-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DW5N2xjQ2p6r4O7hjDE6mPbXP7ixuGgTGiXUTT+xWPm7bAwuN/DnLPBtxpNfABmr eVKEkxJWPeiTajU/po4CvQ== 0000909143-04-000009.txt : 20040209 0000909143-04-000009.hdr.sgml : 20040209 20040209162456 ACCESSION NUMBER: 0000909143-04-000009 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040209 EFFECTIVENESS DATE: 20040209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADAMS GOLF INC CENTRAL INDEX KEY: 0001059763 STANDARD INDUSTRIAL CLASSIFICATION: [3949] IRS NUMBER: 752320087 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-112622 FILM NUMBER: 04578319 BUSINESS ADDRESS: STREET 1: 2801 EAST PLANO PARKWAY CITY: PLANO STATE: TX ZIP: 75074 BUSINESS PHONE: 9726739000 MAIL ADDRESS: STREET 1: 2801 EAST PLANO PARKWAY CITY: PLANO STATE: TX ZIP: 75074 S-8 1 adams-s8.txt REGISTRATION ON FORM S-8 - 2002 EQUITY INCENTIVE PLAN 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) EX-4.2 3 adams-ex42.txt FORM OF STOCK OPTION AGREEMENT EXHIBIT 4.2 STOCK OPTION AGREEMENT UNDER 2002 EQUITY INCENTIVE PLANOF ADAMS GOLF, INC. STOCK OPTION AGREEMENT (this "Agreement") entered into as of _______ between ADAMS GOLF, INC., a Delaware corporation (the "Corporation"), and ___________________, an employee (as that term is defined by the Corporation's 2002 Equity Incentive Plan (the "Plan")) (the "Optionee," which term as used herein shall be deemed to include any successor to the Optionee by will or by the laws of descent and distribution, unless the context shall otherwise require, as provided in the Plan). Pursuant to the Plan, the Compensation Committee approved the issuance to the Optionee, effective as of the date set forth above, of a Non-qualified Stock Option to purchase up to an aggregate of _____ shares of common stock, par value $.001, of the Corporation (the "Common Stock"), at the exercise strike price of $__ per share (the "Option Price") upon the terms and conditions hereinafter set forth. (Capitalized terms used herein but not defined herein shall have the meaning ascribed to them in the Plan). NOW, THEREFORE, in consideration of the mutual premises and undertakings hereinafter set forth, the parties hereto agree as follows: 1. OPTION; OPTION PRICE. On behalf of the Corporation, the Administering Body hereby grants as of the date of this Agreement to the Optionee the option (the "Option") to purchase, subject to the terms and conditions of this Agreement and the provisions of the Plan (which is incorporated by reference herein and which in all cases shall control in the event of any conflict with the terms, definitions and provisions of this Agreement), _____ shares of Common Stock of the Corporation at an exercise strike price of $____ per share. A copy of the Plan has been supplied to the Optionee, and the Optionee by executing this Agreement hereby acknowledges receipt thereof. 2. TEN-YEAR TERM. The term (the "Option Term") of the Option shall commence on the date of this Agreement and shall terminate on the tenth (10th) anniversary of the date of this Agreement, unless such Option shall theretofore have been terminated in accordance with the terms hereof or the provisions of the Plan. 3. VESTING; RESTRICTIONS ON EXERCISE. (a) Subject to the provisions of Sections 5 and 8 hereof, and unless accelerated, as set forth in the Plan or as provided herein, the Option granted hereunder shall vest and become exercisable for the number of shares set forth opposite the dates noted below (the "Option Vesting Schedule"). Cumulative Number Dates of Vested Shares ------------ ------------------- (b) If the Corporation shall consummate any merger, consolidation or other reorganization involving a Change in Control (a "Reorganization") in which holders of shares of Common Stock are entitled to receive in respect of such shares any securities, cash or other consideration (including, without limitation, a different number of shares of Common Stock), the Option shall vest in its entirety and be exercisable, in accordance with the Plan and this Agreement, for the kind and amount of securities, cash and/or other consideration receivable upon such Reorganization by a holder of the same number of shares of Common Stock as are subject to the Option immediately prior to such Reorganization. Any adjustments will be made to the terms of the Option in the sole discretion of the Administering Body as it may deem appropriate to give effect to the Reorganization. -1- (c) Subject to the provisions of Sections 5 and 8 hereof, shares as to which the Option becomes exercisable pursuant to the foregoing provisions may be purchased at any time thereafter prior to the expiration or termination of the Option. 4. TERMINATION OF OPTION. If not terminated earlier under some other provision of the plan or this Agreement, any unexercised portion of the Option shall automatically and without notice terminate and become null and void 30 days after the Optionees last official date of employment as determined by the company or board membership, as applicable. 