[DESCRIPTION]FORM S-8
As filed with the Securities and Exchange Commission on June 11, 1996
Registration No. 33-___________
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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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CALLAWAY GOLF COMPANY
(Exact name of Registrant as specified in its charter)
2285 Rutherford Road
Carlsbad, California 92008-8815
(Address of principal executive offices)
CALIFORNIA 95-3797580
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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1996 STOCK OPTION PLAN
(Full title of the plan)
DONALD. H. DYE, ESQ.
President
and Chief Executive Officer
2285 Rutherford Road
Carlsbad, California 92008-8815
(619) 931-1771
(Name, address, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be Price Per Offering Registration
to be Registered Registered Share (2) Price (2) Fee
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Common Stock 2,000,000 $30.19 $60,380,000 $20,820.69
$.01 par value(1) shares(1)
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(1) Each share of Common Stock includes a Right to purchase one
one-thousandth of a share of the Company's Series A
Junior Participating Preferred Stock, par value $.01 per share.
(2) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(h) and based on the average of the high and
low prices of the Common Stock of Callaway Golf Company as reported
on June 5, 1996 on the New York Stock Exchange.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Callaway Golf Company
(the "Company") relating to 2,000,000 shares of the Company's common stock,
par value $.01 per share (the "Common Stock"), issuable to employees of
the Company under the Callaway Golf Company 1996 Stock Option Plan
(the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents, which previously have been filed by the Company
with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form S-1
(Registration No. 33-53732), including any amendment or
report filed for the purpose of updating such description; and
(d) The description of the Company's Rights contained in the
Company's Registration Statement on Form 8-A filed on
June 27, 1995, including any amendment or report filed for
the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment hereto that indicates
that all securities offered hereunder have been sold or that deregisters
all securities then remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing
of such documents.
For purposes of this Registration Statement, any statement contained in a
document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed document that also is
or is deemed to be incorporated herein by reference modifies or supersedes
such statement in such document. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under Section 317 of the California General Corporation Law
(the "CGCL"), the Company is, in certain circumstances, permitted to
indemnify its directors and officers against certain expenses (including
attorneys' fees), judgments, fines, settlements and other amounts actually
and reasonably incurred in connection with threatened, pending or completed
civil, criminal, administrative or investigative actions or proceedings
(other than an action by or in the right of the Company), by reason of the
fact that such persons were or are directors or officers of the Company,
if such persons acted in good faith and in a manner they reasonably believed
to be in the best interest of the Company, and with respect to any criminal
action or proceeding, had no reasonable cause to believe their conduct
was unlawful. In addition, the Company is in certain circumstances
permitted to indemnify its directors and officers who were or are parties
or were threatened to be made parties to any threatened, pending
or completed action by or in the right of the Company to procure a judgment
in its favor by reason of the fact that such persons are or were directors
or officers of the Company, against expenses actually and reasonably
incurred by such persons in connection with the defense or settlement of
the action, if such persons acted in good faith and in a manner they
believed to be in the best interests of the Company and its shareholders.
As permitted by the CGCL, the Amended and Restated Articles of
Incorporation of the Company provide that the Company is authorized to
provide indemnification of its officers and directors for breach of duty
to the Company and its shareholders through Bylaw provisions or through
agreements with the directors or officers, or both, in excess of the
indemnification otherwise permitted by Section 317 of the CGCL, subject
to the limits on such excess indemnification set forth in Section
204 of the CGCL.
Under Section 204(a)(10) of the CGCL, the personal liability of a
director for monetary damages in an action brought by or in the right of
the corporation for breach of the director's duty to the corporation may
be eliminated, except for the liability of a director resulting from acts
or omissions involving intentional misconduct or a knowing and culpable
violation of the law, acts or omissions that a director believes to be
contrary to the best interests of the corporation or its shareholders or
that involve the absence of good faith, any transaction from which a director
derived an improper personal benefit, acts or omissions showing a reckless
disregard for the director's duty, acts or omissions constituting
an unexcused pattern of inattention to the director's duty, or the
making of an illegal distribution to shareholders or an illegal loan or
guaranty.
As permitted by the CGCL, the Company's Amended and Restated Articles of
Incorporation provide that the liability of directors for monetary damages
shall be eliminated to the fullest extent permissible under California law.
The Company's Bylaws provide that the Company shall indemnify and hold
harmless any person who is or was a director or officer of the Company, or
is or was serving at the request of the Board of Directors of the Company
as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or other persons serving the Company
subject to limitations imposed by applicable law, from and against any
expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative to the fullest extent permitted by applicable law. The
Company's Bylaws further provide that the Company shall advance to such
persons expenses incurred in defending any proceeding prior to the final
disposition thereof to the fullest extent and in the manner permitted by the
law.
The Company's Bylaws provide that indemnification provided for in the
Bylaws shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled and that the Company may purchase and
maintain insurance on behalf of an agent of the Company against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
Company would have the power to indemnify him or her against such
liabilities under such Bylaws.
The Company has entered into Indemnification Agreements with its outside
directors. These Indemnification Agreements require the Company to indemnify
each outside director if he or she is or was a party or other participant
in any suit or proceeding individually or in the right of the Company or
any subsidiary of the Company, by reason of (a) the fact that such outside
director is or was a director of the Company or any subsidiary, (b) any
action or inaction on the part of such outside director while a director
of the Company or any subsidiary, and/or (c) the fact that such outside
director is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or other enterprise.
