As filed with the Securities and Exchange Commission on January 3, 2001
Registration No. 333-
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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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THE PLASTIC SURGERY COMPANY
(Exact name of registrant as specified in its charter)
Georgia 58-2317410
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
509 E. Montecito Street, 2nd Floor
Santa Barbara, California 93103
(805) 963-0400
(Address of principal executive offices)
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1998 Employee Stock Option Plan
1999 Non-Employee Director Stock Plan
The Plastic Surgery Company 2000 Stock Compensation Plan
(Full title of the plans)
Dennis E. Condon
Chief Executive Officer
509 E. Montecito Street, 2nd Floor
Santa Barbara, California 93103
(805) 963-0400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Joseph E. Nida, Esq.
Vanita J. Tyler, Esq.
Nida & Maloney, LLP
800 Anacapa Street
Santa Barbara, California 93101
(805) 568-1151
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Maximum
Title of Each Class of Aggregate Proposed Maximum Amount
Securities to be Amount to be Offering Price Aggregate Of
Registered Registered (1) per share (2) Offering Price Registration Fee
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Common Stock, no par value 2,120,000 $1.81 $3,837,200 $960
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(1) Estimated pursuant to Rule 457(c), based on the average of the high and low
sale prices of the common stock on January 14, 2000, as reported on the
American Stock Exchange solely for the purpose of calculating the
registration fee.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act, based on the average of the
high and low sales prices of the common stock as reported on the American
Stock Exchange on December 29, 2000.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information of Documents by Reference.
The following documents that have been filed by The Plastic Surgery Company
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference into this Registration Statement:
(1) The Annual Report on Form 10-K (File No. 001-15431) for the fiscal
year ended December 31, 1999 filed with the Commission on March 30,
2000;
(2) The Quarterly Report on Form 10-Q for the period ended March 31, 2000
filed with the Commission on May 11, 2000;
(3) The Quarterly Report on Form 10-Q for the period ended June 30, 2000
filed with the Commission on August 14, 2000;
(4) The Quarterly Report on Form 10-Q for the period ended September 30,
2000 filed with the Commission on November 13, 2000; and
(5) The Current Report on Form 8-K dated November 18, 2000 filed with the
Commission on January 2, 2000.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Georgia Business Corporation Code permits a corporation to
eliminate or limit the personal liability of a director to the corporation or
its shareholders for monetary damages for breach of duty of care or other duty
as a director, provided that no provisions shall eliminate or limit the
liability of a director: (A) for any appropriation, in violation of his duties,
of any business opportunity of the corporation; (B) for acts or omissions which
involve intentional misconduct or a knowing violation of law; (C) for unlawful
corporate distributions; or (D) for any transaction from which the director
received an improper personal benefit. This provision pertains only to breaches
of duty by directors in their capacity as directors (and not in any other
corporate capacity, such as officers) and limits liability only for breaches of
fiduciary duties under Georgia corporate law (and not for violation of other
laws, such as the Federal securities laws).
Pursuant to The Plastic Surgery Company's Amended and Restated Articles
of Incorporation and Bylaws, officers and directors shall be indemnified by The
Plastic Surgery Company to the fullest extent allowed under Georgia law for
claims brought against them in their capacities as officers and directors.
Indemnification is not allowed if the officer or director does not act in good
faith and in a manner reasonably believed to be in the best interests of the
company, or if the officer or director had no reasonable cause to believe his
conduct was lawful. Accordingly, indemnification may occur for liabilities
arising under the Securities Act.
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted for directors, officers and controlling persons of The
Plastic Surgery Company pursuant to the foregoing provisions or otherwise, we
have 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.
We have purchased insurance on behalf of our directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors and officers of the registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under federal and state securities laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index on page 6.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Act");
(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. 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 form 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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 paragraphs (1)(i) and 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.
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(4) That for the 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 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
of that time shall be deemed to be the initial bona fide offering thereof.
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.
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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 Santa Barbara, State of California on January 3, 2001.
THE PLASTIC SURGERY COMPANY
By: /s/ Dennis E. Condon
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President, Chief Executive Officer
and Director
Dated: January 3, 2001
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dennis E. Condon, President, Chief
Executive Officer and Director, his or her true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities (unless revoked in
writing), to sign any and all amendments to this Registration Statement,
including any post-effective amendments as well as any related registration
statement (or amendment thereto) filed in reliance upon Rule 462(b) under the
Securities Act of 1933, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his substitute 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.
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Signature Title Date
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<S> <C> <C>
President, Chief Executive Officer and January 3, 2001
/s/ Dennis E. Condon Director (Principal Executive Officer)
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Dennis E. Condon
Chief Financial Officer (Principal January 3, 2001
/s/ Gunnar Sundstorm Accounting Officer)
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Gunnar Sundstrom
/s/ Jonathan E. Wilfong Chairman of the Board January 3, 2001
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Jonathan E. Wilfong
/s/ Robert Ersek, M.D. Director December 21, 2000
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Robert Ersek, M.D.
/s/ John Schantz, M.D. Director January 3, 2001
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John Schantz, M.D.
Director January___, 2001
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W. Grant Stevens, M.D.
/s/ William Armiger, M.D. Director December 21, 2000
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William Armiger, M.D.
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Exhibit Index
Exhibit
Number Description
5.1 Opinion of Nida & Maloney, LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Nida & Maloney, LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page)
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