<PAGE> 1
Registration No. 33-
As filed with the Securities and Exchange Commission on January 27, 1997
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
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) 399-1300
(Address of Principal Executive Offices Including Zip Code)
---------------
1996 LONG-TERM INCENTIVE PLAN OF
BALLY TOTAL FITNESS HOLDING CORPORATION AND
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN OF
BALLY TOTAL FITNESS HOLDING CORPORATION
(Full Title of the Plans)
---------------
<TABLE>
<CAPTION>
<S> <C>
COPY TO:
CARY A. GAAN IRV BERLINER
BALLY TOTAL FITNESS HOLDING CORPORATION BENESCH, FRIEDLANDER, COPLAN & ARONOFF P.L.L.
8700 WEST BRYN MAWR AVENUE 2300 BP AMERICA BUILDING
CHICAGO, ILLINOIS 60631 200 PUBLIC SQUARE
(773) 399-1300 CLEVELAND, OHIO 44114-2378
(216) 363-4500
</TABLE>
(Name and Address Including Zip Code; and Telephone Number,
Including Area Code, of Agent for Service)
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price per Share(2) Aggregate Offering Price(2) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,200,000 shares Variable $7,217,871.20 $2,187.23
============================= =================== ========================= ========================= ==================
- -----------------------
<FN>
1This Registration Statement also includes an indeterminable number of shares of
Common Stock which may be issued under the anti-dilution provisions of the
plans.
2Estimated in accordance with Rule 457 under the Securities Act of 1933, solely
for the purpose of calculating the registration fee, on the basis of (a) the
average price at which existing options may be exercised or (b) the average of
the high and low sales prices of the Common Stock on January 23, 1997 as
reported on the NASDAQ National Market System with respect to all other shares
of Common Stock.
</TABLE>
<PAGE> 2
PART I
REOFFER PROSPECTUS
650,000 SHARES
BALLY TOTAL FITNESS HOLDING CORPORATION
COMMON STOCK
The shares of Common Stock, $.01 par value ("Common Stock"), of Bally
Total Fitness Holding Corporation (the "Company"), offered pursuant to this
Prospectus consist of 650,000 shares (the "Shares") which eventually may be
offered for sale by certain holders of Common Stock (the "Selling
Shareholders"). The Company has agreed to pay all of the expenses of this
offering but will not receive any of the proceeds from the sale of the Shares by
the Selling Shareholders. See "Selling Shareholders." All brokerage commissions
and other similar expenses incurred by the Selling Shareholders will be borne by
the Selling Shareholders. The aggregate proceeds to the Selling Shareholders
from the sale of the Shares will be the price of the Shares sold, less the
aggregate agents' commissions and underwriters' discounts, if any, and other
expenses of issuance and distribution not borne by the Company. See "Use of
Proceeds" and "Plan of Distribution."
The Common Stock is listed on the NASDAQ National Market System under
the symbol "BFIT." On January 23, 1997, the reported high and low sales prices
of the Common Stock were $7.50 per share and $7.125 per share, respectively.
The Selling Shareholders directly, through agents designated from time
to time, or through dealers or underwriters also to be designated, may sell the
Shares from time to time on terms to be determined at the time of sale. The
Selling Shareholders may sell the Shares in one or more transactions (which may
involve one or more block transactions) on the NASDAQ National Market System, in
sales occurring in the over-the-counter market, in privately negotiated
transactions, or in a combination of such transactions; each sale may be made
either at market prices prevailing at the time of such sale or at negotiated
prices; some or all of the Shares may be sold through brokers acting on behalf
of the Selling Shareholders or to dealers for resale by such dealers; and in
connection with such sales, such brokers or dealers may receive compensation in
the form of discounts, fees or commissions from the Selling Shareholders and/or
the purchasers of such Shares for whom they may act as broker or agent. To the
extent required, the specific Shares to be sold, the names of the Selling
Shareholders, the purchase price, the public offering price, the names of any
such agents, dealers or underwriters and any applicable commissions or discounts
with respect to a particular offer will be set forth in an accompanying
Prospectus supplement.
The Selling Shareholders and any broker-dealers, agents or underwriters
that participate with the Selling Shareholders in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933, as amended (the "1933 Act"), and any commissions received by them and any
profit on the resale of the Shares purchased by them may be deemed to be
underwriting commissions or discounts under the 1933 Act.
<PAGE> 3
No dealer, salesman or other person is authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus and, if given or made, such
information or representation must not be relied upon as having been authorized
by the Company or the Selling Shareholders, or any underwriter, dealer or agent.