5. PROCEDURE FOR EXERCISE. (a) Subject to the requirements of Section 8, the Option may be exercised, from time to time, in whole or in part (but for the purchase of a whole number of shares only), by delivery of a written notice, a form of which has been attached as Annex A hereto (the "Notice"), from the Optionee to the Secretary of the Corporation, which Notice shall: (i) state that the Optionee elects to exercise the Option; (ii) state the number of vested shares with respect to which the Option is being exercised (the "Optioned Shares"); (iii) state the date upon which the Optionee desires to consummate the purchase of the Optioned Shares (which date must be prior to the termination of such Option and no later than thirty (30) days after the date of receipt of such Notice); (iv) include any representations of the Optionee required under Section 8(c); and (v) if the Option shall be exercised pursuant to Section 9 by any person other than the Optionee, include evidence to the satisfaction of the Administering Body of the right of such person to exercise the Option. (b) Payment of the Option Price for the Optioned Shares shall be made in U.S. dollars by personal check, bank draft or money order payable to the order of the Corporation or by wire transfer. (c) The Corporation shall issue a stock certificate in the name of the Optionee (or such other person exercising the Option in accordance with the provisions of Section 9) for the Optioned Shares as soon as practicable after receipt of the Notice and payment of the aggregate Option Price for such shares. 6. NO RIGHTS AS A STOCKHOLDER. The Optionee shall have no rights as a stockholder of the Corporation with respect to any Optioned Shares until the date the Optionee or his nominee (which, for purposes of this Agreement, shall include any third party agent selected by the Administering Body to hold such Option Shares on behalf of the Optionee), guardian or legal representative is the holder of record of such Optioned Shares. 7. ADJUSTMENTS. (a) If at any time while the Option is outstanding, (1) there shall be any increase or decrease in the number of issued and outstanding shares of Common Stock through the declaration of a stock split, spin-off, combination or exchange of shares of Common Stock or (2) the value of the outstanding shares of common stock is reduced by reason of an extraordinary cash dividend, then and in each such event appropriate adjustments shall be made in the number of shares and the exercise price per share covered by the Option, so that the same proportion of the Corporation's issued and outstanding shares of Common Stock shall remain subject to purchase at the same aggregate exercise price. -2- (b) Except as otherwise expressly provided herein, the issuance by the Corporation of shares of its capital stock of any class, or securities convertible into shares of capital stock of any class, either in connection with a direct sale or upon the exercise of rights or warrants to subscribe therefore, or upon conversion of shares or obligations of the Corporation convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of or exercise price of shares of Common Stock covered by the Option. (c) Without limiting the generality of the foregoing, the existence of the Option shall not affect in any manner the right or power of the Corporation to make, authorize or consummate (i) any or all adjustments, recapitalizations, reorganizations or other changes in the Corporation's capital structure or its business; (ii) any merger or consolidation of the Corporation; (iii) any issue by the Corporation of debt securities, or preferred or preference stock that would rank above the shares of Common Stock covered by the Option; (iv) the dissolution or liquidation of the Corporation; (v) any sale, transfer or assignment of all or any part of the assets or business of the Corporation; or (vi) any other corporate act or proceeding, whether of a similar character or otherwise. 8. ADDITIONAL PROVISIONS RELATED TO EXERCISE. (a) The Option shall be exercisable only in accordance with this Agreement and the terms of the Plan, including the provisions regarding the period when the Option may be exercised and the number of shares of Common Stock that may be acquired upon exercise. (b) The Option may not be exercised as to less than one hundred (100) shares of Common Stock at any one time unless less than one hundred (100) shares of Common Stock remain to be purchased upon the exercise of the Option. (c) To exercise the Option, the Optionee shall follow the provisions of Section 5 hereof. Upon the exercise of the Option at a time when there is not in effect a registration statement under the Securities Act of 1933, as amended (the "Securities Act") relating to the shares of Common Stock issuable upon exercise of the Option, the Administering Body in its discretion may, as a condition to