AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 1997
REGISTRATION NO. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________
CALLAWAY GOLF COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
2285 RUTHERFORD ROAD
CARLSBAD, CALIFORNIA 92008-8815
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
ODYSSEY GOLF 401(K) PLAN
(FULL TITLE OF THE PLAN)
CALIFORNIA 95-3797580
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
_____________
DONALD H. DYE, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2285 RUTHERFORD ROAD
CARLSBAD, CALIFORNIA 92008-8815
(760) 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 (1) PRICE (1) FEE
- --------------------------------------------------------------------------------
COMMON STOCK, 100,000 SHARES $31.69 $3,169,000 $961
$.01 PAR VALUE (2)
INTERESTS IN THE
ODYSSEY GOLF
401(K) PROFIT (3) (3) (3) (3)
SHARING PLAN
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(1) ESTIMATED SOLELY FOR PURPOSES OF DETERMINING THE REGISTRATION FEE PURSUANT
TO RULE 457(H) AND 457(C) AND BASED ON THE HIGH AND LOW PRICES OF THE
COMMON STOCK OF CALLAWAY GOLF COMPANY AS REPORTED ON OCTOBER 28, 1997 ON
THE NEW YORK STOCK EXCHANGE.
(2) EACH SHARE OF COMMON STOCK INCLUDES A RIGHT TO PURCHASE ONE ONE-THOUSANDTH
OF A SHARE OF THE COMPANY'S SERIES A JUNIOR PREFERRED STOCK, PAR VALUE $.01
PER SHARE.
(3) IN ADDITION, PURSUANT TO RULE 416(C) UNDER THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT ALSO COVERS AN INDETERMINATE AMOUNT OF INTERESTS TO
BE OFFERED OR SOLD PURSUANT TO THE PLAN. IN ACCORDANCE WITH RULE
457(H)(2), NO SEPARATE FEE CALCULATION IS MADE FOR PLAN INTERESTS.
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INTRODUCTION
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This Registration Statement on Form S-8 is filed by Callaway Golf Company
(the "Company") relating to 100,000 shares of the Company's common stock, $.01
par value (the "Common Stock"), to be offered or sold pursuant to the Odyssey
Golf 401(K) Plan (the "Plan") and an indeterminate number of plan interests to
be offered or sold to employees of Odyssey Golf under the Plan. Odyssey Golf, a
California corporation, is a wholly-owned subsidiary of the Company.
PART I
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INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
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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
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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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:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(ii) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 1997;
(iii) The Company's Current Reports on Form 8-K for the events dated
July 20, August 8 and September 12, 1997;
(iv) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (Registration No.
33-44556), including any amendment or report filed for the
purpose of updating such description; and
(v) The description of the Company's Rights contained in the
Company's Registration Statement on Form 8-A, filed with the
Commission on June 27, 1995, including any amendment or report
filed for the purpose of updating such description.
All annual reports filed by the Plan pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), and all
reports and other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
hereto which indicates that all securities offered hereunder have been sold or
which 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 which 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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None.
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 CGCL, the Company's Restated Articles of
Incorporation, as amended, 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.
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As permitted by the CGCL, the Company's Restated Articles of
Incorporation, as amended, provide that the liability of directors for monetary
damages shall be eliminated to the fullest extent permissible under California
law.
The Company's Bylaws, as amended, 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, as amended,
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, as amended, provide that indemnification
provided for in the Bylaws, as amended, 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, as amended. In this regard, the Company has purchased customary
directors' and officers' liability insurance coverage for its directors and
officers.
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 Restated
Articles of Incorporation, as amended, or Bylaws, as amended. 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
4
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.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit No. Description
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4.1 Restated Articles of Incorporation of the Company (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-8
(No. 33-85692), as filed with the Commission on October 28, 1994,
and incorporated herein by this reference).
4.2 Certificate of Amendment of Articles of Incorporation of the
Company (filed as Exhibit 3.1.2 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994, as filed with the
Commission on March 31, 1995, and incorporated herein by this
reference).
4.3 Certificate of Determination of Rights, Preferences, Privileges
and Restrictions of Series A Junior Participating Preferred Stock
(filed as Exhibit 3.1.2 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1995, as filed with the
Commission on August 12, 1995, and incorporated herein by this
reference).
