<PAGE>
As filed with the Securities and Exchange Commission on January 23, 1997
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
(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)
----------
1995 STOCK OPTION PLAN
WARRANTS TO PURCHASE COMMON STOCK
(Full titles of the plans)
----------
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)
----------
Copy to:
RONALD W. BUCKLY, ESQ.
Bryan Cave LLP
120 Broadway, Suite 500
Santa Monica, California 90401
----------
<PAGE>
<TABLE>
====================================================================================================================================
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
<CAPTION>
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
- ----------------------------------------------------------- ---------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
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
================ ===============
- ------------------------------------------------------------------------------------------------------------------------------------
<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.
====================================================================================================================================
</TABLE>
(i)
<PAGE>
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, 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.
-1-
<PAGE>
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.
-2-
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number
--------------
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.
-3-
<PAGE>
(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.
-4-
<PAGE>
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
---------------------------------------
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
- ------------------------------
James P. Higgins
-5-
<PAGE>
Signature Title Date
- ------------------------------ ------------------------------ ----------------
/s/ Jill Tate Higgins Director January 23, 1997
- ------------------------------
Jill Tate Higgins
/s/ Charles Miller Director January 23, 1997
- ------------------------------
Charles Miller
/s/ Alan R. Rachlin Director January 23, 1997
- ------------------------------
Alan R. Rachlin
/s/ Boyd I. Willat Director January 23, 1997
- ------------------------------
Boyd I. Willat
/s/ Felice Willat Director January 23, 1997
- ------------------------------
Felice Willat
-6-
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Exhibit
- -------------- ----------------------------------------------------------------
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
<PAGE>
EXHIBIT 5.1
BRYAN CAVE LLP
120 BROADWAY, SUITE 500
SANTA MONICA, CALIFORNIA 90401
(310) 576-2100
FACSIMILE (310) 576-2200
January 23, 1997
Day Runner, Inc.
15295 Alton Parkway
Irvine, California 92718
Re: Day Runner, Inc. - Registration Statement on Form S-8
Gentlemen:
We have acted as securities counsel for Day Runner, Inc. (the
"Company"), in connection with the preparation of a registration statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933 to be
filed with the Securities and Exchange Commission (the "Commission") on January
23, 1997, in connection with the registration of 325,000 shares of Common Stock,
par value $0.001 per share (the "Shares"), issuable upon exercise of options
granted or to be granted pursuant to the Company's 1995 Stock Option Plan or
upon the exercise of warrants granted to five directors of the Company (such
1995 Stock Option Plan and warrants are together referred to herein as the
"Plans").
In connection with the preparation of the Registration Statement and
the proposed issuance and sale of the Shares in accordance with the Plans and
the Form S-8 prospectuses to be delivered to participants in the Plans, we have
made certain legal and factual examinations and inquiries and examined, among
other things, such documents, records, instruments, agreements, certificates and
matters as we have considered appropriate and necessary for the rendering of
this opinion. We have assumed for the purpose of this opinion the authenticity
of all documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies, and the genuineness of the
signatures thereon. As to various questions of fact material to this opinion, we
have, when relevant facts were not independently established, relied, to the
extent deemed proper by us, upon certificates and statements of officers and
representatives of the Company.
Based on the foregoing and in reliance thereon, it is our opinion that
the Shares have been duly authorized and, after the Registration Statement
becomes effective and after any post-effective amendment required by law is duly
completed, filed and becomes effective, and when the applicable provisions of
"Blue Sky" and other state securities laws shall have been complied with, and
when the Shares are issued and sold in accordance with the Plans and the Form
S-8 prospectuses to be delivered to participants in the Plans, the Shares will
be validly issued, fully paid and nonassessable.
<PAGE>
We hereby consent to the inclusion of our opinion as Exhibit 5.1 to
the Registration Statement and further consent to the reference to this firm in
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 Securities Act of 1933 or the rules and regulations of the Commission
thereunder.
This opinion is rendered solely for your benefit in connection with
the subject transaction and is not to be otherwise used, circulated, quoted or
referred to without our prior written consent. We are opining herein as to the
effect on the subject transaction only of United States federal law and the
internal laws of the State of Delaware, and we assume no responsibility as to
the applicability thereto, or the effect thereon, of the laws of any other
jurisdiction.
Very truly yours,
/s/ BRYAN CAVE LLP
BRYAN CAVE LLP
<PAGE>
EXHIBIT 10.1
AMENDMENT NO. 1 TO
DAY RUNNER, INC.
