As filed with the Securities and Exchange Commission on August 19, 1996.
Registration No. 333-05581
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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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GOLDEN BEAR GOLF, INC.
(Exact name of registrant as specified in its charter)
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FLORIDA 65-0680880
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) (Identification No.)
11780 U.S. HIGHWAY ONE
NORTH PALM BEACH, FL 33408
(407) 626-3900
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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GOLDEN BEAR GOLF, INC. 1996 STOCK OPTION PLAN
(Full title of the Plan)
RICHARD P. BELLINGER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GOLDEN BEAR GOLF, INC.
11780 U.S. HIGHWAY ONE
NORTH PALM BEACH, FL 33408
(407) 626-3900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) FEE
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<S> <C> <C> <C> <C>
Class A Common Stock, $.01 675,000 shares $18.81 $12,696,750 $4,378.20
par value
================================================================================================================================
<FN>
(1) Estimated solely for purpose of calculating the registration fee pursuant to Rule 457(h) on the basis of
the average of the high and low prices of the Class A Common Stock of Golden Bear Golf, Inc. as
reported on the Nasdaq National Market on August 15, 1996.
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</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Golden Bear Golf, Inc., a
Florida corporation (the "Registrant"), with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") are incorporated by reference herein:
(1) The Registrant's Prospectus dated July 31, 1996, filed with
the SEC pursuant to Rule 424(b)(1) on August 1, 1996.
(2) The description of the Registrant's Class A Common Stock
contained in Registrant's Registration Statement on Form 8-A,
dated July 26, 1996.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 607.0831 of the Florida Business Corporation Act (the
"Florida Act") provides that a director is not personally liable for monetary
damages to the corporation or any person for any statement, vote, decision or
failure to act regarding corporate management or policy, by a director, unless:
(a) the director breached or failed to perform his duties as a director; and (b)
the director's breach of, or failure to perform, those duties constitutes: (i) a
violation of criminal law unless the director had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe his conduct was
unlawful; (ii) a transaction from which the director derived an improper
personal benefit, either directly or indirectly; (iii) a circumstance under
which the director is liable for an improper distribution; (iv) in a proceeding
by, or in the right of the corporation to procure a judgment in its favor or by
or in the right of a shareholder, conscious disregard for the best interests of
the corporation, or willful misconduct; or (v) in a proceeding by or in the
right of someone other than the corporation or a shareholder, recklessness or an
act or omission which was committed in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human rights, safety or
property.
Section 607.0850 of the Florida Act provides that a
corporation shall have the power to indemnify any person who was or is a party
to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he is or was a director, officer
<PAGE>
or employee or agent of the corporation against liability incurred in connection
with such proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. Section 607.0850 also provides that a
corporation shall have the power to indemnify any person, who was or is a party
to any proceeding by, or in the right of, the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, against expenses and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Section 607.0850 further provides that
such indemnification shall be authorized if such person acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be made under
this provision in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the extent that, the
court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability, but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper. Section 607.0850 further provides that to the extent that a
director, officer, employee or agent has been successful on the merits or
otherwise in defense of any of the foregoing proceedings, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith. Under Section
607.0850, any indemnification under the foregoing provisions, unless pursuant to
a determination by a court, shall be made by the corporation only as authorized
in the specific case upon a determination that the indemnification of the
director, officer, employee or agent is proper under the circumstances because
he has met the applicable standard of conduct. Notwithstanding the failure of a
corporation to provide such indemnification, and despite any contrary
determination by the corporation in a specific case, a director, officer,
employee or agent of the corporation who is or was a party to a proceeding may
apply for indemnification to the appropriate court and such court may order
indemnification if it determines that such person is entitled to indemnification
under the applicable standard.
Section 607.0850 also provides that a 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 against any
liability asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of Section
607.0850.
The Registrant's bylaws provide that it shall indemnify its
officers and directors and former officers and directors to the full extent
permitted by law.
The Registrant has entered into indemnification agreements
with each of its officers and directors. The indemnification agreements
generally provide that the Registrant will pay certain amounts incurred by an
officer or director in connection with any civil or criminal action or
proceeding and specifically including actions by or in the name of the
Registrant (derivative suits) where the individual's involvement is by reason of
the fact that he was or is an officer or director. Under the indemnification
agreements, an officer or director will not receive indemnification if such
person is found not to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant. The
agreements provide a number of procedures and presumptions used to determine the
officer's or director's right to indemnification and include a requirement that
in order to receive an advance of expenses, the officer or director must submit
an undertaking to repay any expenses advanced on his behalf that are later
determined he was not entitled to receive.
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<PAGE>
The Registrant's directors and officers are covered by
insurance policies indemnifying them against certain liabilities, including
liabilities under the federal securities laws (other than liability under
Section 16(b) of the Exchange Act), which might be incurred by them in such
capacities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS
5.1 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
(included as part of Exhibit 5.1 above).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (included as part of the Signature Page of this
Registration Statement).
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;
(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 by
the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
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<PAGE>
(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 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 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 SEC such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such issue.
