[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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CALLAWAY GOLF COMPANY STOCK OPTION AGREEMENT
BY AND BETWEEN
CALLAWAY GOLF COMPANY AND CHARLES YASH
(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
Title of Maximum Proposed
Securities Amount Offering Maximum Amount of
to be to be Price Per Aggregate Registration
Registered Registered Share (1) Offering(1) Fee
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Common
Stock, $.01 600,000 $25.13 $15,078,000 $5,199.31
par value shares
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Total: 600,000 ------ $15,078,000 $5,199.31
shares
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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 Partaicipating Preferred
Stock, par value $.01 per share.
(2) Computed pursuant to Rule 457(h) upon the basis of the price at which
the options may be exercised and with respect to the maximum number of
securities issuable under the Plan covered by the Registration Statement.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Callaway Golf
Company (the "Company") relating to 600,000 shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), issuable to Charles
Yash, an employee of the Company, pursuant to the Callaway Golf Company Stock
Option Agreement made effective as of May 10, 1996, by and between the Company
and Charles Yash (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.
- -------------------------------------------------
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 or
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 (filed as an exhibit to the Company's
S-8 for its 1996 Stock Option Plan and incorporated herein by this
reference)
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)
4.7 Callaway Golf Company Stock Option Agreement dated as of May 10,
1996, by and between Callaway Golf Company and Charles Yash
5 Opinion of Luce, Forward, Hamilton & Scripps as to the legality of
the securities being registered
23.1 Consent of Price Waterhouse LLP, independent accountants
23.2 Consent of Luce, Forward, Hamilton & Scripps (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. Notwithstanding the foregoing, any increase or
decrease in the 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 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective 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 this 3rd day of
June, 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 and 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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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
4.3 Bylaws of the Company *
4.4 Callaway Golf Company Stock Option
Agreement dated as of May 10, 1996 by and
between Callaway Golf Company and Charles Yash
5 Opinion of Luce, Forward, Hamilton &
Scripps as to the legality of the securities
being registered
23.1 Consent of Price Waterhouse LLP, independent
accountants
23.2 Consent of Luce, Forward, Hamilton & Scripps
(contained in Exhibit 5 hereto)
24 Power of Attorney (contained on signature
page hereof)
* Incorporated by reference.