As Filed with the Securities and Exchange Commission on August 14, 2000
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CALLAWAY GOLF COMPANY
(Exact name of Registrant as specified in its charter)
2285 RUTHERFORD ROAD
CARLSBAD, CALIFORNIA 92008-8815
(Address of principal executive offices)
DELAWARE 95-3797580
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
2001 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1996 STOCK OPTION PLAN
(Full title of the plans)
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ELY CALLAWAY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
2285 RUTHERFORD ROAD
CARLSBAD, CALIFORNIA 92008-8815
(760) 931-1771
(Name, address, and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
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Common Stock,
$.01 par value
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2001 Non-Employee 500,000
Directors Stock Option Shares $12.91 $6,455,000 $1,704.12
Plan
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Newly reserved under 3,000,000
1996 Stock Option Plan Shares $12.91 $38,730,000 $10,224.72
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TOTAL: 3,500,000
Shares $11,928.84
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(1) Pursuant to Rule 416, this Registration Statement shall cover, in addition
to the number of shares of Common Stock stated above, such indeterminate
number of additional shares of Common Stock as may be issued under such
plan as a result of adjustment provisions thereunder.
(2) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(h), based on the average of the high and low prices of Callaway
Golf Company Common Stock as reported on August 7, 2000 on the New York
Stock Exchange.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Callaway Golf Company
(the "Company" or "registrant"). This Registration Statement relates to 500,000
shares of the Company's common stock, par value $.01 per share (the "Common
Stock"), issuable to non-employee directors of the Company under the Company's
2001 Non-Employee Directors Stock Option Plan.
This Registration Statement also relates to an additional 3,000,000 shares
of the Company's Common Stock, issuable to employees of the Company under the
Company's 1996 Stock Option Plan (the "1996 Plan").
The Company previously registered an aggregate of 6,000,000 shares of
Common Stock for issuance under the 1996 Plan under (i) Registration Statement
No. 333-5719 (2,000,000 shares), (ii) Registration Statement No. 333-27089
(1,000,000 shares), and (iii) Registration Statement No. 333-61889 (3,000,000
shares).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have previously been filed by the Company
with the Commission, are hereby incorporated into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 2000;
(d) The Company's Current Report on Form 8-K dated May 3, 2000;
(e) The Company's Definitive Proxy Statement on Schedule 14A filed March
29, 2000.
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (Registration No.
33-53732), including any amendment or report filed for the purpose of
updating such description; and
(g) The description of the Company's Rights contained in the Company's
Registration Statement on Form 8-A filed on June 27, 1995, including
any amendment or report filed for the purpose of updating such
description.
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All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Registration Statement
and prior to the filing of a post-effective amendment that indicates that all
securities offered thereunder have been sold or that deregisters all securities
then remaining unsold will be deemed to be incorporated by reference into this
Registration Statement and to be a part of this Registration Statement from the
date of filing of such documents.
For purposes of this Registration Statement, 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 statement contained
herein or in any other subsequently filed document that also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. 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.
Brian P. Lynch, who has rendered an opinion as to the validity of the
Common Stock being registered by this Registration Statement, is an employee of
the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law of the State of
Delaware empowers a Delaware corporation to indemnify present and former
directors, officers, employees and agents of the Company.
The Company's Certificate of Incorporation provides that, to the fullest
extent permitted by the Delaware General Corporation Law, a director of the
Company shall not be liable to the Company or its shareholders for monetary
damages for breach of the director's fiduciary duty as a director. Delaware law
provides that this provision in the Company's Certificate of Incorporation shall
not limit the liability of a director (i) for any breach of the director's duty
of loyalty to the Company or its shareholders, (ii) for acts or omissions not in
good faith or that involve intentional misconduct or knowing violation of law,
(iii) for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General Corporation Law,
or (iv) for any transaction from which the director derived an improper personal
benefit.