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<PAGE>
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 North Palm Beach, State of Florida, on the 19th day
of August, 1996.
GOLDEN BEAR GOLF, INC.
By: /S/ RICHARD P. BELLINGER
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Richard P. Bellinger
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard P. Bellinger, Mark F. Hesemann
and Thomas P. Hislop and each of them acting alone, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in 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, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each said
attorneys-in-fact and agents or any of them, or their 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 dates indicated.
SIGNATURE TITLE DATE
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/S/ JACK W. NICKLAUS Director and Chairman August 19, 1996
- ----------------------------- of the Board
Jack W. Nicklaus
/S/ RICHARD P. BELLINGER Director, President and August 19, 1996
- ----------------------------- Chief Executive Officer
Richard P. Bellinger
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
/S/ JACK P. BATES Senior Vice President and August 19, 1996
- ----------------------------- Chief Financial Officer
Jack P. Bates (Principal Financial and
Accounting Officer)
/S/ MARK F. HESEMANN Director and Senior August 19, 1996
- ----------------------------- Vice President
Mark F. Hesemann
/S/ THOMAS P. HISLOP Director and Senior August 19, 1996
- ----------------------------- Vice President
Thomas P. Hislop
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIALLY
NUMBER NUMBERED
- ------ DESCRIPTION PAGE
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5.1 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
23.1 Consent of Stearns Weaver Miller Alhadeff & Sitterson, P.A.
(included as part of Exhibit 5.1 above)
23.2 Consent of Arthur Andersen LLP
EXHIBIT 5.1
LAW OFFICES
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A.
MUSEUM TOWER
150 WEST FLAGLER STREET
MIAMI, FLORIDA 33130
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MIAMI (305) 789-3200 BROWARD (954) 463-5440
FAX (305) 789-3395
August 19, 1996
Mr. Richard P. Bellinger
President and Chief Executive Officer
Golden Bear Golf, Inc.
11780 U.S. Highway #1
North Palm Beach, FL 33408
Dear Mr. Bellinger:
We have acted as counsel for Golden Bear Golf, Inc., a Florida
corporation (the "Company"), with respect to the preparation and filing with the
Securities and Exchange Commission (the "SEC") of a Registration Statement on
Form S-8 (the "Registration Statement") covering 675,000 shares (the "Shares")
of the Company's Class A Common Stock, par value $.01 per share (the "Common
Stock"), issuable upon the exercise of options available for grant under the
Company's 1996 Stock Option Plan (the "Plan").
In connection with our opinion, we have examined: (i) the
Registration Statement, including all exhibits thereto, as filed with the SEC;
(ii) the Articles of Incorporation and Bylaws, as amended, of the Company; and
(iii) such other documents, certificates and proceedings as we have considered
necessary or appropriate for the purposes of this opinion. We have also examined
and are familiar with the proceedings taken by the Company to authorize the
issuance of the Shares pursuant to the Plan.
In rendering this opinion, we have undertaken no independent
review of the operations of the Company. Instead, we have relied solely upon the
documents described above. In examining such documents, we have assumed, without
independent investigation: (i)
<PAGE>
Mr. Richard P. Bellinger
August 19, 1996
Page 2
the authenticity of all documents submitted to us as originals; (ii) the
conformity to original documents of all documents submitted to us as certified
or photostatic copies; (iii) the authenticity of the originals of such latter
documents; (iv) that all factual information supplied to us is accurate, true
and complete; and (v) the genuineness of all signatures. In addition, as to
questions of fact material to the opinions expressed herein, we have relied upon
the accuracy of: (i) all representations and warranties as to factual matters
contained in any of the documents submitted to us for purposes of rendering the
opinion; and (ii) factual recitals made in the resolutions adopted by the Board
of Directors of the Company. We have also assumed that the exercise price of
each Share will be in excess of the par value of the Common Stock. We express no
opinion as to federal securities laws or the "blue sky" laws of any state or
jurisdiction.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that the Shares
registered under the Registration Statement which are issuable upon the exercise
of stock options to be granted pursuant to the Plan, will, if and when issued
and delivered by the Company against payment of adequate consideration therefor
in accordance with the Plan, be validly issued, fully paid and non-assessable.
This opinion is intended solely for the Company's use in
connection with the registration of the Shares and may not be relied upon for
any other purpose or by any other person. This opinion may not be quoted in
whole or in part or otherwise referred to or furnished to any other person
except in response to a valid subpoena. This opinion is limited to the matters
expressly stated herein, and no opinion is implied or may be inferred beyond the
matters expressly stated herein. This opinion is rendered as of the date hereof,
and we assume no obligation to update or supplement such opinion to reflect any
facts or circumstances that may hereafter come to our attention or any changes
in facts or law that may hereafter occur. We hereby consent to the inclusion of
this opinion letter as an exhibit to the Registration Statement.
Very truly yours,
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent
to the use of our reports (and to all references to our Firm) included in or
made a part of this Form S-8 Registration Statement (File No. 333-05581).
ARTHUR ANDERSEN LLP
West Palm Beach, Florida,
August 14, 1996.
