<PAGE> 1
As filed with the Securities and Exchange Commission on May 8, 1997
Registration No. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIKERS DREAM, INC.
(Exact name of registrant as specified in its charter)
California 33-0140149
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1995 NON-QUALIFIED STOCK OPTION PLAN
OPTION AGREEMENT WITH DONALD J. DUFFY
OPTION AGREEMENT WITH ROWLAND W. DAY II
(Full title of the plans)
Rowland W. Day II
1420 Village Way
Santa Ana, California 92705
(714) 835-8464
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered(1) Per Share(2) Price(2) Fee(2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
without par value 1,400,000 shares $.71875 $1,006,250 $305
- --------------------------------------------------------------------------------
</TABLE>
(1) The number of shares being registered is the maximum aggregate number
of shares presently issuable under the Plans. The registration
statement also includes an indeterminable number of additional shares
that may become issuable under the Plans pursuant to anti-dilution
provisions.
(2) Computed pursuant to Rule 457(h) on the basis of the average of the
bid and asked price of the Common Stock on May 6, 1997.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of Bikers Dream, Inc., a California
corporation (the "Company") filed with the Securities Exchange Commission are
incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1996, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the Company's fiscal year
ended December 31, 1996.
Any statement contained in a document incorporated in this
Registration Statement by reference shall be deemed to be modified or
superseded for the purpose of this Registration Statement to the extent that a
statement contained in this Registration Statement or in any other document
subsequently filed pursuant to Sections 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, which also is or is deemed to be incorporated in this
Registration Statement by reference modifies or replaces such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's Articles of Incorporation authorizes the issuance of
25,000,000 shares of Common Stock without par value. Holders of shares of
Common Stock are entitled to one vote for each share on all matters to be voted
on by the shareholders and, upon the giving of notice as required by law, are
entitled to cumulate their votes in the election of directors. Holders of
shares of Common Stock are entitled to share ratably in dividends, if any, as
may be declared, from time to time by the Board by Directors in its discretion,
from funds legally available therefor, subject to preferences that may be
applicable to any outstanding preferred stock. In the event of liquidation,
dissolution or winding up of the Company, the holders of shares of Common Stock
are entitled to share pro rata all assets remaining after payment in full of
all liabilities, subject to preferences that may be applicable to any
outstanding preferred stock. Holders of Common Stock have no preemptive or
other subscription rights, and there are no conversion rights or redemption or
sinking fund provisions with respect to such shares.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The legality of the Registrant's securities being registered will be
passed upon by Day Campbell & McGill. Members of the firm of Day Campbell &
McGill owned an aggregate of 627,183 shares of the Registrant's Common Stock
and options to purchase 730,000 shares of the Registrant's Common Stock on
March 31, 1997.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws and Section 317 of the California General
Corporation Law provide for indemnification of directors and officers against
certain liabilities. Officers and directors of the Company are indemnified
generally against expenses, judgments, fines and other amounts actually and
reasonably incurred in connection with actions, suits or proceedings, whether
civil or criminal, provided that it is determined that they acted in good faith
and in a manner they reasonably believed to be in the best interests of the
Company, and, in any criminal matter, had reasonable cause to believe that
their conduct was not unlawful.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act of 1933, as amended (the "Securities
Act") and is therefore unenforceable.
II-2
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
5 Opinion of Day, Campbell and McGill as to the legality of the securities being registered.
10.23 The 1995 Non-Qualified Stock Option Plan.*
10.25 Option Agreement dated September 9, 1996 between the Company and
Donald J. Duffy.
10.26 Option Agreement dated September 9, 1996 between the Company and
Rowland W. Day II.
23.1 Consent of Singer, Lewak, Greenbaum & Goldstein LLP
23.2 Consent of Coopers & Lybrand, L.L.P.
23.3 Consent of Day, Campbell and McGill (included in its opinion filed as Exhibit 5).
</TABLE>
_____________________________
*Incorporated by reference to the Company's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1995.
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; 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 that information in the
registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3 or Form S-8, and 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.
II-3
<PAGE> 4
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders that
is incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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 Santa Ana, State of California, on May 7, 1997.
BIKERS DREAM, INC.
By: /s/ Rowland W. Day II
---------------------------------------------
Rowland W. Day II, Co-Chief Executive Officer
II-4
<PAGE> 5
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Rowland W. Day II, Secretary of the registrant, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective 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 and any other regulatory authority, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in- fact and agent, or his 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.
