As filed with the Securities and Exchange Commission on January 23, 1997
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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DAY RUNNER, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
95-3624280
(I.R.S. Employer Identification No.)
15295 Alton Parkway
Irvine, California
(Address of Principal Executive Offices)
92718
(Zip Code)
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1995 STOCK OPTION PLAN
WARRANTS TO PURCHASE COMMON STOCK
(Full titles of the plans)
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MARK A. VIDOVICH
Chief Executive Officer
Day Runner, Inc.
15295 Alton Parkway
Irvine, California 92718
(714) 680-3500
(Name, address and telephone number of agent for service)
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Copy to:
RONALD W. BUCKLY, ESQ.
Bryan Cave LLP
120 Broadway, Suite 500
Santa Monica, California 90401
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CALCULATION OF REGISTRATION FEE
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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 ............................ 200,000 $ 18.75 (1) $ 3,750,000 (1) $ 1,137
Common Stock, $0.001 par value ............................ 125,000 (2) $ 23.5625 $ 2,945,313 $ 893
---------------- --------------- --------------- ---------------
TOTAL ............................................. 325,000 $ 2,030
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<FN>
(1) 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 January 17, 1997 as reported by
The Nasdaq Stock Market in "The Wall Street Journal".
(2) Represents shares issuable upon the exercise of outstanding warrants to purchase an aggregate of 125,000 shares of the Company's
Common Stock.
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(i)
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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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, 1996.
Item 3(b)
The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996.
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.
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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.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number
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5.1 Opinion of Bryan Cave LLP
10.1 Amendment No. 1 dated as of October 21, 1996 to
1995 Stock Option Plan
10.2 Form of Warrant to purchase 25,000 shares of the
Registrant's Common Stock and Schedule of
Warrantholders
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)
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.
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(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.
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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 January 23, 1997.
DAY RUNNER, INC.
By: /s/ Mark A. Vidovich
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Mark A. Vidovich, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Mark A. Vidovich 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 and January 23, 1997
- ------------------------------ Chief Executive Officer
Mark A. Vidovich (Principal Executive Officer)
/s/ Dennis K. Marquardt Executive Vice President, January 23, 1997
- ------------------------------ Finance & Administration,
Dennis K. Marquardt Chief Financial Officer and
Corporate Secretary
(Principal Financial and
Accounting Officer)
/s/ James P. Higgins Director January 23, 1997
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James P. Higgins
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Signature Title Date
- ------------------------------ ------------------------------ ----------------
/s/ Jill Tate Higgins Director January 23, 1997
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Jill Tate Higgins
/s/ Charles Miller Director January 23, 1997
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Charles Miller
/s/ Alan R. Rachlin Director January 23, 1997
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Alan R. Rachlin
/s/ Boyd I. Willat Director January 23, 1997
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Boyd I. Willat
/s/ Felice Willat Director January 23, 1997
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Felice Willat
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INDEX TO EXHIBITS
Exhibit Number Exhibit
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5.1 Opinion of Bryan Cave LLP
10.1 Amendment No. 1 dated as of October 21, 1996 to 1995 Stock
Option Plan
10.2 Form of Warrant to purchase 25,000 shares of the Registrant's
Common Stock and Schedule of Warrantholders
23.1 Consent of Deloitte & Touche LLP