The indemnification extends to all expenses, liabilities, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
the outside director in connection with such action, suit or proceeding if
the outside director acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the Company and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was unlawful. The Indemnification
Agreements require that, to the extent that the outside director has
been successful on the merits or otherwise in defense of any such action,
suit or proceeding, the Company indemnify such outside director against
expenses actually and reasonably incurred by him or her in connection
therewith. The Company must further advance, within 30 days of a written
request, all expenses incurred by the outside director in connection with
the investigation, defense, settlement or appeal of any such action or
proceeding; provided, however, that the outside director must repay
such amounts advanced if it is ultimately determined that he or she is not
entitled to be indemnified by the Company. Under the Indemnification
Agreements, the outside directors are permitted to petition the court to
seek recovery of amounts due under the Indemnification Agreements and to
recover the expenses of seeking such recovery if he or she is successful.
The Indemnification Agreements also provide that the Company will indemnify
the outside directors to the fullest extent permitted by law. Absent the
Indemnification Agreements, indemnification that might be made available
to outside directors could be changed by amendments to the Company's
Amended and Restated Articles of Incorporation or Bylaws. Benefits under
the Indemnification Agreements are not available, however, to indemnify an
outside director (a) with respect to proceedings or claims initiated by the
outside director that are not by way of defense (unless authorized by the
Board of Directors); (b) with respect to liability for transactions from
which the outside director derived an improper personal benefit; (c) if the
outside director is determined to have committed acts of active and
deliberate dishonesty; (d) for expenses or liabilities that have been paid
to the outside director under an insurance policy maintained by the
Company or otherwise by any other means; or (e) for an accounting of
profits realized from the purchase and sale of securities within the
meaning of Section 16(b) of the Securities Exchange Act of 1934.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit Number Description
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4.1 Restated Articles of Incorporation of the Company (filed as an
exhibit to the Company's Registration Statement on Form S-8
(No. 33-85692) and incorporated herein by this reference)
4.2 Certificate of Amendment of Articles of Incorporation of the
Company, effective February 10, 1995 (filed as an exhibit to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1994, and incorporated herein by this reference)
4.3 Bylaws of the Company, as amended May 10, 1996
4.4 Certificate of Determination of Rights, Preferences, Privileges
and Restrictions of Series A Junior Participating Preferred
Stock (filed as an exhibit to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1995, and
incorporated herein by this reference)
4.5 Rights Agreement by and between the Company and Chemical
Mellon Shareholder Services, as Rights Agent, dated as of
June 21, 1995 (filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995, and
incorporated herein by this reference)
4.6 Dividend Reinvestment and Stock Purchase Plan (filed as the
Prospectus in the Company's Registration Statement on Form S-3
(No. 33-77024) and incorporated herein by this reference)
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of
the securities being registered
23.1 Consent of Price Waterhouse LLP, independent accountants
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in
Exhibit 5 hereto)
24 Power of Attorney (contained on signature page hereto)
Item 9. Undertakings.
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(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;
(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933 each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(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 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.
(c) 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 of whether such indemnification by it
is against public policy as expressed in the Act and will be governed by a
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Carlsbad, State of California, on June 3, 1996.
CALLAWAY GOLF COMPANY
By: /s/ Donald H. Dye
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Donald H. Dye, Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
DONALD H. DYE, DAVID RANE and STEVEN C. McCRACKEN his true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and
stead, at 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, granting unto said
attorneys-in-fact and agents, each acting alone, with full powers and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as full to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
that all said attorneys-in-fact and agents, each acting alone, 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 indicated on the date indicated.
Signature Title Date
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/s/ Ely Callaway Director, Chairman of the June 3, 1996
- ------------------------- Board of Directors
Ely Callaway
/s/ Donald H. Dye Chief Executive Officer, June 3, 1996
- ------------------------- President, Chief Operating
Donald H. Dye Officer and Director
(Principal Executive Officer)
/s/ David Rane Executive Vice President and June 3, 1996
- ------------------------- Chief Financial Officer
David Rane (Principal Financial and
Accounting Officer)
/s/ Frederick R. Port Director and Executive June 3, 1996
- ------------------------- Vice President, International
Frederick R. Port Sales, Licensing and
Business Development
/s/ Michael Sherwin Director June 3, 1996
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Michael Sherwin
/s/ William C. Baker Director June 3, 1996
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William C. Baker
/s/ Richard Rosenfield Director June 3, 1996
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Richard Rosenfield
INDEX TO EXHIBITS
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Sequentially
Numbered
Exhibit No. Description Page
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4.1 Restated Articles of Incorporation of *
the Company
4.2 Certificate of Amendment of Articles of *
Incorporation of the Company, effective
February 10, 1995
4.3 Bylaws of the Company, as amended May 10, 1996
4.4 Certificate of Determination of Rights, *
Preferences, Privileges and Restrictions
of Series A Junior Participating Preferred
Stock
4.5 Rights Agreement by and between the Company *
and Chemical Mellon Shareholder Services, as
Rights Agent, dated as of June 21, 1995
4.6 Dividend Reinvestment and Stock Purchase Plan *
5 Opinion of Gibson, Dunn & Crutcher LLP as to
legality of the securities being registered
23.1 Consent of Price Waterhouse LLP, independent
accountants
23.2 Consent of Gibson, Dunn & Crutcher LLP
(contained in Exhibit 5 hereto)
24 Power of Attorney (contained on signature
page hereof)
* Incorporated by reference.