S-8 1 d12306ds8.htm S-8 S-8

As filed with the Securities and Exchange Commission on March 8, 2021

Registration No. 333-                    

 

 

 

U.S. SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

CALLAWAY GOLF COMPANY

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   95-3797580

(State or other jurisdiction of

incorporation or organization)

  

(IRS Employer

Identification No.)

2180 RUTHERFORD ROAD

CARLSBAD, CALIFORNIA 92008-7328

(Address of principal executive offices, including Zip Code)

 

 

CALLAWAY GOLF COMPANY 2021 EMPLOYMENT INDUCEMENT PLAN

TOPGOLF INTERNATIONAL, INC. 2015 STOCK INCENTIVE PLAN

TOPGOLF INTERNATIONAL, INC. 2016 STOCK INCENTIVE PLAN

TOPGOLF INTERNATIONAL, INC. NONQUALIFIED STOCK OPTION GRANT NOTICE AND STOCK OPTION AGREEMENT DATED OCTOBER 18, 2016

(Full title of the plan)

 

 

Brian P. Lynch

Executive Vice President and Chief Financial Officer

2180 Rutherford Road

Carlsbad, California 92008

(760) 931-1771

(Name, address and telephone number, including area code, of agent for service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ☒    Accelerated filer   ☐
Non-accelerated filer   ☐    Smaller reporting company   ☐
     Emerging growth company   ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities

to be Registered

  

Amount

to be

Registered(1)

  

Proposed

Maximum

Offering Price

Per Share

  

Proposed

Maximum
Aggregate
Offering Price

  

Amount of

Registration Fee

Common Stock, $0.01 par value

   1,300,000 shares(2)   $27.22(3)   $35,386,000.00   $3,860.61

Common Stock, $0.01 par value

   517,059 shares(4)   $14.58(5)   $7,538,720.22   $822.47

Common Stock, $0.01 par value

   2,501,939 shares(6)   $28.57(7)   $71,480,397.23   $7,798.51

Common Stock, $0.01 par value

   149,439 shares(8)   $21.08(9)   $3,150,174.12   $343.68

Total

   4,468,437   —     $117,555,291.57   $12,825.28

 

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock, $0.01 par value per share (the “Common Stock”), of Callaway Golf Company, a Delaware corporation (the “Registrant”), that become issuable under the Callaway Golf Company 2021 Employment Inducement Plan (the “Inducement Plan”), the Topgolf International, Inc. 2015 Stock Incentive Plan (the “Topgolf 2015 Plan”), the Topgolf International, Inc. 2016 Stock Incentive Plan (the “Topgolf 2016 Plan”) or that certain Topgolf International, Inc. Nonqualified Stock Option Grant Notice and Stock Option Agreement dated October 18, 2016 between Topgolf International, Inc. and WestRiver Management, LLC (the “WestRiver Option Agreement,” and together with the Topgolf 2015 Plan and the Topgolf 2016 Plan, the “Topgolf Plans”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without our receipt of consideration which would increase the number of outstanding shares of Common Stock.

(2)

Represents 1,300,000 shares of Common Stock available for future issuance under the Inducement Plan.

(3)

Estimated solely for the purpose of calculating the registration fee under Rules 457(c) and 457(h) of the Securities Act, on the basis of the average of the high and low sales prices per share of the Common Stock on March 4, 2021, as reported by The New York Stock Exchange.

(4)

Represents 517,059 shares of Common Stock issuable in connection with the assumption of outstanding stock options granted under the Topgolf 2015 Plan by the Registrant in connection with the Acquisition (as defined below).

(5)

Calculated solely for the purposes of computing the amount of the registration fee with respect to the shares of Common Stock issuable under the stock options being assumed by the Registrant under the Topgolf 2015 Plan, under Rule 457(h) of the Securities Act, on the basis of the weighted average exercise price of such outstanding options ($14.58).

(6)

Represents 2,501,939 shares of Common Stock issuable in connection with the assumption of outstanding stock options granted under the Topgolf 2016 Plan by the Registrant in connection with the Acquisition.

(7)

Calculated solely for the purposes of computing the amount of the registration fee with respect to the shares of Common Stock issuable under the stock options being assumed by the Registrant under the Topgolf 2016 Plan, under Rule 457(h) of the Securities Act, on the basis of the weighted average exercise price of such outstanding options ($28.57).

(8)

Represents 149,439 shares of Common Stock issuable in connection with the assumption of outstanding stock options granted to WestRiver Management, LLC under the WestRiver Option Agreement by the Registrant in connection with the Acquisition.

(9)

Calculated solely for the purposes of computing the amount of the registration fee with respect to the shares of Common Stock issuable under the WestRiver Option Agreement by the Registrant, under Rule 457(h) of the Securities Act, on the basis of the exercise price of such outstanding options ($21.08).

Proposed sales to take place as soon after the effective date of this registration statement

as awards granted under the above-named plans are granted, exercised and/or distributed.