1995 STOCK OPTION PLAN
Section 3 of the Day Runner, Inc. 1995 Stock Option Plan is hereby
amended to read in its entirety as follows:
"3. Shares Reserved. The maximum aggregate number of
Shares reserved for issuance pursuant to the Plan shall be
500,000 Shares or the number of shares of stock to which
such Shares shall be adjusted as provided in Section 10 of
the Plan. Such number of Shares may be set aside out of
authorized but unissued Shares not reserved for any other
purpose, or out of issued Shares acquired for and held in
the treasury of the Company from time to time.
Shares subject to, but not sold or issued under, any
Option terminating, expiring or canceled for any reason
prior to its exercise in full, shall again become available
for Options thereafter granted under the Plan, and the same
shall not be deemed an increase in the number of Shares
reserved for issuance under the Plan. Any Shares which may
be tendered, actually or by attestation, by an Optionee as
full or partial payment in connection with the exercise of
any Option under the Plan shall again be available for
Options thereafter granted during the remainder of the term
of the Plan."
Dated: October 21, 1996
<PAGE>
EXHIBIT 10.2
WARRANT TO PURCHASE COMMON STOCK
OF
DAY RUNNER, INC.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATING THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Warrant to Purchase
25,000 Shares of Common Stock
DAY RUNNER, INC.
INCORPORATED UNDER THE LAWS OF THE STATE
OF DELAWARE
Void after December 3, 2003
THE WARRANT evidenced by this Certificate has been issued for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
THIS CERTIFICATE evidences the right of _______________ (the "Holder")
to purchase 25,000 shares of Common Stock, par value $0.001 per share (the
"Shares"), of Day Runner, Inc., a Delaware corporation (the "Company"), at a
price of $23.5625 per Share, subject, however, to the terms and conditions
hereinafter set forth.
1. Definitions. As used in this Certificate:
(a) "Warrant" shall mean the rights evidenced by this Certificate.
(b) "Warrant Price" shall mean $23.5625, as adjusted in accordance
with Section 5 hereof.
2. Term of Warrant. The Warrant may be exercised only during the period
commencing on December 4, 1996 through the close of business on December 3, 2003
(the "Warrant Term") and may be exercised only in accordance with the terms and
conditions hereinafter set forth.
<PAGE>
3. Exercise of Warrant. The Warrant shall be exercisable as follows:
(a) Right to Exercise. The Warrant shall vest and become exercisable
cumulatively in 60 equal monthly installments with the first installment vesting
on January 1, 1997 and one additional installment vesting on the first day of
each month thereafter so long as _______________ remains a member of the
Company's Board of Directors.
Notwithstanding the foregoing, if _______________ shall cease to be
a director of the Company for any reason or no reason ("Termination"), whether
such Termination is permanent or temporary, then after the effective date of
such Termination and through the end of the Warrant Term the Holder may exercise
the Warrant to purchase only such number of Shares that the Holder would have
been entitled to purchase on the effective date of such Termination as
determined in accordance with the immediately preceding sentence. To the extent
that the Holder shall not have been entitled to exercise any portion of the
Warrant on the effective date of such Termination, such portion shall be deemed
to have expired unexercised on such effective date.
(b) Method of Exercise; Payment; Issuance of New Warrant; Transfer
and Exchange. The Warrant may be exercised by the Holder, in whole or in part,
by the surrender of this Certificate, properly endorsed, with the form of
subscription attached to this Certificate duly executed by the Holder, at the
principal office of the Company, and by the payment to the Company by certified
or cashier's check of the then applicable Warrant Price. In the event of any
exercise of the Warrant, certificates for the Shares so purchased shall be
delivered to the Holder within a reasonable time after the Warrant has been so
exercised and, unless the Warrant has expired, a new certificate representing
the right to purchase the number of Shares, if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder
within such time. All such new certificates shall be dated the date hereof and
shall be identical to this Certificate except as to the number of Shares
issuable pursuant thereto.
(c) Restrictions on Exercise. The Warrant may not be exercised if
the issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. As
a condition to the exercise of the Warrant, the Company may require the Holder
to make such representations and warranties to the Company as may be required by
applicable law or regulation.
4. Shares Fully Paid; Reservation of Shares. The Company covenants and
agrees that all Shares will, upon issuance and payment in accordance herewith,
be fully paid, validly issued and nonassessable. The Company further covenants
and agrees that during the Warrant Term the Company will at all times have
authorized and reserved for the purpose of issue upon exercise of the Warrant at
least the maximum number of Shares as are issuable upon the exercise of the
Warrant.
5. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of the Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
-2-
<PAGE>
(a) Consolidation, Merger or Reclassification. If the Company at any
time while the Warrant remains outstanding and unexpired shall consolidate with
or merge into any other corporation, or sell all or substantially all of its
assets to another corporation, or reclassify or in any manner change the
securities then purchasable upon the exercise of the Warrant (any of which shall
constitute a "Reorganization"), then lawful and adequate provision shall be made
whereby this Certificate shall thereafter evidence the right to purchase such
number and kind of securities and other property as would have been issuable or
distributable on account of such Reorganization upon or with respect to the
securities which were purchasable or would have become purchasable under the
Warrant immediately prior to such Reorganization. The Company shall not effect
any such Reorganization unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than the Company) resulting from
such Reorganization shall assume by written instrument executed and mailed or
delivered to the Holder, at the last address of the Holder appearing on the
books of the Company, the obligation to deliver to the Holder such shares of
stock, securities or assets as, in accordance with the foregoing provisions, the
Holder may be entitled to purchase. Notwithstanding anything in this Section
5(a) to the contrary, the prior two sentences shall be inoperative and of no
force and effect if upon the completion of any such Reorganization the
stockholders of the Company immediately prior to such event do not own at least
50% of the equity interest of the corporation resulting from such
Reorganization, in which case the Warrant or any unexercised portion thereof
shall expire upon the completion of such Reorganization if the notice required
by Section 5(e) hereof has been duly given.
(b) Subdivision or Combination of Shares. If the Company at any time
while the Warrant remains outstanding and unexpired shall subdivide or combine
its Common Stock, the Warrant Price shall be adjusted to that price determined
by multiplying the Warrant Price in effect immediately prior to such subdivision
or combination by a fraction (i) the numerator of which shall be the total
number of shares of Common Stock outstanding immediately prior to such
subdivision or combination and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such subdivision
or combination.
(c) Certain Dividends and Distributions. If the Company at any time
while the Warrant is outstanding and unexpired shall take a record of the
holders of its Common Stock for the purpose of:
(i) Stock Dividends. Entitling them to receive a dividend
payable in, or other distribution without consideration of, Common
Stock, then the Warrant Price shall be adjusted to that price
determined by multiplying the Warrant Price in effect immediately
prior to each dividend or distribution by a fraction (A) the
numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to such dividend or distribution
and (B) the denominator of which shall be the total number of shares
of Common Stock outstanding immediately after such dividend or
distribution; or
(ii) Distribution of Assets, Securities, etc. Making any
distribution without consideration with respect to its Common Stock
(other than a cash dividend) payable other than in its Common Stock,
-3-
<PAGE>
the Holder shall, upon the exercise hereof, be entitled to receive,
in addition to the number of Shares receivable upon such exercise,
and without payment of any additional consideration therefor, such
assets or securities as would have been payable to the Holder as
owner of that number of Shares receivable by exercise of the Warrant
had the Holder been the holder of record of such Shares on the
record date for such distribution, and an appropriate provision
therefor shall be made a part of any such distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the
Warrant Price pursuant to Subsections (b) or (c)(i) of this Section 5, the
number of Shares purchasable hereunder shall be adjusted to that number
determined by multiplying the number of Shares purchasable upon the exercise of
the Warrant immediately prior to such adjustment by a fraction, the numerator of
which shall be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately following such
adjustment.
(e) Notice. In case at any time during the Warrant Term:
(i) The Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution, excluding a cash dividend, to
the holders of its Common Stock;
(ii) The Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any
class or other rights;
(iii) There shall be any reclassification of the Common Stock of
the Company, or consolidation or merger of the Company with, or sale
of all or substantially all of its assets to, another corporation;
or
(iv) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to the Holder at
least ten days' prior written notice (or, in the event of notice pursuant to
Section 5(e)(iii), at least 30 days' prior written notice) of the date on which
the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect to any such reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up. Such notice shall also specify, in the
case of any such dividend, distribution or subscription rights, the date on
which the holders of Common Stock shall be entitled thereto, and such notice
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may be. Each such written
notice shall be given personally or by first-class, registered or certified mail
or similar delivery service, postage prepaid, addressed to the Holder at the
address of the Holder as shown on the books of the Company.
-4-
<PAGE>
(f) No Change in Certificate. The form of this Certificate need not
be changed because of any adjustment in the Warrant Price or in the number of
Shares purchasable upon exercise of any or all of the Warrant. The Warrant Price
or the number of Shares shall be considered to have been so changed as of the
close of business on the date of adjustment.
6. Fractional Shares. No fractional Shares will be issued in connection
with any exercise of the Warrant, rather, in lieu of such fractional Shares, the
Company shall make a cash payment therefor upon the basis of the fair market
value of the Shares at the time of such exercise, as determined in good faith by
the Company's Board of Directors.