<TABLE>
<CAPTION>
Date Signature Title
- ---- --------- -----
<S> <C> <C>
May 7, 1997 /s/ Rowland W. Day II Co-Chief Executive Officer and Director
----------------------------------
Rowland W. Day II
May 7, 1997 /s/ Donald J. Duffy Co-Chief Executive Officer, Chief
---------------------------------- Financial Officer (principal financial
Donald J. Duffy officer) and Director
May 7, 1997 /s/ Owen Naccarato Controller
----------------------------------
Owen Naccarato
</TABLE>
II-5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-----------
<S> <C>
5 Opinion of Day Campbell & McGill as to the legality of
securities being registered.
10.23 The 1995 Non-Qualified Stock Option Plan*
10.25 Option Agreement dated September 9, 1996 between the
Company and Donald J. Duffy.
10.26 Option Agreement dated September 9, 1996 between the
Company and Rowland W. Day II.
23.1 Consent of Singer, Lewak, Greenbaum & Goldstein LLP
23.2 Consent of Coopers & Lybrand, L.L.P.
23.3 Consent of Day Campbell & McGill (included in its Opinion filed
as Exhibit 5).
</TABLE>
________________________
*Incorporated by reference to the Company's Annual Report on Form 10-KSB for
the fiscal year ended December 31, 1995.
II-6
<PAGE> 1
EXHIBIT 5
[DAY CAMPBELL & McGILL LETTERHEAD]
May 7, 1997
Bikers Dream, Inc.
1420 Village Way
Santa Ana, California 92705
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Bikers Dream, Inc., a California
corporation (the "Company"), and in such capacity have examined the form of
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission by the Company on or about May 8,
1997, in connection with the registration under the Securities Act of 1933,
as amended (the "Act") of up to 1,400,000 shares of common stock, without par
value, of the Company (the "Shares"). Up to 1,000,000 of the Shares are to be
sold upon the exercise of stock options to be granted by the Company under its
1995 Non-Qualified Stock Option Plan and up to 400,000 of the Shares are to be
sold upon the exercise of options granted to Donald J. Duffy and Rowland W. Day
II. The Shares will be offered and sold pursuant to the Company's Registration
Statement filed with the Commission.
As counsel for the Company and for purposes of this opinion, we have
made those examinations and investigations of legal and factual matters we
deemed advisable, and have examined the originals, or copies certified to our
satisfaction as being true copies of the originals, of those corporate records,
certificates, documents and other instruments which we, in our judgment, have
considered necessary or appropriate to enable us to render the opinion
expressed below. For these purposes, we have relied, without independent
investigation, upon certificates provided by public officials and by officers
of the Company as to certain factual matters. We have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
the latter documents.
On the basis of the foregoing, and relying solely thereon, we are of
the opinion that the Shares are duly authorized and, provided the Shares are
issued, delivered and paid for in the manner and upon the terms contemplated by
the Registration Statement, the Shares will be validly issued, fully paid and
nonassessable.
<PAGE> 2
No opinion is expressed herein as to the application of state
securities or Blue Sky laws.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
DAY CAMPBELL & McGILL
<PAGE> 1
EXHIBIT 10.25
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered into as
of the 9th day of September, 1996, by and between Bikers Dream, Inc., a
California corporation ("Company") and Donald J. Duffy ("Optionee").
R E C I T A L S
A. Company is in the business of developing and operating Bikers
Dream Superstores in the United States.
B. Optionee has been appointed co-Chief Executive Officer of the
Company.
C. Pursuant to the employment agreement between Optionee and
Company, Company has agreed to grant Optionee an irrevocable option to purchase
200,000 shares (the "Shares") of Company common stock ("Common Stock") ,
subject to the terms of this Agreement.
In consideration of the terms and conditions set forth in this
Agreement, Company and Optionee hereby agree as follows:
1. Grant of Option. Company hereby grants to Optionee the
irrevocable right and option (the "Option") to purchase 200,000 shares of the
Company's common stock (the "Option Shares"), at a price (the "Option Price")
of $1.05 per share, on the terms set forth in this Agreement.