 

 

 

INTRODUCTION

This Registration Statement on Form S-8 is filed by Callaway Golf Company, a Delaware corporation (the “Company” or the “Registrant”), relating to the registration of 1,300,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), issuable under the Inducement Plan adopted by the Company’s board of directors on February 3, 2021. The Inducement Plan provides for the grant of equity-based awards in the form of non-qualified stock options, restricted stock awards, restricted stock unit awards, dividend equivalent awards, and other stock-based awards. The Inducement Plan was adopted by the Company’s board of directors without stockholder approval pursuant to Rule 303A.08 of the New York Stock Exchange Rules.

This Registration Statement is also being filed by the Company in relation to the Acquisition (as defined below) and the assumption by the Company of stock options granted under the Topgolf Plans. On March 8, 2021, the Company completed its acquisition of Topgolf International, Inc. pursuant to that certain Agreement and Plan of Merger, dated as of October 27, 2020 (the “Merger Agreement”), with Topgolf International, Inc. surviving the merger as a wholly owned subsidiary of the Company (the “Acquisition”). In connection with the Acquisition, the Company assumed the outstanding and unexercised stock options granted under the Topgolf Plans, which assumed stock options will be exercisable for shares of Common Stock following the Acquisition, with appropriate adjustments to the number of shares of Common Stock for which the assumed stock options are exercisable and the exercise price of such assumed stock options in accordance with the terms of the Merger Agreement. This Registration Statement is being filed for the purpose of registering up to an aggregate of 3,168,437 shares of Common Stock issuable upon the exercise of stock options that were granted under the Topgolf Plans and assumed by the Company pursuant to the Acquisition.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”). The documents containing the information specified in Part I will be delivered to the participants in the Inducement Plan and each Topgolf Plan as required by Rule 428(b)(1).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3.

INCORPORATION OF DOCUMENTS BY REFERENCE.

The following documents, which have previously been filed by the Company with the Commission, are hereby incorporated into this Registration Statement:

 

  (a)

The Company’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March 1, 2021;

 

  (b)

The Company’s Current Reports on Form 8-K, filed with the Commission on February  19, 2021, February  26, 2021, and March 3, 2021 and

 

  (c)

The description of the Common Stock contained in the Company’s Registration Statement on Form S-1 filed December 16, 1991 (Registration No. 33-53732), including any amendment or report filed for the purpose of updating such description.

In addition, all reports and other documents filed by the Registrant pursuant to Sections 13(a), 13(c), 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 indicating that all securities offered hereunder have been sold or all securities then remaining unsold are being deregistered, 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 document or 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 subsequently filed document or 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 document or such statement in such document. Unless expressly incorporated into this Registration Statement, a report (or portion thereof) “furnished” on Form 8-K shall not be incorporated by reference into this Registration Statement. Any statement so modified or superseded shall not be deemed in its unmodified form to constitute a part of this Registration Statement.

 

ITEM 4.

DESCRIPTION OF SECURITIES.

Not Applicable.

 

ITEM 5.

INTERESTS OF NAMED EXPERTS AND COUNSEL.

Not Applicable.

 

ITEM 6.

INDEMNIFICATION OF DIRECTORS AND OFFICERS.

The Company is a Delaware corporation. Section 145(a) of the Delaware General Corporation Law (“DGCL”) provides that a Delaware corporation may indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the 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, had no reasonable cause to believe the person’s conduct was unlawful.

Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Further subsections of DGCL Section 145 provide that:

(1) to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith;

(2) indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled;

(3) the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators; and

(4) the corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145.

Section 145 of the DGCL makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors of the Company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended. The Company’s restated certificate of incorporation and bylaws provide, in effect, that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, the Company will indemnify any person (and the estate of any person) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Company or is or was serving at the request of the Company as a director or officer of another corporation or enterprise. The Company may, in its discretion, similarly indemnify its employees and agents.

The Company’s restated certificate of incorporation relieves its directors from monetary damages to the Company or its stockholders for breach of such director’s fiduciary duty as a director to the fullest extent permitted by the DGCL. Section 102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith, or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.

The Company has entered into indemnification agreements with its non-employee directors that require the Company to indemnify such persons against all expense, liability and loss (including attorneys’ fees), judgments, fines and amounts paid in settlement which are actually incurred in connection with any threatened, pending or completed action, suit or other proceeding, whether civil, criminal, administrative or investigative to which such person is, was or is threatened to be made a party or witness or other participant in, by reason of the fact that such person is or was a director of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company (and its stockholders in the case of an action by or in the right of the Company), and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful and provided, further, that the Company has determined that such indemnification is otherwise permitted by applicable law. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.

The Company currently maintains an insurance policy which, within the limits and subject to the terms and conditions thereof, covers certain expenses and liabilities that may be incurred by directors and officers in connection with proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as a director or officer of the Company.

 

ITEM 7.

EXEMPTION FROM REGISTRATION CLAIMED.

Not Applicable.

ITEM 8.

EXHIBITS.

