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As filed with the Securities and Exchange Commission on December 12, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ASHWORTH, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1052000
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2791 LOKER--AVENUE WEST, CARLSBAD, CALIFORNIA 92008
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED
ASHWORTH, INC.
2000 EQUITY INCENTIVE PLAN
(Full title of the plan)
HALINA BALYS
SECRETARY AND CONTROLLER
ASHWORTH, INC.
2791 LOKER AVENUE WEST, CARLSBAD, CALIFORNIA 92008
(Name and address of agent for service)
(760) 438-6610
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Per Aggregate Offering Registration
to be Registered Registered(1)(2) Share(1)(3) Price(1)(3) Fee(1)(3)
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<S> <C> <C> <C> <C>
Common Stock, 1 share $6.9063 $6.9063 $1.00
par value $0.001 per
share(4)
=============================================================================================================================
</TABLE>
(1) This Registration Statement is also deemed, pursuant to Instruction E to
Form S-8 and Interpretation 89 of Section G (Securities Act Forms) of the
Division of Corporate Finance's Manual of Publicly-Available Telephone
Interpretations (July 1997), to relate to 1,899,999 shares previously
registered on Form S-8 (No. 33-92580) in connection with a predecessor
plan, with respect to which a registration fee of $6,060.36 has been paid.
(2) Pursuant to Rule 416(a), this Registration Statement also covers such
additional undetermined number of shares of Common Stock that may be
issued from time to time as a result of the adjustment provisions of the
Amended and Restated Ashworth, Inc. 2000 Equity Incentive Plan described
herein.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) and based on the average of the high
and the low price of the Common Stock of Ashworth, Inc. as reported on
December 8, 2000 on the National Association of Securities Dealers
Automated Quotation System/National Market System.
(4) This Registration Statement includes associated stock purchase rights under
the Rights Agreement dated October 6, 1998, as amended, between the Company
and American Securities Transfer & Trust, Inc.
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INTRODUCTION
This registration statement on Form S-8 (the "Registration Statement")
is filed by Ashworth, Inc. (the "Company") and relates to 1,900,000 shares of
the Company's common stock, par value $0.001 per share (the "Common Stock"),
issuable to eligible directors, officers, employees, consultants and advisors of
the Company and its affiliates under the Amended and Restated Ashworth, Inc.
2000 Equity Incentive Plan (the "2000 Plan"). A total of 4,700,000 shares of the
common stock of Ashworth, Inc. (the "Company") were registered by the Company to
be issued in connection with a predecessor plan, the Company's Amended and
Restated Nonqualified Stock Option Plan (the "Nonqualified Plan"), as follows:
(a) 1,200,000 shares of common stock registered on Form S-8 (File No. 33-35516);
(b) 500,000 additional shares of common stock registered on Form S-8 (File No.
33-41455); and (c) 3,000,000 additional shares of common stock registered on
Form S-8 (File No. 33-92580). At least 1,906,776 shares of the Company's common
stock which were registered in connection with the Nonqualified Plan on Form S-8
(File No. 33-92580) have not been, and will not be, issued under the
Nonqualified Plan. Pursuant to Instruction E to Form S-8 and Interpretation 89
of Section G (Securities Act Forms) of the Division of Corporate Finance's
Manual of Publicly-Available Telephone Interpretations (July 1997), 1,899,999 of
the shares registered in connection with the Nonqualified Plan on Form S-8 (File
No. 33-92580) are carried forward to, and deemed covered by this Registration
Statement on Form S-8 in connection with the 2000 Plan.
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 of Form S-8 constituting the requirements of
a 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. Such information is
not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for fiscal year ended
October 31, 1999;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
January 31, 2000, April 30, 2000, and July 31, 2000;
(c) The Company's Current Reports on Form 8-K dated February 15, 2000
and February 16, 2000;
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(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on May 2, 1990, including any
amendment or report filed for the purpose of updating such description; and
(e) The description of the Company's Rights contained in the Company's
Registration Statement on Form 8-A filed on October 9, 1998, including any
amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company after
the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment hereto which indicates
that all securities offered hereby have been sold, or which deregisters all
securities remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and shall be a part hereof from the date of filing 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 which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as to modified or superseded, to constitute a part of this Registration
Statement.
The Company shall provide without charge to each participant in the
2000 Plan, upon written or oral request of such person, a copy of any and all of
the information that has been incorporated by reference in this Registration
Statement. Such requests should be directed to: Secretary, Ashworth, Inc., 2791
Loker Avenue West, Carlsbad, California 92008, (760) 438-6610.
ITEM 4. Description of Securities.
Not Applicable
ITEM 5. Interests of Named Experts and Counsel.
