As filed with the Securities and Exchange Commission
on February 9, 2004.
Registration No. 333-______________
=================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
ADAMS GOLF, INC.
(Exact name of Registrant as specified in its charter)
Delaware 75-2320087
------------------------------ ------------------------
(State or other jurisdiction (I.R.S. Employer
of Incorporation Identification No.)
300 Delaware Avenue, Suite 572
Wilmington, Delaware 19801
------------------------------ ------------------------
(Address of Principal (Zip Code)
Executive Offices)
-------------------------------
2002 EQUITY INCENTIVE PLAN
(Full title of the plan(s))
-------------------------------
Copy to:
Eric Logan Joseph A. Hoffman, Esq.
Adams Golf, Ltd. ANDREWS KURTH LLP
2801 East Plano Parkway 1717 Main Street, Suite 3700
Plano, Texas 75074 Dallas, Texas 75201
(972) 673-9000 (214) 659-4593
(Name and address of
agent for service)
(302) 427-5892
(Telephone number, including area code,
of agent for service)
_________________________
CALCULATION OF REGISTRATION FEE
===========================================================================
Proposed
Title of Proposed Proposed
Securities Amount to Maximum Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
------------ ---------- -------------- -------------- ------------
Common Stock 6,653,481 $0.98 (2) $6,520,411(2) $826.14
$0.001 par shares(1)
value
===========================================================================
(1) The securities to be registered represent shares of
Common Stock reserved for issuance under the Adams Golf, Inc.
2002 Equity Incentive Plan (the "Plan"). Pursuant to Rule 416,
shares of Common Stock issuable pursuant to the exercise of
options granted under the Plan in order to prevent dilution
resulting from any future stock split, stock dividend or similar
transaction are also being registered hereunder.
(2) Estimated pursuant to Rule 457(h) solely for the
purpose of calculating the registration fee. The maximum
proposed offering price at which unissued options may be
exercised under the Plan (6,653,481 shares of Common Stock) is
$6,520,411 calculated on the basis of the average of the high and
low sale price per share of Common Stock as quoted on the over-the-
counter bulletin board on February 2, 2004, ($0.98), in
accordance with Rule 457(c).
==============================================================
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
* Information required by Part I to be contained in the
Section 10(a) Prospectus is omitted from the 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.
Adams Golf, Inc. (the "Company") hereby incorporates by
reference in this Registration Statement the following documents
previously filed or to be filed with the Securities and Exchange
Commission (the "Commission"):
(a) the Company's Annual Report on Form 10-K for the year
ended December 31, 2002, filed with the Commission on
April 1, 2003;
(b) the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2003 filed with the
Commission on May 7, 2003, the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended June
30, 2003 filed with the Commission on August 6, 2003,
and the Company's Quarterly Report on Form 10-Q for the
Fiscal Quarter ended September 30, 2003 filed with the
Commission on November 12, 2003;
(c) the description of the Company's common stock, par
value $0.001 per share (the "Common Stock"), contained
in the Company's Registration Statement on Form S-1
(File No. 333-51715), including any amendment or report
filed for the purpose of updating such description; and
(d) all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, subsequent
to the date of this Registration Statement shall be
deemed to be incorporated herein by reference and to be
a part hereof from the date of filing of such documents
until such time as there shall have been filed a post-
effective amendment that indicates that all securities
offered under the Registration Statement have been sold
or that deregisters all securities remaining unsold at
the time of the amendment.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration
Statement to the extent that the statement contained herein or in
any subsequently filed document that also is or is deemed to be
incorporated by reference herein, or in any document forming any
part of the Section 10(a) Prospectus to be delivered to
participants in connection with, modifies or supersedes such
statement. 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.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
-2-
Item 6. Indemnification of Directors and Officers.
Article VII of the Company's Certificate of Incorporation
provides that the Company shall indemnify its directors and
officers to the fullest extent permitted by the Delaware General
Corporation Law ("DGCL").