4.4 Bylaws of the Company (as amended through May 10, 1996) (filed as
Exhibit 4.3 to the Company's Registration Statement on Form S-8
(No. 333-5719), as filed with the Commission on June 11, 1996,
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 Exhibit 4.0 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1995, as filed with the
Commission on August 12, 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), as filed with the Commission on March 29, 1994,
and incorporated herein by this reference).
4.7 Odyssey Golf 401(K) Plan.
23.1 Consent of Independent Accountants.
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (contained on signature page hereto).
5
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 in
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 Company pursuant to Section 13 or Section 15(d) of the
Exchange Act 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 Section 15(d) of the
Securities Exchange Act of 1934, and each filing of the 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 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.
6
SIGNATURES
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The Registrant. Pursuant to the requirements of the Securities Act of
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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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Carlsbad, State of
California, on October 15, 1997.
CALLAWAY GOLF COMPANY
By: /s/ ELY CALLAWAY
----------------
Ely Callaway
Founder, Chairman & Chief of Advertising,
Press & Public Relations
By: /s/ DONALD H. DYE
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Donald H. Dye
President & Chief Executive Officer
POWER OF ATTORNEY
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Each person whose signature appears below constitutes and appoints
DONALD H. DYE, DAVID RANE AND STEVEN C. McCRACKEN his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her 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 or she 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 and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICERS
AND DIRECTORS:
Founder, Chairman & Chief
/s/ ELY CALLAWAY of Advertising, Press & October 15, 1997
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Ely Callaway Public Relations
/s/ DONALD H. DYE President & October 15, 1997
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Donald H. Dye Chief Executive Officer
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ DAVID A. RANE Executive Vice President, Golf October 15, 1997
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David A. Rane Venues & Chief Financial Officer
7
OTHER DIRECTORS:
Director
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William C. Baker
/s/ VERNON E. JORDAN, JR. Director October 15, 1997
- -------------------------
Vernon E. Jordan, Jr.
/s/ BRUCE PARKER Director October 15, 1997
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Bruce Parker
/s/ AULANA L. PETERS Director October 15, 1997
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Aulana L. Peters
/s/ FREDERICK R. PORT Director October 15, 1997
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Frederick R. Port
/s/ RICHARD ROSENFIELD Director October 15, 1997
- ----------------------
Richard Rosenfield
/s/ WILLIAM A. SCHREYER Director October 15, 1997
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William A. Schreyer
/s/ ELMER WARD Director October 15, 1997
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Elmer Ward
/s/ CHARLES J. YASH Director October 15, 1997
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Charles J. Yash
The Plan. Pursuant to the requirements of the Securities Act of
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1933, the Odyssey Golf 401(K) Profit Sharing Plan 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 October 15,
1997.
ODYSSEY GOLF 401(K) PROFIT
SHARING PLAN
By: /s/ RONALD DRAPEAU
-------------------------------
RONALD DRAPEAU
Member, 401(K) Committee
POWER OF ATTORNEY
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Each person whose signature appears below constitutes and appoints
RONALD DRAPEAU, ANNE MARIE OLDHAM and ELIZABETH O'MEA his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her 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
8
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 or she might or could do in
person, hereby ratifying and confirming that all said attorneys-in-fact and
agents, each acting alone, or his or her 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 date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ RONALD DRAPEAU Member, 401(K) Committee October 15, 1997
- ------------------
Ronald Drapeau
/s/ ELIZABETH O'MEA Member, 401(K) Committee October 15, 1997
- -------------------
Elizabeth O'Mea
/s/ GLENN SPEIRS Member, 401(K) Committee October 15, 1997
- ----------------
Glenn Speirs
/s/ ANNE MARIE OLDHAM Member, 401(K) Committee October 15, 1997
- ---------------------
Anne Marie Oldham
9
INDEX TO EXHIBITS
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EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Restated Articles of Incorporation of the Company.*
4.2 Certificate of Amendment of Articles of Incorporation of the
Company.*
4.3 Certificate of Determination of Rights, Preferences, Privileges
and Restrictions of Series A Junior Participating Preferred
Stock.*
4.4 Bylaws of the Company (as amended through May 10, 1996).*
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.*
4.7 Odyssey Golf 401(K) Plan.
23.1 Consent of Independent Accountants.
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (contained on signature page hereof).
* Incorporated by reference.
10