|
|
By:
|
/s/ Julius
Gaudio
|
|
|
Name:
Julius Gaudio
|
|
|
Title:
Attorney-in-Fact for David E. Shaw
|