The Company's Bylaws provide that the Company, to the maximum extent
permitted by the Delaware General Corporation Law, shall indemnify any person
against expenses (including attorneys' fees), judgments, fines, and amounts paid
in settlements actually and reasonably incurred in connection with any
threatened, pending or completed action, suit or proceeding in which such person
is or was a party or is threatened to be made a party by reason of the fact that
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such person is or was a director or officer of the Company, or is or was serving
at the request of the Board of Directors of the Company as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
or was a director or officer of a corporation which was a predecessor
corporation of the Company or of another enterprise at the request of such
predecessor corporation. The Company is required to indemnify a director or
officer in connection with an action, suit or proceeding (or part thereof)
initiated by such director or officer only if the initiation of such action,
suit or proceeding (or part thereof) by the director or officer was authorized
by the Board of Directors of the Company.
The Company's Bylaws further provide that the Company shall pay the
expenses (including attorney's fees) incurred by a director or officer of the
Company entitled to indemnification in defending any such action, suit or
proceeding in advance of its final disposition provided such director or officer
undertakes to repay all amounts advanced if it should ultimately be determined
that the director or officer is not entitled to such indemnification.
The Company's Bylaws provide that the foregoing indemnification rights
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled.
The Company has entered into Indemnification Agreements with its outside
directors. These Indemnification Agreements require the Company to indemnify
each outside director if he or she is or was a party or other participant in any
suit or proceeding individually or in the right of the Company or any subsidiary
of the Company, by reason of (a) the fact that such outside director is or was a
director of the Company or any subsidiary, (b) any action or inaction on the
part of such outside director while a director of the Company or any subsidiary,
and/or (c) the fact that such outside director is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation
or other enterprise. The indemnification extends to all expenses, liabilities,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the outside director in connection with such action, suit or proceeding if
the outside director acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
that his or her conduct was unlawful. The Indemnification Agreements require
that, to the extent that the outside director has been successful on the merits
or otherwise in defense of any such action, suit or proceeding, the Company
indemnify such outside director against expenses actually and reasonably
incurred by him or her in connection therewith. The Company must further
advance, within 30 days of a written request, all expenses incurred by the
outside director in connection with the investigation, defense, settlement or
appeal of any such action or proceeding; provided, however, that the outside
director must repay such amounts advanced if it is ultimately determined that he
or she is not entitled to be indemnified by the Company. Under the
Indemnification Agreements, the outside directors are permitted to petition the
court to seek recovery of amounts due under the Indemnification Agreements and
to recover the expenses of seeking such recovery if he or she is successful.
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The Indemnification Agreements also provide that the Company will indemnify
the outside directors to the fullest extent permitted by law. Absent the
Indemnification Agreements, indemnification that might be made available to
outside directors could be changed by amendments to the Company's Certificate of
Incorporation or Bylaws. Benefits under the Indemnification Agreements are not
available, however, to indemnify an outside director (a) with respect to
proceedings or claims initiated by the outside director that are not by way of
defense (unless authorized by the Board of Directors); (b) with respect to
liability for transactions from which the outside director derived an improper
personal benefit; (c) if the outside director is determined to have committed
acts of active and deliberate dishonesty; (d) for expenses or liabilities that
have been paid to the outside director under an insurance policy maintained by
the Company or otherwise by any other means; or (e) for an accounting of profits
realized from the purchase and sale of securities within the meaning of Section
16(b) of the Securities Exchange Act of 1934.
In addition to the foregoing, the Company's Bylaws provide that the Company
shall have the power, to the maximum extent permitted by the Delaware General
Corporation Law, to indemnify any person (other than directors and officers) who
is or was an employee or agent of the Company, who is or was serving at the
request of the Company as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or who was an employee or
agent of a corporation which was a predecessor corporation of the Company or of
another enterprise at the request of such predecessor corporation, against
expenses (including attorneys' fees), judgments, fines, amounts paid in
settlement actually and reasonably incurred in connection with any threatened,
pending or completed action, suit, or proceeding, in which such person was or is
a party or is threatened to be made a party by reason of the fact that such
person is or was an employee or agent of the Company.