the exercise of the Option, require the Optionee (i) to represent in writing that the shares of Common Stock received upon exercise of the Option are being acquired for investment and not with a view to distribution and (ii) to make such other representations and warranties as are deemed appropriate by counsel to the Corporation. No Option may be exercised and no shares of Common Stock shall be issued and delivered upon the exercise of the Option unless and until the Corporation and/or the Optionee shall have complied with all applicable federal or state registration, listing and/or qualification requirements and all other requirements of law or of any regulatory agencies having jurisdiction. (d) Stock certificates representing shares of Common Stock acquired upon the exercise of the Option that have not been registered under the Securities Act shall, if required by the Administering Body, bear an appropriate legend which may, at the discretion of the Administering Body, take the following form: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED." (e) The exercise of each Option and the issuance of shares in connection with the exercise of an Option shall, in all cases, be subject to each of the following conditions: (i) compliance with the terms of the Plan and this Agreement, (ii) the satisfaction of withholding tax or other withholding liabilities, (iii) as necessary, the listing, registration or qualification of any to-be-issued shares upon any securities exchange, -3- The Nasdaq Stock Market or other trading or quotation system or under any federal or state law and (iv) the consent or approval of any regulatory body. The Administering Body shall in its sole discretion determine whether one or more of these conditions are necessary or desirable to be satisfied in connection with the exercise of an Option and prior to the delivery or purchase of shares pursuant to the exercise of an Option. The exercise of an Option shall not be effective unless and until such condition(s) shall have been satisfied or the Administering Body shall have waived such conditions, in its sole discretion. 9. RESTRICTION ON TRANSFER. The Option may not be assigned or transferred except by will or by the laws of descent and distribution or pursuant to a qualified domestic relations order as defined in the IRC, and may be exercised during the lifetime of the Optionee only by the Optionee or the Optionee's guardian or legal representative or assignee pursuant to a qualified domestic relations order. If the Optionee dies, the Option shall thereafter be exercisable, during the period specified in Section 4(a)(i), by his executors or administrators or by a person who acquired the right to exercise such Option by bequest or inheritance to the full extent to which the Option was exercisable by the Optionee at the time of his death. If the Optionee becomes inflicted with a Permanent Disability, the Option shall thereafter be exercisable, during the period specified in Section 4(a) (i), by his legal representatives to the full extent to which the Option was exercisable by the Optionee at the time of his Permanent Disability. The Option shall not be subject to execution, attachment or similar process. Any attempted assignment or transfer of the Option contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the Option, shall be null and void and without effect. 10. NOTICES. All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if (i) personally delivered, (ii) sent by nationally- recognized overnight courier or (iii) sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: if to the Optionee, to the address set forth on the signature page hereto; and if to the Corporation, to: Adams Golf, Inc. 300 Delaware Avenue, Suite 572 Wilmington, Delaware 19801 Attention: Secretary with a copy to: Adams Golf, Ltd. c/o Adams Golf GP Corp. 2801 E. Plano Parkway Plano, Texas 75074 Attention: President or to such other address as the party to who notice is to be given may have furnished to each other party in writing in accordance herewith. Any such communication shall be deemed to have been given (i) when delivered, if personally delivered, (ii) on the first Business Day (as hereinafter defined) after dispatch, if sent by nationally-recognized overnight courier and (iii) on the third Business Day following the date on which the piece of mail containing such communication is posted, if sent by mail. As used herein, "Business Day" means a day that is not a Saturday, Sunday or a day on which banking institutions in the city to which the notice or communication is to be sent are not required to be open. 11. NO WAIVER. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition, whether of like or different nature. -4- 12. OPTIONEE UNDERTAKING. The Optionee hereby agrees to take whatever additional actions and execute whatever additional documents the Corporation or its counsel may in their reasonable judgment deem necessary or advisable in order to carry out one or more of the obligations or restrictions imposed on the Optionee pursuant to the express provisions of this Agreement. 