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Registration No. 33-
As filed with the Securities and Exchange Commission on November 25, 1997
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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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BALLY TOTAL FITNESS HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-3228107
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
8700 WEST BRYN MAWR AVENUE
CHICAGO, ILLINOIS 60631
(773) 380-3000
(Address of principal executive offices including zip code)
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1996 LONG-TERM INCENTIVE PLAN OF
BALLY TOTAL FITNESS HOLDING CORPORATION
(Full title of plan)
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CARY A. GAAN, ESQ. Copy to:
BALLY TOTAL FITNESS HOLDING CORPORATION IRV BERLINER, ESQ.
8700 WEST BRYN MAWR AVENUE BENESCH, FRIEDLANDER,
CHICAGO, ILLINOIS 60631 COPLAN & ARONOFF LLP
(773) 380-3000 2300 BP AMERICA BUILDING
200 PUBLIC SQUARE
CLEVELAND, OHIO 44114-2378
(216) 363-4500
(Name and address including zip code; and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------- ------------------------- ------------------------ -------------------------- -----------------------
Title of securities to be Amount to be registered(1) Proposed maximum Proposed maximum Amount of registration
registered offering price per share aggregate offering price(2) fee
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<S> <C> <C> <C> <C>
Common Stock, par 1,500,000 shares $17.4375 $26,156,250 $7,926.14
value $.01 per share
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</TABLE>
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1. This Registration Statement also includes an indeterminable number of
shares of Common Stock which may be issued under the anti-dilution
provisions of the plan.
2. Estimated in accordance with Rule 457 under the Securities Act of 1933,
solely for the purpose of calculating the registration fee, on the
basis of the average of the high and low prices of the Common Stock on
November 19, 1997 as reported on the NASDAQ (NMS).
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This Registration Statement registers shares of common stock, par value
$.01 per share (the "Common Stock") of Bally Total Fitness Holding Corporation
(the "Company") to be issued under the 1996 Long-Term Incentive Plan of the
Company (the "Incentive Plan"). Securities registered on this Registration
Statement are the same class of securities for which a Registration Statement on
Form S-8 filed January 27, 1997, Registration No. 333-20507 is effective
relating to the Incentive Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed by the Company with the
Securities and Exchange Commission ("Commission") are hereby incorporated or
deemed to be incorporated by reference in this Registration Statement.
(1) The Company's Annual Report on Form 10-K/A for the year ended
December 31, 1996, File No. 0-27478.
(2) The Company's Quarterly Report on Form 10-Q/A for the quarter
ended March 31, 1997, File No. 0-27478.
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997, File No. 0-27478.
(4) The Company's Current Report on Form 8-K filed with the
Commission on August 4, 1997, File No. 0-27478.
(5) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997, File No. 0-27478.
(6) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A/A filed with the
Commission on January 3, 1996, File No. 0-27478.
(7) All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(a) of the
Securities Exchange Act of 1934 (the "Exchange Act"), prior to
the termination of the offering made hereby, shall be deemed
to be incorporated by reference in this Registration Statement
and to be a part hereof from the respective date of filing
each such document.
Any statement contained in a document incorporated by, 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 a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein 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.
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Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") permits
the indemnification of the directors and officers of the Company. The Company's
Amended and Restated By-laws provide that it will indemnify the officers,
directors, employees and agents of the Company to the extent permitted by the
DGCL.
The Company's Restated Certificate of Incorporation provides for the
indemnification of directors and officers of the Company, and persons who serve
or served at the request of the Company as a director, officer, employee or
agent of another corporation, including service with respect to employee benefit
plans, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties in amounts paid or to be paid
in settlement) reasonably incurred with respect to any actions, suit or
proceeding, whether civil, criminal, administrative or investigative, provided,
however, the Company shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the Board of Directors of the Company. In the event a claim
for indemnification by any person has not been paid in full by the Company after
written request has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. The right to indemnification
conferred in the Company's Restated Certificate of Incorporation is a contract
right and shall include the right to be paid by the Company the expenses
incurred in defending any such proceeding in advance of its final disposition.
The Company maintains insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Company against any such expense,
liability or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under state law.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 filed January 3, 1996,
Registration No. 33-99844).
4.2 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1 filed January 3, 1996, Registration No.
33-99844).
4.3 The Company's 1996 Long-Term Incentive Plan (incorporated by
reference to Exhibit 10.21 to the Company's Registration
Statement on Form S-1 filed January 3, 1996, Registration No.
33-99844).
4.4 Amendment No. 1 to the Company's 1996 Long-Term Incentive
Plan.
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff LLP, Counsel
to the Company, regarding legality.
23.1 Consent of Ernst & Young LLP, independent public accountants.
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff LLP
(contained in their opinion filed as Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (included in Part II of this Registration
Statement).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the 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 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 Chicago, State of Illinois, on the 21st day of
November, 1997.
BALLY TOTAL FITNESS
HOLDING CORPORATION
(Registrant)
By:/s/ Lee S. Hillman
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Lee S. Hillman
Chief Executive Officer, President and
Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Lee S. Hillman and John W. Dwyer, or
either of them, his true and lawful attorney-in-fact and agent, 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 to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said 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 and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact, agent,
or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
Company in the capacities and on the dates indicated.