2. Exercise of Option.
(a) The Option may be exercised at any time between the
date hereof and September 8, 1998. The Option shall be exercised by giving
notice in writing by personal service or prepaid United States registered mail
to the Company at its principal executive office. The notice shall state
Optionee's election to exercise the Option and the number of Option Shares with
respect to which the Option is being exercised. The Option shall be
exercisable, at the election of the Optionee, either in full or from time to
time in part and, in the event that the Option is partially exercised, a new
Option Agreement evidencing the remaining portion of the Option shall be
executed by both parties hereto.
(b) Payment of the aggregate Option Price shall be made
in cash or by check. At the option of the Optionee, in lieu of payment of the
Option Price for Shares, the Optionee may request in writing that the Company
issue to it the number of Shares issuable as determined in accordance with the
following formula:
NS = OS - [(OP/CMP) x OS]
NS = "net" Shares
OS = No. of Shares issuable upon exercises of the options.
OP = Option Price
CMP= Current Market Price as defined in Section 2(c) hereof.
<PAGE> 2
Upon such surrender of this Agreement and payment for the Shares or
written request that the Company issue the "net" Shares in accordance with the
foregoing formula, the Company shall issue or cause to be issued and deliver or
cause to be delivered, within 30 days, to the Optionee a certificate or
certificates for the number of full Shares or "net" Shares as the case may be
in respect of which the Option is being exercised, together with cash, as
provided in Section 2(c) hereof, in respect of any fractional Share otherwise
issuable upon such exercise.
(c) The Company shall not be required to issue fractional
Shares on the exercise of the Option. If any fraction of a Share would, except
for the provisions of Section 2(c), be issuable on the exercise of the Option,
the Company shall pay an amount in cash equal to the then Current Market Price
multiplied by such fraction. For purposes of this Agreement, the term "Current
Market Price" shall mean (i) if the Common Stock is traded in the
over-the-counter market and not in the NASDAQ National Market System nor on any
national securities exchange, the average per share closing bid prices of the
Common Stock for the fifteen (15) consecutive trading days immediately
preceding the date in question, as reported by NASDAQ or (ii) if the Common
Stock is traded in the NASDAQ National Market System or on a national
securities exchange, the average for the fifteen (15) consecutive trading days
immediately preceding the date in question of the daily per share closing
prices of the Common Stock in the NASDAQ National Market System or on the
principal stock exchange on which it is listed, as the case may be. For
purposes of clause (i) above, if trading in the Common Stock is not reported by
NASDAQ, the average referred to in said clause shall be as reported in the OTC
Bulletin Board, the "pink sheets" published by National Quotation Bureau,
Incorporated or any other comparable quotation medium. The closing price
referred to in clause (ii) above shall be the last reported sale price or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices, in either case, in the NASDAQ National Market
System or on the national securities exchange on which the Common Stock is then
listed.
3. Registration Rights.
The Company agrees to register the resale of the Option Shares
at its own expense pursuant to the next registration statement to be filed by
the Company with the Securities and Exchange Commission, such registration
statement to be effective at least for the period from the date thereof to the
end of the applicable Rule 144 restricted period.
4. Closing. Delivery of a certificate for the number of Option
Shares as to which the Option is being exercised and payment of the purchase
price therefore pursuant to Section 2(b) will take place at the Company's
principal executive office, within 48 hours after receipt by Company of notice
of Optionee's exercise of the Option (the "Closing Date").
5. Representations and Warranties of Company. Company represents
and warrants as follows:
(a) The execution, delivery and performance by Company of
this Agreement have been duly authorized by all necessary corporate action, and
this Agreement has been duly executed and delivered by Company.
2
<PAGE> 3
(b) Company shall at all times reserve and keep available
a number of its authorized but unissued shares of common stock that will be
sufficient to permit the exercise in full of the Option.
(c) The Option Shares to be issued upon the exercise of
the Option and payment therefor, have been duly authorized and, when issued and
paid for, will be validly issued, fully paid and nonassessable.
6. Investment Representations of Optionee. Optionee represents,
acknowledges and agrees as follows:
(a) Optionee is acquiring the Option and any Option
Shares acquired upon exercise of the Option for Optionee's own account and not
with a view to, or for sale in connection with, any distribution thereof.
(b) The Option Shares shall not be sold or transferred
until either (i) they first shall have been registered under the Securities Act
of 1933, or (ii) Company first shall have been furnished with an opinion of
legal counsel, reasonably satisfactory to Company, to the effect that such sale
or transfer is exempt from the registration requirements of the Securities Act
of 1933.