Not Applicable
ITEM 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the Company
may indemnify its directors and officers against liabilities they may incur in
such capacities, including liabilities under the Securities Act. The Company's
Certificate of Incorporation, as amended, provides that, pursuant to Delaware
law, its directors shall not be liable for monetary damages for breach of the
directors' fiduciary duty of care to the Company and its stockholders. This
provision in the certificate of incorporation does not eliminate the duty of
care, and in appropriate circumstances equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Company or its stockholders, for acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemption's that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Company's Amended
and Restated By-Laws
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require it to indemnify its directors and officers to the fullest extent
permitted by the Delaware General Corporation Law.
ITEM 7. Exemption from Registration Claimed.
Not Applicable
ITEM 8. Exhibits.
3.1 Certificate of Incorporation as filed March 19, 1987 with the
Secretary of State of Delaware, Amendment to Certificate of
Incorporation as filed August 3, 1987 with the Secretary of
State of Delaware and Amendment to Certificate of
Incorporation as filed April 26, 1991 with the Secretary of
State of Delaware (filed as Exhibit 3(a) to Registrant's
Registration Statement dated February 21, 1992 (File No.
33-45078)) and incorporated herein by reference).
3.2 Amendment to Certificate of Incorporation as filed April 6,
1994 (filed as Exhibit 3(a) to the Registrant's Form 10-K for
fiscal year ended October 31, 1994 and incorporated herein by
reference).
3.2 Amended and Restated By-Laws (filed as Exhibit 3.1 to Current
Report on Form 8-K filed on February 23, 2000 and incorporated
herein by reference).
3.3 Specimen certificate for Common Stock, par value $.001, of the
Registrant (filed as Exhibit 4(a) to Registrant's Registration
Statement dated November 4, 1987 (File No. 33-16714-D) and
incorporated herein by reference).
3.4 Rights Agreement dated as of October 6, 1998 by and between
Ashworth, Inc. and American Securities Transfer & Trust, Inc.,
as amended on February 22, 2000 (filed as Exhibit 4.1 to
Registrant's Current Report on Form 8-K filed on March 14,
2000 and incorporated herein by reference).
4.1 Amended and Restated Ashworth, Inc. 2000 Equity Incentive
Plan.
5 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (contained on signature page hereto).
ITEM 9. Undertakings.
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 (unless the
information required by paragraphs (i) and (ii) below 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 this Registration Statement):
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
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(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 this 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 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.
(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.
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.
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, Ashworth, Inc.
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 December 11, 2000.
ASHWORTH, INC.,
a Delaware corporation
By: /s/ Randall L. Herrel, Sr.
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Randall L. Herrel, Sr.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Randall L. Herrel, Sr. and Terence W.
Tsang, and each of them, 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 on Form
S-8, and to file such amendments, together with all exhibits 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 or necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifies and confirms all that each of said
attorneys-in-fact and agents, and each of them, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons, including a
majority of the Board of Directors, in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Randall L. Herrel, Sr. President, Chief Executive Officer and December 11, 2000
------------------------------------------ Director (Principal Executive Officer)
/s/ Terence W. Tsang Senior Vice President - Finance, Treasurer December 11, 2000
------------------------------------------ and Chief Financial Officer (Principal
Financial Officer and Principal Accounting
Officer)
/s/ Stephen Bartolin, Jr. Director December 11, 2000
------------------------------------------
/s/ Stephen G. Carpenter, Jr. Director December 11, 2000
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/s/ Andre P. Gambucci Director December 11, 2000
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/s/ John M. Hanson, Jr. Director December 11, 2000
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/s/ H. Michael Hecht Director December 11, 2000
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/s/ James W. Nantz Director December 11, 2000
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EXHIBITS INDEX
3.1 Certificate of Incorporation as filed March 19, 1987 with the
Secretary of State of Delaware, Amendment to Certificate of
Incorporation as filed August 3, 1987 with the Secretary of
State of Delaware and Amendment to Certificate of
Incorporation as filed April 26, 1991 with the Secretary of
State of Delaware (filed as Exhibit 3(a) to Registrant's
Registration Statement dated February 21, 1992 (File No.
33-45078)) and incorporated herein by reference).
3.2 Amendment to Certificate of Incorporation as filed April 6,
1994 (filed as Exhibit 3(a) to the Registrant's Form 10-K for
fiscal year ended October 31, 1994 and incorporated herein by
reference).
3.2 Amended and Restated By-Laws (filed as Exhibit 3.1 to Current
Report on Form 8-K filed on February 23, 2000 and incorporated
herein by reference).
3.3 Specimen certificate for Common Stock, par value $.001, of the
Registrant (filed as Exhibit 4(a) to Registrant's Registration
Statement dated November 4, 1987 (File No. 33-16714-D) and
incorporated herein by reference).
3.4 Rights Agreement dated as of October 6, 1998 by and between
Ashworth, Inc. and American Securities Transfer & Trust, Inc.,
as amended on February 22, 2000 (filed as Exhibit 4.1 to
Registrant's Current Report on Form 8-K filed on March 14,
2000 and incorporated herein by reference).
4.1 Amended and Restated Ashworth, Inc. 2000 Equity Incentive
Plan.
5 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (contained on signature page hereto).
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