13. MODIFICATION OF RIGHTS. The rights of the Optionee are subject to modification and termination in certain events as provided in this Agreement and the Plan. 14. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts made and to be wholly performed therein. 15. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 16. ENTIRE AGREEMENT. This Agreement and the Plan constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all previously written or oral negotiations, commitments, representations and agreements with respect thereto. ADAMS GOLF, INC. By:_______________________________ Name:_____________________________ Title:____________________________ OPTIONEE: __________________________________ NAME Address:___________________________ ___________________________ ___________________________ Annexes - ------- Annex A - Form of Exercise Notice -5- ANNEX A ------- EXERCISE NOTICE Ladies/Gentlemen: I hereby exercise my Stock Option to purchase _______ shares of Common Stock of ADAMS GOLF, INC. at the option price of $______ per share as provided in the Stock Option Agreement dated the _____ day of __________________. I acknowledge that I previously received a copy of the 2002 Equity Incentive Plan of Adams Golf, Inc. and executed a Stock Option Agreement, and I have carefully reviewed both documents. I have considered the tax implications of my option and the exercise thereof. I hereby tender my personal check, bank draft or money order payable to ADAMS GOLF, INC. in the amount of $______ or, I have wire transferred $_______ to ADAMS GOLF, INC., which transfer shall be subject to the confirmation of receipt of funds by the Corporation. [If payment is to be made by wire transfer, the Optionee should contact the Corporation's Chief Financial Officer or Controller in advance to obtain wiring instructions.] ________________________ Optionee ________________________ Date EX-5.1 4 adams-ex51.txt OPINION OF ANDREWS KURTH LLP EXHIBIT 5.1 OPINION OF ANDREWS KURTH LLP ANDREWS KURTH LLP 1717 Main Street, Suite 3700 Dallas, Texas 75201 Tel: 214-659-4400 February 9, 2004 Board of Directors Adams Golf, Inc. c/o Adams Golf, Ltd. 300 Delaware Avenue, Suite 572 Wilmington, Delaware 19801 Re: Adams Golf, Inc. Registration Statement on Form S-8 for the 2002 Equity Incentive Plan Gentlemen: We have acted as counsel to Adams Golf, Inc., a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission on or about February 9, 2004, under the Securities Act of 1933, as amended (the "Securities Act"), relating to 6,653,481 shares of the common stock, par value $0.001 per share (the "Common Stock"), of the Company that will be issued upon the exercise of stock options that have been granted or that may be granted in the future (collectively, the "Options"), or for restricted stock or other stock based awards that may be made in the future (collectively, the "Awards"), under the 2002 Equity Incentive Plan of Adams Golf, Inc. (the "Plan"). You have requested the opinion of this firm with respect to certain legal aspects of the Registration Statement. In connection therewith, we have examined and relied upon the original, or copies, certified or otherwise identified to our satisfaction, of (1) the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company; (2) minutes and records of the corporate proceedings of the Company with respect to the establishment and approval of the Plan, the granting of certain Options under the Plan, the proposed issuance of shares of Common Stock pursuant to the Plan, and related matters; (3) the Registration Statement and exhibits thereto, including the Plan, and the form of stock option agreements used in connection with certain grants under the Plan, (4) the Prospectus used in connection with the offering contemplated by the Registration Statement, and (5) the originals or copies of such other documents, instruments and certificates of public officials, officers of the Company and such other persons as we have deemed necessary for the expression of the opinions herein contained. We have also made such investigation of law as we have deemed appropriate as a basis for the opinions expressed below. In making the foregoing examinations, we have assumed the genuineness of all signatures, the legal capacity of all natural persons and the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. As to various questions of fact material to this opinion, and as to the content and form of the Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws, minutes, records, resolutions and other documents or writings of the Company, we have relied, to the extent we deem reasonably appropriate, upon representations or certificates of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company without independent check or verification of their accuracy. In rendering the opinions