7. Transfer and Exchange of Warrant. Subject to the terms hereof,
including, without limitation, Section 8, the Warrant and all rights hereunder
are transferable, in whole or in part, on the books of the Company maintained
for such purpose at its principal office referred to above by the registered
holder hereof in person or by its duly authorized attorney, upon surrender of
the Warrant properly endorsed and upon payment of any necessary transfer tax or
other governmental charge imposed upon such transfer. Upon any partial transfer,
the Company will issue and deliver to such holder a new Warrant or Warrants with
respect to the shares of Common Stock not so transferred. Each taker and holder
of the Warrant, by taking or holding the same, consents and agrees that the
Warrant when endorsed in blank shall be deemed negotiable and that when the
Warrant shall have been so endorsed, the holder hereof may be treated by the
Company and all other persons dealing with the Warrant, as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented hereby, or to the transfer hereof on the books of the Company, any
notice to the contrary notwithstanding; but until such transfer on such books,
the Company may treat the registered holder hereof as the owner for all
purposes.
The Warrant is exchangeable at such office for a Warrant or Warrants
for the same aggregate number of shares of Common Stock, all new Warrants to
represent the right to purchase such number of shares as the holder hereof shall
designate at the time of such exchange.
8. Restrictions on Transfer of Warrant. The Holder of the Warrant, by
acceptance hereof, agrees that, absent an effective notification under
Regulation A or a registration statement, in either case under the Securities
Act of 1933, covering the disposition of the Warrant or Common Stock issued, or
issuable upon exercise hereof, such Holder will not sell, transfer, pledge or
hypothecate any or all of such Warrant or Common Stock, as the case may be,
unless such sale or transfer will be exempt from the registration and prospectus
delivery requirements of the Securities Act of 1933 and applicable state
securities laws, and such Holder consents to the Company making a notification
on its records or giving instructions to any transfer agent of the Warrant or
such Common Stock in order to implement such restriction on transferability.
9. No Rights as Stockholder. The holder of the Warrant, as such, shall
not be entitled to vote or receive dividends or be considered a stockholder of
the Company for any purpose, nor shall anything in the Warrant be construed to
confer on such holder, as such, any rights of a stockholder of the Company or
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<PAGE>
any right to vote, give or withhold consent to any corporate action, to receive
notice of meetings of stockholders, to receive dividends or subscription rights
or otherwise.
10. Miscellaneous Provisions.
(a) Replacement. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of the Warrant and, in
the case of loss, theft or destruction, on delivery of any indemnity agreement
or bond reasonably satisfactory in form and amount to the Company or, in the
case of mutilation, on surrender and cancellation of the Warrant, the Company at
its expense will execute and deliver, in lieu of the Warrant, a new Warrant of
like tenor.
(b) Governing Law. The Warrant shall be governed by and construed
and enforced in accordance with the internal laws, and not the laws pertaining
to choice or conflicts of laws, of the State of Delaware.
Dated as of December 4, 1996.
DAY RUNNER, INC.
By:
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Mark A. Vidovich, Chief Executive Officer
ATTEST:
- ----------------------------------
Dennis K. Marquardt, Secretary
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<PAGE>
DAY RUNNER, INC.
SUBSCRIPTION FORM
(To be completed and signed only upon exercise of the Warrant)
TO: Day Runner, Inc.
15295 Alton Parkway
Irvine, CA 92718
Attention: Secretary
The undersigned, the holder of the attached Warrant, hereby irrevocably
elects to exercise the right of purchase represented by such Warrant for, and to
purchase thereunder, _______* shares of Day Runner, Inc. Common Stock and
herewith makes payment of $___________ for those shares, and requests that the
certificate(s) for those shares be issued in the name of and delivered to:
(Please print name and address)
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-----------------------------------
-----------------------------------
-----------------------------------
Dated:
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Signature
--------------------------------------------
Print Name
- ---------------
* Insert here the number of shares called for on the face of the Warrant
(or in the case of partial exercise, that portion as to which the Warrant is
being exercised), without making any adjustment for additional Common Stock or
any other securities or property which, under the adjustment provisions of the
Warrant, may be deliverable upon exercise.
<PAGE>
SCHEDULE OF WARRANTHOLDERS
James P. Higgins
Jill Tate Higgins
Charles Miller
Alan R. Rachlin
Boyd I. Willat
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Day Runner, Inc, on Form S-8 of our report dated August 9, 1996 appearing in the
Annual Report on Form 10-K of Day Runner, Inc. for the year ended June 30, 1996.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Long Beach, California
January 21, 1997