 

Exhibit
Number

   

Exhibit Description

  3.1†    Restated Certificate of Incorporation of Callaway Golf Company, incorporated herein by this reference to Exhibit  3.3 to Callaway’s Current Report on Form 8-K, as filed with the Commission on May 14, 2020 (file no.  1-10962).
  3.2†    Seventh Amended and Restated Bylaws of Callaway Golf Company, as amended and restated as of May  12, 2020, incorporated herein by this reference to Exhibit 3.4 to Callaway’s Current Report on Form 8-K, as filed with the Commission on May  14, 2020 (file no. 1-10962).
  4.1†    Form of Specimen Stock Certificate for Common Stock, incorporated herein by this reference to Exhibit  4.1 to Callaway’s Current Report on Form 8-K, as filed with the Commission on June 15, 2009 (file no.  1-10962).
  4.2†    Description of Registrant’s Securities Registered Pursuant to Section  12 of the Securities Exchange Act of 1934, incorporated herein by this reference to Exhibit 4.2 to Callaway’s Annual Report on Form  10-K for the fiscal year ended December 31, 2019, as filed with the Commission on March 2, 2020 (file no. 1-10962).
  4.3†    Indenture, dated as of May  4, 2020, between Callaway Golf Company and Wilmington Trust, National Association, incorporated herein by this reference to Exhibit 4.1 to Callaway’s Current Report on Form  8-K, as filed with the Commission on May 4, 2020 (file no. 1-10962).
  4.4†    Form of 2.75% Convertible Senior Notes due May 1, 2026, incorporated herein by this reference to Exhibit  4.1 to Callaway’s Current Report on Form 8-K, as filed with the Commission on May 4, 2020 (file no.  1-10962).
  5.1    Opinion of Latham & Watkins LLP
10.1*    Callaway Golf Company 2021 Employment Inducement Plan
10.2*    Form of Performance Unit Grant Agreement under the Callaway Golf Company 2021 Employment Inducement Plan
10.3*    Form of Stock Unit Grant Agreement under the Callaway Golf Company 2021 Employment Inducement Plan
10.4*    Topgolf International, Inc. 2015 Stock Incentive Plan
10.5*    Form of Nonqualified Stock Option Grant Notice and Stock Option Agreement under the Topgolf International, Inc. 2015 Stock Incentive Plan
10.6*    Form of Incentive Stock Option Grant Notice and Stock Option Agreement under the Topgolf International, Inc. 2015 Stock Incentive Plan
10.7*    Topgolf International, Inc. 2016 Stock Incentive Plan
10.8*    Form of Nonqualified Stock Option Grant Notice and Stock Option Agreement under the Topgolf International, Inc. 2016 Stock Incentive Plan
10.9*    Form of Incentive Stock Option Grant Notice and Stock Option Agreement under the Topgolf International, Inc. 2016 Stock Incentive Plan
10.10*    Topgolf International, Inc. Nonqualified Stock Option Grant Notice and Stock Option Agreement, by and between Topgolf International, Inc. and WestRiver Management, LLC, dated October 18, 2016
23.1    Consent of Latham & Watkins LLP (included in Exhibit 5.1)
23.2    Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm
24.1    Power of Attorney (included in the signature page hereto)

 

†

Previously filed

*

Indicates a contract, compensatory plan or arrangement in which the Company’s directors or executive officers are eligible to participate.

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;

(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 end 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;

(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 (1)(i) and (1)(ii) above do not apply if the Registration Statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant 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, 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, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 the time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Carlsbad, state of California, on this 8th day of March, 2021.

 

CALLAWAY GOLF COMPANY
By:  

/s/ Brian P. Lynch

  Brian P. Lynch
  Executive Vice President, Chief Financial Officer

POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Oliver G. Brewer III and Brian P. Lynch, and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the SEC, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their 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, this report has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

 

Signature    Title    Date

/s/ Oliver G. Brewer III

    President and Chief Executive Officer and Director (Principal Executive Officer)    March 8, 2021
Oliver G. Brewer III   

/s/ Brian P. Lynch

    Executive Vice President, Chief Financial Officer (Principal Financial Officer)    March 8, 2021
Brian P. Lynch   

/s/ Jennifer Thomas

    Vice President and Chief Accounting Officer (Principal Accounting Officer)    March 8, 2021
Jennifer Thomas   

/s/ Samuel H. Armacost

    Director    March 8, 2021
Samuel H. Armacost      

/s/ Scott H. Baxter

    Director    March 8, 2021
Scott H. Baxter      

/s/ John C. Cushman, III

    Director    March 8, 2021
John C. Cushman, III      

/s/ Laura J. Flanagan

    Director    March 8, 2021
Laura J. Flanagan      

/s/ Russell L. Fleischer

    Director    March 8, 2021
Russell L. Fleischer      

/s/ John F. Lundgren

    Chairman of the Board    March 8, 2021
John F. Lundgren      

/s/ Adebayo O. Ogunlesi

    Director    March 8, 2021
Adebayo O. Ogunlesi      

/s/ Linda B. Segre

    Director    March 8, 2021
Linda B. Segre      

/s/Anthony S. Thornley

    Director    March 8, 2021
Anthony S. Thornley