Section 145 of DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or
agents against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by them in connection with any action, suit or
proceeding brought by third parties by reason of the fact that
they were or are directors, officers, employees and agents, acted
in good faith and in manner they reasonably believe 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 their conduct was unlawful. In a derivative
action (i.e., one by or in the right of the corporation),
indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents
in connection with the defense or settlement of any action or
suit, and only with respect to a matter as to which they shall
have acted in good faith and in a manner they reasonably believed
to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such persons have
been adjudged liable to the corporation, unless and only to the
extent that the court in which the action or suit was brought
shall determine upon application that the defendant directors,
officers, employees or agent are fairly and reasonably entitled
to indemnify for such expenses, despite such adjudication of
liability.
Section 102(b)(7) of the DGCL permits a corporation
organized under Delaware law to eliminate or limit the personal
liability of a director to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director
subject to certain limitations. Article IX of the Certificate of
Incorporation includes the following provision:
"A director of this corporation shall not be personally
liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the directors' 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. If the DGCL is hereafter amended to authorize
corporate action further eliminating or limiting the
personal liability of directors, then the liability of a
director of the corporation shall be eliminated or limited
to the fullest extent permitted by the DGCL, as so amended.
Any repeal or modification of the foregoing provisions of
this Article IX by the stockholders of the corporation shall
not adversely affect any right or protection of a director
of the corporation existing at the time of such repeal or
modification."
Article XI of the Company's Bylaws further provides for the
indemnification of, and advancement of expenses to, its officers
and directors in certain circumstances.
We maintain liability insurance for our directors and
officers covering, subject to certain exceptions, any actual or
alleged negligent act, error, omission, misstatement, misleading
statement, neglect or breach of duty by such directors or
officers, individually or collectively, in the discharge of their
duties in their capacity as directors or officers of our company.
Item 7. Exemption from Registration Claimed.
Not applicable.
-3-
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
-------- -----------------------------------------------
4.1 Adams Golf 2002 Equity Incentive Plan (the
"Plan") (incorporated by reference to Exhibit
10.6 of the Registrant's Current Report on Form
8-K/A filed with the Commission on December 26,
2001).
4.2 Form of Stock Option Agreement under 2002 Equity
Incentive Plan of Adams Golf, Inc. (filed
herewith).
5.1 Opinion of Andrews & Kurth LLP (filed herewith)
23.1 Consent of Andrews & Kurth LLP (included in
their opinion filed as Exhibit 5.1) (filed
herewith)
23.2 Consent of KPMG LLP (filed herewith)
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement: (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement; and (iii) to include any material
information with respect to the plan of distribution not
previously disclosed in the registration statement or any
material change to such information in the registration
statement; provided, however, that clauses (i) and (ii) do
not apply if the information required to be included in a
post-effective amendment by those clauses is contained in
periodic reports filed by the Registrant pursuant to Section
13 or 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 Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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.
[Signature Page Follows]
-4-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all 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 Plano in the State of Texas, on
February 9, 2004.
ADAMS GOLF, INC.
By: /s/ B.H. (Barney) Adams
---------------------------
B.H. (Barney) Adams
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons and in the capacities indicated on February 9,
2004.
Signature Title
------------------------------ ------------------------------------
By: /s/ B.H. (Barney) Adams Chairman of the Board
--------------------------
B. H. (Barney) Adams
By: /s/ Oliver G. Brewer III Chief Executive Officer, President
-------------------------- and Director
Oliver G. Brewer III
By: /s/ Eric Logan Chief Financial Officer (Principal
-------------------------- Accounting Officer)
Eric Logan
By: /s/ Mark R. Mulvoy Director
--------------------------
Mark R. Mulvoy
By: /s/ Paul F. Brown Director
--------------------------
Paul F. Brown
By: /s/ Stephen R. Patchin Director
--------------------------
Stephen R. Patchin
-5-
EXHIBIT INDEX
Exhibit Description
------- -----------------------------------------------
4.1 Adams Golf 2002 Equity Incentive Plan (the
"Plan") (incorporated by reference to Exhibit
10.6 of the Registrant's Current Report on Form
8-K/A filed with the Commission on December 26,
2001).
4.2 Form of Stock Option Agreement under 2002 Equity
Incentive Plan of Adams Golf, Inc. (filed
herewith).
5.1 Opinion of Andrews & Kurth LLP (filed herewith)
23.1 Consent of Andrews & Kurth LLP (included in
their opinion filed as Exhibit 5.1) (filed
herewith)
23.2 Consent of KPMG LLP (filed herewith)