As filed with the Securities and Exchange Commission on December 16, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DAY RUNNER, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-3624280
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15295 Alton Parkway
Irvine, California 92618
(Address of Principal Executive Offices) (Zip Code)
1995 STOCK OPTION PLAN
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
WARRANTS TO PURCHASE COMMON STOCK
(Full titles of the plans)
JAMES E. FREEMAN, JR.
Chief Executive Officer
Day Runner, Inc.
15295 Alton Parkway
Irvine, California 92618
(714) 680-3500
(Name, address and telephone number of agent for service)
Copy to:
KATHERINE F. ASHTON, ESQ.
Bryan Cave LLP
120 Broadway, Suite 300
Santa Monica, California 90401
CALCULATION OF REGISTRATION FEE
Proposed
Title of Amount Proposed Maximum
Securities of Shares Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered per Share Price Fee
---------- ---------- --------- ----- ---
Common Stock,
$0.001 par value 525,000(1) $19.625(2) $10,303,125(2) $3,039
Common Stock,
$0.001 par value 25,000(3) $20.625 $515,625 $153
TOTAL 550,000 $3,192
======= =====
(1) Represents 375,000 shares issuable upon the exercise of options granted or
to be granted under the Company's 1995 Stock Option Plan and 150,000 shares
issuable upon the exercise of options granted or to be granted under the
Company's Non-Employee Director Stock Option Plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
amount of the registration fee on the basis of the average of the high and
low reported sales prices of a share of the Company's Common Stock on
December 11, 1998, as reported by The Nasdaq Stock Market in The Wall
Street Journal.
(3) Represents shares issuable upon the exercise of outstanding warrants to
purchase an aggregate of 25,000 shares of the Company's Common Stock at an
exercise price of $20.625 per share.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Items 1 and 2
of Part I of Form S-8 will be sent or given to plan participants as specified in
Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed
with the Commission as part of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
Item 3(a)
The Registrant's Annual Report on Form 10-K for the year ended
June 30, 1998.
Item 3(b)
The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998.
The Registrant's Current Report on Form 8-K filed with the
Commission on November 12, 1998.
Item 3(c)
The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1 (Registration No.
33-45391), as amended by the Registrant's Current Report on Form
8-K filed with the Commission on August 5, 1993, including any
amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Sections 145(a) and 145(b) of the Delaware General Corporation Law permit a
corporation to indemnify any person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement or actually and
reasonably incurred by such person in connection with any threatened, pending or
completed nonderivative action and against expenses (including attorneys' fees)
actually and reasonably incurred in connection with any threatened, pending or
completed derivative action if such person was or is a party or was threatened
to be made a party to such action by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation. Any
indemnification shall be made if a determination in each instance is made either
by a majority vote of the Board of Directors (other than directors who are
parties to such action) even though less than a quorum, by the stockholders, or
by independent legal counsel in a written opinion, that such indemnification is
proper because the director, officer, employee or agent acted in good faith and
in a manner that such person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, that such person had no reasonable cause to believe that his conduct
was unlawful. However, no indemnification may be made with respect to a
derivative action if such person is adjudged to be liable to the corporation,
unless and only to the extent that the Delaware Court of Chancery or the court
in which the action was brought determines upon application that, despite the
adjudication of liability but in view of all the circumstances, such person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper. To the extent that a person has been successful in defense of any
action, suit or proceeding, Section 145(c) provides that such person shall be
indemnified against expenses actually and reasonably incurred by such person in
connection therewith. A corporation may also advance expenses incurred in
defending proceedings against an officer or a director upon receipt of an
undertaking by or on behalf of such officer or director to repay such expenses
to the corporation if it is ultimately determined that such officer or director
is not entitled to be indemnified for such expenses. The indemnification and
advancement of expenses provided under the Delaware General Corporation Law are
not exclusive of any other rights to indemnification or advancement of expenses
a person may be entitled to under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Under the terms of Article VIII of the Registrant's Bylaws, the Registrant
is required to indemnify any person who is or was a director or officer of the
Registrant (or is or was serving at the request of the Registrant as a director,
officer, trustee or partner of another corporation, partnership, joint venture,
trust or other enterprise) in the manner and to the fullest extent permitted
under Section 145 of the Delaware General Corporation Law against expenses,
liabilities and other matters covered by or referred to in Section 145.
As permitted by paragraph (7) of subsection (b) of Section 102 of the
Delaware General Corporation Law, Article VIII of the Registrant's Certificate
of Incorporation provides that no director of the Registrant shall be liable to
the Registrant or its stockholders for monetary damages for breach of his or her
fiduciary duty as a director except for liability (a) for breach of the
director's duty of loyalty to the corporation or its stockholders; (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (c) under Section 174 of the Delaware General
Corporation Law (relating to unlawful declarations or payments of dividends or
unlawful stock purchases or redemptions); or (d) for any transaction from which
the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number
5.1 Opinion of Bryan Cave LLP
10.1 Amendment No. 3 to 1995 Stock Option Plan
10.2 Non-Employee Director Stock Option Plan
10.3 Form of Warrant dated April 20, 1998 to purchase shares of the
Registrant's Common Stock and Schedule of Warrantholders(1)
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Bryan Cave LLP(included in Exhibit 5.1)
24.1 Power of Attorney (see page 5 of this Registration Statement)
(1) Incorporated by reference to the Registrant's Annual Report on Form 10-K
(File No. 0-19835) as filed with the Commission on September 30, 1998.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) 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.
(b) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on December 16, 1998.
DAY RUNNER, INC.
By: /s/ James E. Freeman, Jr.
---------------------------
James E. Freeman, Jr.,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints James E. Freeman, Jr. his or her
attorney-in-fact and agent, with full power of substitution for him or her and
in his or her name, place and stead, in any and all capacities, to sign any or
all amendments to this Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do so and perform each and every act and thing
requisite and necessary to be done in connection with this Registration
Statement, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, 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.
Signature Title Date
/s/ Mark A. Vidovich Chairman of the Board December 16, 1998
- -----------------------------------------------
Mark A. Vidovich
/s/ James E. Freeman, Jr. Chief Executive Officer and Director
- ------------------------------------------------ (Principal Executive Officer) December 16, 1998
James E. Freeman, Jr.
/s/ Dennis K. Marquardt Executive Vice President, Finance & December 16, 1998
- ----------------------------------------------- Administration and Chief Financial Officer
Dennis K. Marquardt (Principal Financial and Accounting Officer)
/s/ James P. Higgins Director December 16, 1998
- -----------------------------------------------
James P. Higgins
/s/ Jill Tate Higgins Director December 16, 1998
- -----------------------------------------------
Jill Tate Higgins
/s/ Charles Miller Director December 16, 1998
- -----------------------------------------------
Charles Miller
/s/ Alan R. Rachlin Director December 16, 1998
- -----------------------------------------------
Alan R. Rachlin
/s/ Boyd I. Willat Director December 16, 1998
- -----------------------------------------------
Boyd I. Willat
/s/ Felice Willat Director December 16, 1998
- -----------------------------------------------
Felice Willat
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
5.1 Opinion of Bryan Cave LLP..............................................................
10.1 Amendment No. 3 to 1995 Stock Option Plan..............................................
10.2 Non-Employee Director Stock Option Plan................................................
23.1 Consent of Deloitte & Touche LLP.......................................................