(c) The certificates evidencing the Option Shares issued
upon exercise of the Option will bear the following restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 ("THE ACT") AS AMENDED, AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS AND UNTIL SUCH SHARES
ARE REGISTERED UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED."
7. Privileges of Stock Ownership. Neither Optionee nor any
transferee of Optionee shall have any of the rights or privileges of a
stockholder of Company with respect to any Option Shares issuable upon the
exercise of the Option until certificates representing such Option Shares shall
have been issued and delivered.
8. Adjustment to Number and Purchase Price of Option Shares. If
the outstanding shares of the Company's common stock are increased or
decreased, or are changed into or exchanged for a different number or kind of
shares or securities or other forms of property (including cash) or rights, as
a result of one or more reorganizations, recapitalizations, spin-offs, stock
splits, reverse stock splits, stock dividends or the like, appropriate
adjustments shall be made in the number and/or kind of shares or securities or
other forms of property (including cash) or rights for which this Option may
3
<PAGE> 4
thereafter be exercised, all without any change in the aggregate exercise price
applicable to the unexercised portions of the Option, but with a corresponding
adjustment in the exercise price per share. No fractional share of stock shall
be issued under this Option or in connection with any such adjustment. Such
adjustments shall be made by the independent certified public accountants
regularly retained by Company whose determinations as to what adjustments shall
be made, and the extent thereof, shall be final, binding and conclusive.
Upon the dissolution or liquidation of Company, or upon a
reorganization, merger or consolidation of Company as a result of which the
outstanding shares of common stock are changed into or exchanged for property
(including cash), rights or securities not of Company's issue, or any
combination thereof, or upon a sale of substantially all the property of
Company to, or the acquisition of stock representing more than eighty percent
(80%) of the voting power of the stock of Company then outstanding by, another
corporation or person, this Option shall terminate, unless provision be made in
writing in connection with such transaction for the assumption of this Option,
or the substitution for this Option of an option covering the stock of a
successor corporation, or a parent or a subsidiary thereof, with appropriate
adjustments in accordance with the provisions hereinabove in this Section as to
the number and kind of shares optioned and their exercise prices, in which
event this Option shall continue in the manner and under the terms so provided.
If this Option shall terminate pursuant to the next preceding
paragraph, Optionee or other person then entitled to exercise this Option shall
have the right, at such time prior to the consummation of the transaction
causing such termination as Optionee shall designate, to exercise the
unexercised portion of this Option, including the portions thereof which would,
but for this Section, not yet be exercisable.
9. Default and Remedies. Optionee agrees that any failure by
Optionee to faithfully perform any of its obligations under the Operating
Agreement or any other agreement between the parties shall constitute a default
under this Agreement. Upon the occurrence of an event of default hereunder,
Company shall have all of the rights and remedies accorded to it under the laws
of the State of California and any other applicable jurisdiction, all of which
rights and remedies shall, to the full extent permitted by law, be cumulative.
Without limiting the generality of the foregoing, upon the occurrence of a
default hereunder, Company shall be entitled to immediately cancel any stock
options, Option Shares or other securities granted or issued to Optionee
hereunder.
10. Binding Effect. This Agreement will be binding upon the
parties, their heirs, legal representatives, successors, and assigns.
11. Amendments and Modifications. This Agreement may be amended
or modified only by a writing signed by both parties. Any attempt by either
party to modify or amend this Agreement orally will be void in all respects.
4
<PAGE> 5
12. Non-waiver. No delay or failure by either party to exercise
any right under this Agreement, and no partial or single exercise of that
right, will constitute a waiver of that or any other right, unless otherwise
expressly provided herein.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
15. Arbitration. All disputes and controversies arising under or
relating to this Agreement, including allegations of fraud and
misrepresentation, will be resolved by arbitration in Santa Ana, California, in
accordance with the rules and regulations of the American Arbitration
Association. The decision of the arbitrator will be final and binding on the
parties and may be filed as a judgment in any court of competent jurisdiction.
Each party will pay one-half of the arbitrator's fees and expenses.
16. Survival. All representations, warranties, covenants and
agreements of the parties contained in this Agreement shall survive the
execution and delivery hereof.
17. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be validly
given or made to another party if given by personal delivery, telex, facsimile,
telegram, or if deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested. If such notice, demand or other
communication is given by personal delivery, telex, facsimile or telegram,
service shall be conclusively deemed made at the time of receipt. If such
notice, demand or other communication is given by mail; such notice shall be
conclusively deemed given forty-eight (48) hours after the deposit thereof in
the United States mail addressed to the party to whom such notice, demand or
other communication is to be given as hereinafter set forth:
If to Company: Bikers Dream, Inc.
1420 Village Way
Santa Ana, California 92705
Attn: Rowland W. Day, II
If to Optionee: Donald J. Duffy
237 Park Avenue, 8th Floor
New York, New York 10017
Any party may change its address for purposes of this paragraph by
giving the other parties written notice of the new address in the manner set
forth above.
5
<PAGE> 6
18. Assignment. The Option may not be assigned by Optionee
without the prior written consent of Company.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day,
month and year first written above.
BIKERS DREAM, INC.
By: [SIG]
-----------------------------------
Its: CO-CEO
----------------------------------
OPTIONEE
/s/ DONALD J. DUFFY
--------------------------------------
DONALD J. DUFFY
6
<PAGE> 1
EXHIBIT 10.26
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered into as
of the 9th day of September, 1996, by and between Bikers Dream, Inc., a
California corporation ("Company") and Rowland W. Day, II ("Optionee").
R E C I T A L S
A. Company is in the business of developing and operating Bikers
Dream Superstores in the United States.
B. Optionee has been appointed co-Chief Executive Officer of the
Company.
C. Pursuant to the employment agreement between Optionee and
Company, Company has agreed to grant Optionee an irrevocable option to purchase
200,000 shares (the "Shares") of Company common stock ("Common Stock") ,
subject to the terms of this Agreement.
In consideration of the terms and conditions set forth in this
Agreement, Company and Optionee hereby agree as follows:
1. Grant of Option. Company hereby grants to Optionee the
irrevocable right and option (the "Option") to purchase 200,000 shares of the
Company's common stock (the "Option Shares"), at a price (the "Option Price")
of $1.05 per share, on the terms set forth in this Agreement.
2. Exercise of Option.
(a) The Option may be exercised at any time between the
date hereof and September 8, 1998. The Option shall be exercised by giving
notice in writing by personal service or prepaid United States registered mail
to the Company at its principal executive office. The notice shall state
Optionee's election to exercise the Option and the number of Option Shares with
respect to which the Option is being exercised. The Option shall be
exercisable, at the election of the Optionee, either in full or from time to
time in part and, in the event that the Option is partially exercised, a new
Option Agreement evidencing the remaining portion of the Option shall be
executed by both parties hereto.
(b) Payment of the aggregate Option Price shall be made
in cash or by check. At the option of the Optionee, in lieu of payment of the
Option Price for Shares, the Optionee may request in writing that the Company
issue to it the number of Shares issuable as determined in accordance with the
following formula:
NS = OS - [(OP/CMP) x OS]
NS = "net" Shares
OS = No. of Shares issuable upon exercises of the options.
OP = Option Price
CMP= Current Market Price as defined in Section 2(c) hereof.
<PAGE> 2
Upon such surrender of this Agreement and payment for the Shares or
written request that the Company issue the "net" Shares in accordance with the
foregoing formula, the Company shall issue or cause to be issued and deliver or
cause to be delivered, within 30 days, to the Optionee a certificate or
certificates for the number of full Shares or "net" Shares as the case may be
in respect of which the Option is being exercised, together with cash, as
provided in Section 2(c) hereof, in respect of any fractional Share otherwise
issuable upon such exercise.
(c) The Company shall not be required to issue fractional
Shares on the exercise of the Option. If any fraction of a Share would, except
for the provisions of Section 2(c), be issuable on the exercise of the Option,
the Company shall pay an amount in cash equal to the then Current Market Price
multiplied by such fraction. For purposes of this Agreement, the term "Current
Market Price" shall mean (i) if the Common Stock is traded in the
over-the-counter market and not in the NASDAQ National Market System nor on any
national securities exchange, the average per share closing bid prices of the
Common Stock for the fifteen (15) consecutive trading days immediately
preceding the date in question, as reported by NASDAQ or (ii) if the Common
Stock is traded in the NASDAQ National Market System or on a national
securities exchange, the average for the fifteen (15) consecutive trading days
immediately preceding the date in question of the daily per share closing
prices of the Common Stock in the NASDAQ National Market System or on the
principal stock exchange on which it is listed, as the case may be. For
purposes of clause (i) above, if trading in the Common Stock is not reported by
NASDAQ, the average referred to in said clause shall be as reported in the OTC
Bulletin Board, the "pink sheets" published by National Quotation Bureau,
Incorporated or any other comparable quotation medium. The closing price
referred to in clause (ii) above shall be the last reported sale price or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices, in either case, in the NASDAQ National Market
System or on the national securities exchange on which the Common Stock is then
listed.