expressed below with respect to the Shares, we have assumed that (i) the Amended and Restated Certificate of Incorporation and Amended and Bylaws of the Company will not have been amended in any manner that would affect any legal conclusion set forth herein and (ii) the form and terms of any and all Options and Awards, the issuance thereof by the Company, and the incurrence and performance of the Company's obligations thereunder or in respect thereof in accordance with the terms thereof, will comply with, and will not violate, the Company's Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws, or any applicable law, rule, regulation, order, judgment, decree, award, or agreement binding upon the Company, or to which the issuance, sale and delivery of such Shares, Options or Awards, or the incurrence and performance of such obligations, may be subject, or violate any applicable public policy, or be subject to any defense in law or equity. The opinions expressed below are also subject to possible judicial action giving effect to governmental actions or laws affecting creditors' rights. Based upon our examination, consideration of, and reliance on the documents and other matters described above, and subject to the comments and exceptions noted below, we are of the opinion that, assuming (i) the Options granted and to be granted in the future, and Awards to be granted in the future, have been or will be, as the case may be, duly granted in accordance with the terms of the Plan and the Company has taken all necessary action to authorize and approve the issuance of such Shares pursuant to Options and/or Awards, the terms of the offering thereof and related matters, (ii) the Company maintains an adequate number of authorized but unissued shares and/or treasury shares of Common Stock available for issuance to those persons who exercise Options or who receive Awards granted under the Plan, (iii) the grant and exercise of Options and the grant of Awards is in accordance with the provisions thereof and in accordance with the provisions of the Plan, and (iv) the consideration for the shares of Common Stock issuable upon the exercise of the Options or grant of the Awards is actually received by the Company as provided in Plan, and such consideration exceeds the par value of such shares and will comply with applicable provisions of the Delaware General Corporation Law and the Delaware Constitution regarding the form and amount of consideration for valid issuance of capital stock, then the shares of Common Stock issued pursuant to the exercise of the Options and/or the grant of such Awards will be validly issued, fully paid and nonassessable. -2- This opinion speaks as of its date and we undertake no, and hereby disclaim any, duty to advise as to changes of fact or law coming to our attention after the delivery hereof on such date. For the purposes of the opinions expressed above, we have assumed that, at the time of the issuance and delivery of the Shares, the Company will be validly existing and in good standing under the law of the State of Delaware, it will have full power and authority to execute, deliver and perform its obligations under such Plan, Option, Award and/or board resolution, as the case may be, and there shall have occurred no change in applicable law (statutory or decisional), rule or regulation, or in any other relevant fact or circumstance, that (in any such case) would adversely affect our ability to render at such time an opinion containing the same legal conclusions herein set forth and subject only to such (or fewer) assumptions, limitations and qualifications as are contained herein. We express no opinion other than as to the federal laws of the United States of America, the laws of the State of Texas and the laws of the State of Delaware. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to references to our firm included in or made a part of the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Securities and Exchange Commission thereunder. This opinion may not be relied upon by any person other than the addressee identified above. Respectfully submitted, /s/ ANDREWS KURTH LLP ANDREWS KURTH LLP EX-23.2 5 adams-ex232.txt CONSENT OF KPMG LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Adams Golf, Inc. We consent to the incorporation by reference in this Registration Statement No. 333-____________ on Form S-8 of Adams Golf, Inc. of our report dated February 20, 2003, except as to Notes 11 and 17 which are as of March 28, 2003 relating to the consolidated balance sheets of Adams Golf, Inc. and subsidiaries as of December 31, 2002 and 2001 and the related consolidated statements of operations, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2002, and the related financial statement schedule, which report is included in the December 31, 2002 Annual Report on Form 10-K of Adams Golf, Inc. KPMG LLP Dallas, Texas January 28, 2004 -----END PRIVACY-ENHANCED MESSAGE-----