Dated: November 21, 1997 /s/ Arthur M. Goldberg
---------------------------------
Arthur M. Goldberg
Chairman of the Board of Directors
Dated: November 21, 1997 /s/ Lee S. Hillman
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Lee S. Hillman
Chief Executive Officer, President
and Director
Dated: November 21, 1997 /s/ John W. Dwyer
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John W. Dwyer
Executive Vice President, Chief
Financial Officer and Treasurer
Dated: November 21, 1997 /s/ Geoff M. Scheitlin
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Geoff M. Scheitlin
Vice President and Controller
Dated: November 21, 1997 /s/ Aubrey C. Lewis
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Aubrey C. Lewis
Director
Dated: November 21, 1997 /s/ J. Kenneth Looloian
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J. Kenneth Looloian
Director
Dated: November 21, 1997 /s/ James F. Mc Anally, M.D.
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James F. Mc Anally, M.D.
Director
Dated: November 21, 1997 /s/ Liza M. Walsh
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Liza M. Walsh
Director
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT NO. EXHIBIT DESCRIPTION PAGE NO.
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<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Company's Registration Statement
on Form S-1 filed January 3, 1996, Registration No. 33-99844).
4.2 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on
Form S-1 filed January 3, 1996, Registration No. 33-99844).
4.3 The Company's 1996 Long-Term Incentive Plan (incorporated by
reference to Exhibit 10.21 to the Company's Registration Statement
on Form S-1 filed January 3, 1996, Registration No. 33-99844).
4.4 Amendment No. 1 to the Company's 1996 Long-Term Incentive
Plan.
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff LLP, Counsel to
the Company, regarding legality.
23.1 Consent of Ernst & Young LLP, independent public accountants.
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff LLP (contained in
their opinion filed as Exhibit 5.1 to this Registration Statement).
24.1 Power of Attorney (included in Part II of this Registration
Statement).
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Exhibit 4.4
AMENDMENT NO. 1
TO THE 1996 LONG-TERM INCENTIVE PLAN
OF
BALLY TOTAL FITNESS HOLDING CORPORATION
1. Section 3 of the Plan is hereby amended by changing the number of the
aggregate Shares subject to the Plan from two million one hundred thousand
(2,100,000) Shares to three million six hundred thousand (3,600,000) Shares.
2. This First Amendment shall be effective as of November 21, 1997.
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November 24, 1997
EXHIBIT 5.1
Board of Directors
Bally Total Fitness Holding Corporation
8700 West Bryn Mawr Avenue
Chicago, Illinois 60631
Re: Registration Statement on Form S-8
Ladies and Gentleman:
It is our understanding that Bally Total Fitness Holding Corporation, a Delaware
corporation ("Company"), intends to file with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 ("Registration Statement"), which Registration Statement
relates to 1,500,000 shares of common stock, par value $.01 per share, of the
Company ("Common Stock"), to be issued pursuant to the 1996 Long-Term Incentive
Plan of Bally Total Fitness Holding Corporation (the "Plan").
We have examined and relied on originals or copies, certified or otherwise
identified to our satisfaction as being true copies, of all such records of the
Company, all such agreements, certificates of officers of the Company and
others, and such other documents, certificates and corporate or other records as
we have deemed necessary as a basis for the opinion expressed in this letter.
In our examination, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, 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.
We have investigated such questions of law for the purpose of rendering the
opinions in this letter as we have deemed necessary. We express no opinion in
this letter concerning any law other than the Delaware General Corporation Law.
This opinion is being rendered to you as of today. The opinion expressed herein
assumes that there is no change in the facts, circumstances and law in effect on
the date of this opinion, particularly as it relates to corporate authority and
the Company's good standing under Delaware law. We have assumed that the Company
will remain in good standing as a Delaware corporation at all times when shares
of Common Stock are sold pursuant to the Plan.
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Board of Directors
Bally Total Fitness Holding Corporation
Page 2
November 24, 1997
On the basis of the foregoing, we are of the opinion that the Common Stock to be
issued pursuant to the Plan, when and if issued and paid for in accordance with
the terms of the Plan, will be legally issued, fully paid and nonassessable.
The opinion in this letter is rendered only to the Company in connection with
the filing of the Registration Statement. We consent to the filing of this
letter as an exhibit to the Registration Statement. The opinion may not be
relied upon by the Company for any other purpose. This letter may not be
paraphrased, quoted or summarized, nor may it be duplicated or reproduced in
part.
Very truly yours,
BENESCH, FRIEDLANDER,
COPLAN & ARONOFF LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our reports dated
February 25, 1997, except for the "Summary of significant accounting policies -
Restatement, Membership revenue recognition and Impact of recently issued
accounting standards" and "Income Taxes" notes, as to which the date is July 14,
1997, in the Registration Statement (Form S-8) of Bally Total Fitness Holding
Corporation for the registration of 1,500,000 shares of Bally Total Fitness
Holding Corporation common stock to be issued pursuant to the 1996 Long-Term
Incentive Plan of Bally Total Fitness Holding Corporation.
Ernst & Young LLP
Chicago, Illinois
November 21, 1997