3. Registration Rights.
The Company agrees to register the resale of the Option Shares
at its own expense pursuant to the next registration statement to be filed by
the Company with the Securities and Exchange Commission, such registration
statement to be effective at least for the period from the date thereof to the
end of the applicable Rule 144 restricted period.
4. Closing. Delivery of a certificate for the number of Option
Shares as to which the Option is being exercised and payment of the purchase
price therefore pursuant to Section 2(b) will take place at the Company's
principal executive office, within 48 hours after receipt by Company of notice
of Optionee's exercise of the Option (the "Closing Date").
5. Representations and Warranties of Company. Company represents
and warrants as follows:
(a) The execution, delivery and performance by Company of
this Agreement have been duly authorized by all necessary corporate action, and
this Agreement has been duly executed and delivered by Company.
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<PAGE> 3
(b) Company shall at all times reserve and keep available
a number of its authorized but unissued shares of common stock that will be
sufficient to permit the exercise in full of the Option.
(c) The Option Shares to be issued upon the exercise of
the Option and payment therefor, have been duly authorized and, when issued and
paid for, will be validly issued, fully paid and nonassessable.
6. Investment Representations of Optionee. Optionee represents,
acknowledges and agrees as follows:
(a) Optionee is acquiring the Option and any Option
Shares acquired upon exercise of the Option for Optionee's own account and not
with a view to, or for sale in connection with, any distribution thereof.
(b) The Option Shares shall not be sold or transferred
until either (i) they first shall have been registered under the Securities Act
of 1933, or (ii) Company first shall have been furnished with an opinion of
legal counsel, reasonably satisfactory to Company, to the effect that such sale
or transfer is exempt from the registration requirements of the Securities Act
of 1933.
(c) The certificates evidencing the Option Shares issued
upon exercise of the Option will bear the following restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 ("THE ACT") AS AMENDED, AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS AND UNTIL SUCH SHARES
ARE REGISTERED UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED."
7. Privileges of Stock Ownership. Neither Optionee nor any
transferee of Optionee shall have any of the rights or privileges of a
stockholder of Company with respect to any Option Shares issuable upon the
exercise of the Option until certificates representing such Option Shares shall
have been issued and delivered.
8. Adjustment to Number and Purchase Price of Option Shares. If
the outstanding shares of the Company's common stock are increased or
decreased, or are changed into or exchanged for a different number or kind of
shares or securities or other forms of property (including cash) or rights, as
a result of one or more reorganizations, recapitalizations, spin-offs, stock
splits, reverse stock splits, stock dividends or the like, appropriate
adjustments shall be made in the number and/or kind of shares or securities or
other forms of property (including cash) or rights for which this Option may
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<PAGE> 4
thereafter be exercised, all without any change in the aggregate exercise price
applicable to the unexercised portions of the Option, but with a corresponding
adjustment in the exercise price per share. No fractional share of stock shall
be issued under this Option or in connection with any such adjustment. Such
adjustments shall be made by the independent certified public accountants
regularly retained by Company whose determinations as to what adjustments shall
be made, and the extent thereof, shall be final, binding and conclusive.
Upon the dissolution or liquidation of Company, or upon a
reorganization, merger or consolidation of Company as a result of which the
outstanding shares of common stock are changed into or exchanged for property
(including cash), rights or securities not of Company's issue, or any
combination thereof, or upon a sale of substantially all the property of
Company to, or the acquisition of stock representing more than eighty percent
(80%) of the voting power of the stock of Company then outstanding by, another
corporation or person, this Option shall terminate, unless provision be made in
writing in connection with such transaction for the assumption of this Option,
or the substitution for this Option of an option covering the stock of a
successor corporation, or a parent or a subsidiary thereof, with appropriate
adjustments in accordance with the provisions hereinabove in this Section as to
the number and kind of shares optioned and their exercise prices, in which
event this Option shall continue in the manner and under the terms so provided.