The Company maintains directors and officers liability insurance covering
the directors and officers of the Company against claims arising out of the
performance of their duties as such.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits immediately following the signature page(s).
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:
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(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 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 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 of
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whether such indemnification by it is against public policy as expressed in the
Act and will be governed by a final adjudication of such issue.
[THE REMAINDER OF THIS PAGE IS BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Carlsbad, State of California, as of August 11, 2000.
CALLAWAY GOLF COMPANY
By: /s/ ELY CALLAWAY
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Ely Callaway
Founder, Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the date indicated.
Signature Title Dated as of
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Founder, Chairman and
Chief Executive Officer
/s/ ELY CALLAWAY (Principal Executive Officer) August 11, 2000
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Ely Callaway
Director, President and Acting
/s/ CHARLES J. YASH Principal Financial Officer August 11, 2000
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Charles J. Yash
Controller and Acting Principal
/s/ KENNETH E. WOLF Accounting Officer August 11, 2000
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Kenneth E. Wolf
* Director August 11, 2000
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William C. Baker
* Director August 11, 2000
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Vernon E. Jordan, Jr.
* Director August 11, 2000
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Yotaro Kobayashi
* Director August 11, 2000
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Aulana L. Peters
* Director August 11, 2000
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Richard L. Rosenfield
* By: /s/ CHARLES J. YASH
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Charles J. Yash,
Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
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4.1 Certificate of Incorporation, incorporated herein by this reference to
Exhibit 3.1 to the Company's Current Report on Form 8-K, as filed with
the Securities and Exchange Commission ("Commission") on July 1, 1999
(file no. 1-10962).
4.2 Bylaws, incorporated herein by this reference to Exhibit 3.2 to the
Company's Current Report on Form 8-K, as filed with the Commission on
July 1, 1999 (file no. 1-10962).
4.3 Dividend Reinvestment and Stock Purchase Plan, incorporated herein by
this reference to the Prospectus in the Company's Registration
Statement on Form S-3, as filed with the Commission on March 29, 1994
(file no. 33-77024).
4.4 Rights Agreement by and between the Company and Chemical Mellon
Shareholder Services as Rights Agent dated as of June 21, 1995,
incorporated herein by this reference to the corresponding exhibit to
the Company's Quarterly Report on Form 10-Q for the period ended June
30, 1995, as filed with the Commission on August 12, 1995 (file no.
1-10962).
4.5 Certificate of Determination of Rights, Preferences, Privileges and
Restrictions of Series A Junior Participating Preferred Stock,
incorporated herein by this reference to the corresponding exhibit to
the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1995, as filed with the Commission on August 12, 1995 (file no.
1-10962).
5.1 Opinion of Brian P. Lynch, Senior Corporate Counsel of Callaway Golf
Company, as to the legality of the securities being registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Brian P. Lynch, Esq. (included in Exhibit 5.1).
24.1 Form of Power of Attorney.
99.1 2001 Non-Employee Directors Plan, incorporated herein by this
reference to Appendix A to the Company's Definitive Proxy Statement on
Schedule 14A filed with the Commission on March 29, 2000 (file no.
1-10962).
99.2 Amended and Restated 1996 Stock Option Plan (as amended and restated
May 3, 2000), incorporated herein by this reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000, as
filed with the Commission on August 14, 2000 (file no. 1-10962).
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EXHIBIT 5.1
August 11, 2000
Callaway Golf Company
2285 Rutherford Road
Carlsbad, California 92008-8815
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I have prepared the Registration Statement on Form S-8 ("Registration
Statement") to be filed by Callaway Golf Company, a Delaware corporation ("the
Company"), with the Securities and Exchange Commission on or about the date
hereof in connection with the registration of (i) 500,000 shares of the
Company's Common Stock, par value $.01 per share, which may be issued to
non-employee directors under the Non-Employee Directors Stock Option Plan and
(ii) an additional 3,000,000 shares of the Company's Common Stock, par value
$.01 per share, which may be issued to eligible employees under the Company's
Amended and Restated 1996 Stock Option Plan. In connection with said
registration, I have reviewed the proceedings of the Board of Directors of the
Company relating to the registration and proposed issuance of the Common Stock,
the Certificate of Incorporation of the Company and the Bylaws of the Company.
In my examination, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as copies.
I am opining herein as to the effect on the subject transaction only of the
General Corporation Law of the State of Delaware, and I express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any
other jurisdiction or any other laws, or as to any matters of municipal law or
the laws of any other local agencies within the state.
Subject to the foregoing, upon completion of the proceedings being taken or
contemplated by the Company to be taken prior to the issuance and sale of the
aforesaid shares pursuant to the aforesaid plans, and upon completion of the
proceedings being taken in order to permit such transactions to be carried out
in accordance with the applicable securities laws, the aforesaid shares, when
issued and sold in the manner referred to in the aforesaid plans and the
Registration Statement, will be legally and validly issued, fully-paid and
non-assessable.
I hereby consent to filing this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ BRIAN P. LYNCH
Brian P. Lynch
Senior Corporate Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 26, 2000 relating to the
financial statements, which appears in the 1999 Annual Report to Shareholders of
Callaway Golf Company, which is incorporated by reference in Callaway Golf
Company's Annual Report on Form 10-K for the year ended December 31, 1999. We
also consent to the incorporation by reference of our report dated January 26,
2000 relating to the financial statement schedule, which appears in such Annual
Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Diego, California
August 10, 2000
EXHIBIT 24.1
FORM OF POWER OF ATTORNEY
Each of William C. Baker, Vernon E. Jordan, Jr., Yotaro Kobayashi, Aulana L.
Peters and Richard L. Rosenfield executed each of the following powers of
attorney, except that his or her name was inserted where "[Name of Director]"
appears.
LIMITED POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that I, [NAME OF DIRECTOR], a member of
the Board of Directors of Callaway Golf Company, a Delaware corporation (the
"Company"), with its principal executive offices in Carlsbad, California, do
hereby constitute, designate and appoint each of Charles J. Yash and Steven C.
McCracken, each of whom are executive officers of the Company, as my true and
lawful attorneys-in-fact, each with power of substitution, with full power to
act without the other and on behalf of and as attorney for me, for the purpose
of executing and filing with the Securities and Exchange Commission a
registration statement on Form S-8, and any and all amendments thereto, in
connection with the registration of 500,000 shares of the Company's Common Stock
for the funding of the Company's 2001 Non-Employee Directors Stock Option Plan,
and to do all such other acts and execute all such other instruments which said
attorney may deem necessary or desirable in connection therewith.
I have executed this Limited Power of Attorney as of May 2, 2000.
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[NAME OF DIRECTOR]
LIMITED POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that I, [NAME OF DIRECTOR], a
member of the Board of Directors of Callaway Golf Company, a Delaware
corporation (the "Company"), with its principal executive offices in Carlsbad,
California, do hereby constitute, designate and appoint each of Charles J. Yash
and Steven C. McCracken, each of whom are executive officers of the Company, as
my true and lawful attorneys-in-fact, each with power of substitution, with full
power to act without the other and on behalf of and as attorney for me, for the
purpose of executing and filing with the Securities and Exchange Commission a
registration statement on Form S-8, and any and all amendments thereto, in
connection with the registration of an additional 3,000,000 shares of the
Company's Common Stock for the supplemental funding of the Company's 1996 Stock
Option Plan, and to do all such other acts and execute all such other
instruments which said attorney may deem necessary or desirable in connection
therewith.
I have executed this Limited Power of Attorney as of May 2, 2000.
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[NAME OF DIRECTOR]