If this Option shall terminate pursuant to the next preceding
paragraph, Optionee or other person then entitled to exercise this Option shall
have the right, at such time prior to the consummation of the transaction
causing such termination as Optionee shall designate, to exercise the
unexercised portion of this Option, including the portions thereof which would,
but for this Section, not yet be exercisable.
9. Default and Remedies. Optionee agrees that any failure by
Optionee to faithfully perform any of its obligations under the Operating
Agreement or any other agreement between the parties shall constitute a default
under this Agreement. Upon the occurrence of an event of default hereunder,
Company shall have all of the rights and remedies accorded to it under the laws
of the State of California and any other applicable jurisdiction, all of which
rights and remedies shall, to the full extent permitted by law, be cumulative.
Without limiting the generality of the foregoing, upon the occurrence of a
default hereunder, Company shall be entitled to immediately cancel any stock
options, Option Shares or other securities granted or issued to Optionee
hereunder.
10. Binding Effect. This Agreement will be binding upon the
parties, their heirs, legal representatives, successors, and assigns.
11. Amendments and Modifications. This Agreement may be amended
or modified only by a writing signed by both parties. Any attempt by either
party to modify or amend this Agreement orally will be void in all respects.
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<PAGE> 5
12. Non-waiver. No delay or failure by either party to exercise
any right under this Agreement, and no partial or single exercise of that
right, will constitute a waiver of that or any other right, unless otherwise
expressly provided herein.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
15. Arbitration. All disputes and controversies arising under or
relating to this Agreement, including allegations of fraud and
misrepresentation, will be resolved by arbitration in Santa Ana, California, in
accordance with the rules and regulations of the American Arbitration
Association. The decision of the arbitrator will be final and binding on the
parties and may be filed as a judgment in any court of competent jurisdiction.
Each party will pay one-half of the arbitrator's fees and expenses.
16. Survival. All representations, warranties, covenants and
agreements of the parties contained in this Agreement shall survive the
execution and delivery hereof.
17. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be validly
given or made to another party if given by personal delivery, telex, facsimile,
telegram, or if deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested. If such notice, demand or other
communication is given by personal delivery, telex, facsimile or telegram,
service shall be conclusively deemed made at the time of receipt. If such
notice, demand or other communication is given by mail; such notice shall be
conclusively deemed given forty-eight (48) hours after the deposit thereof in
the United States mail addressed to the party to whom such notice, demand or
other communication is to be given as hereinafter set forth:
If to Company: Bikers Dream, Inc.
1420 Village Way
Santa Ana, California 92705
Attn: Rowland W. Day, II
If to Optionee: Rowland W. Day, II
3070 Bristol Street, Suite 650
Costa Mesa, California 92626
Any party may change its address for purposes of this paragraph by
giving the other parties written notice of the new address in the manner set
forth above.
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<PAGE> 6
18. Assignment. The Option may not be assigned by Optionee
without the prior written consent of Company.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day,
month and year first written above.
BIKERS DREAM, INC.
By: /s/ DONALD J. DUFFY
------------------------------
Its: CO-CEO
-----------------------------
OPTIONEE
/s/ ROWLAND W. DAY, II
---------------------------------
ROWLAND W. DAY, II
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<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 24, 1997, accompanying the consolidated
financial statements included in the Annual Report of Bikers Dream, Inc. on
Form 10-KSB for the year ended December 31, 1996. We hereby consent to the
incorporation by reference of said report in the Registration Statement of
Bikers Dream, Inc. on Form S-8.
/s/ SINGER, LEWAK, GREENBAUM & GOLDSTEIN, LLP
- ----------------------------------------------
SINGER, LEWAK, GREENBAUM & GOLDSTEIN, LLP
Los Angeles, California
May 7, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Bikers Dream, Inc. on Form S-8 of our report dated February 27, 1996, on our
audit of the financial statements of Bikers Dream, Inc. as of and for the year
ended December 31, 1995, which report is included in the 1996 Annual Report on
Form 10-KSB and includes an explanatory paragraph relating to substantial doubt
about the entity's ability to continue as a going concern.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Newport Beach, California
May 7, 1997