This Prospectus and any supplement thereto shall not constitute an offer to
sell, or the solicitation of an offer to buy, any of the Shares offered hereby
in any jurisdiction where, or to any person to whom, it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that there has
been no change in the affairs of the Company since the date hereof or thereof or
that the information contained herein is correct as of any time subsequent to
the date hereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION")
OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is January 27, 1997.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in accordance
therewith files reports and other information with the Commission. In addition,
the Company has filed with the Commission a Form S-8 registration statement (the
"Registration Statement") with respect to the Shares offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement and the exhibits and schedules relating thereto. For further
information with respect to the Company and the Shares offered hereby, reference
is made to the Registration Statement and the exhibits and schedules thereto and
to the reports and other information filed with the Commission. Statements
contained in this Prospectus as to the contents of any contract or other
document referred to herein are not necessarily complete, and reference is made
to the copy of such contract or other document filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, each such
statement being qualified in all respects by such reference. The Registration
Statement, and the exhibits and schedules thereto, and reports and other
information filed with the Commission may be inspected and copied (at the
prescribed rates) at the public reference facilities maintained by the
Commission located at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, New York 10048 and at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material can be obtained from the Public Reference Branch of the
Commission, 450 Fifth Street, N.W., Washington, D.C., 20549 at prescribed rates.
The Commission maintains a web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The Commission's web site can be accessed at
http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, each as filed by the Company with the
Commission pursuant to the 1934 Act, are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995 (File No. 0-27478);
(b) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1996 (File No. 0-27478);
(c) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996 (File No. 0-27478);
(d) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996 (File No. 0-27478); and
<PAGE> 5
(e) the description of the Company's Common Stock contained in
its Registration Statement on Form 8-A, filed with the Commission on
January 3, 1996 (File No. 0-27478).
All documents concurrently or subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior to the
termination of this offering, shall be deemed incorporated by reference in the
Prospectus and to be a part hereof from the respective date of filing each such
document. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus 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 such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, on the request of such person, a copy of any document
incorporated by reference herein (other than exhibits to such documents, unless
they are specifically incorporated by reference herein). Requests for such
documents should be directed to Bally Total Fitness Holding Corporation, 8700
West Bryn Mawr Avenue, Chicago, Illinois 60631, Attention: Secretary, or made by
telephone at (773) 399-1300.
THE COMPANY
The Company, through its subsidiaries, is the largest (and only
nationwide) commercial operator of fitness centers in the United States in terms
of revenues, number of members and square footage of facilities. The Company
operates approximately 320 fitness centers concentrated in 27 states and Canada
with approximately 4.2 million members.
The Company's principal executive offices are located at 8700 West Bryn
Mawr Avenue, Chicago, Illinois 60631 (telephone: (773) 399-1300).
USE OF PROCEEDS
The Shares being offered are for the account of the Selling
Shareholders. Accordingly, the Company will receive none of the proceeds from
the sale of the Shares.
SELLING SHAREHOLDERS
The following table sets forth, as of December 31, 1996, certain
information with respect to each of the Selling Shareholders, provided by said
Selling Shareholder, including the name and position, if any, of each of the
Selling Shareholders and the number of Shares that may be offered by each. The
number of Shares which actually may be sold by each of the Selling Shareholders
will be determined from time to time by each Selling Shareholder and may depend
upon a number
<PAGE> 6
of factors, including the price of the Common Stock. Because each of the Selling
Shareholders may offer all, some or none of the Shares that each holds, and
because the offering contemplated by this Prospectus is not being underwritten
on a firm commitment basis, no estimate can be given as to the number of Shares
that will be held by each of the Selling Shareholders upon or prior to
termination of this offering. It is anticipated that the Selling Shareholders
may eventually offer all of the Shares for sale. See "Plan of Distribution."
On December 31, 1996, the Company had outstanding 12,495,161 shares of
Common Stock.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Number of Shares of
Common Stock Owned or
Name of Selling Shareholder Deemed to be Owned by Shares of Common Stock
and Position Selling Shareholder Offered Hereby
- ---------------------------------------------------------------------------------------------------------------------
Shares(1) % of Class Shares % of Class
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Arthur M. Goldberg, 2,591,179(2) 17.6% 200,000 1.6%
Chairman of the Board
- ---------------------------------------------------------------------------------------------------------------------
Lee S. Hillman, Chief 895,701(3) 6.8% 150,000 1.2%
Executive Officer, President
and Director
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John W. Dwyer, Senior Vice 72,087(4) * 60,000 *
President, Chief Financial
Officer and Treasurer
- ---------------------------------------------------------------------------------------------------------------------
Cary A. Gaan, Senior Vice 71,667(4) * 60,000 *
President, Secretary and
General Counsel
- ---------------------------------------------------------------------------------------------------------------------
David M. Tolmie, Senior 74,167(4) * 60,000 *
Vice President, New
Business Development
- ---------------------------------------------------------------------------------------------------------------------
Harold Morgan, Senior Vice 72,038(4) * 60,000 *
President, Human Resources
- ---------------------------------------------------------------------------------------------------------------------
John Wildman, Jr., Senior 82,500(5) * 60,000 *
Vice President, Sales and
Marketing
- ---------------------------------------------------------------------------------------------------------------------
- --------------------
<FN>
* Less than one percent (1%).
</TABLE>
<PAGE> 7
(1) Reflects, in each case, the number of shares of Common Stock
beneficially owned as of December 31, 1996 and includes, in certain
instances, shares of Common Stock held in the name of the Selling
Shareholder's spouse, minor children, or relatives sharing his home,
the reporting of which is required by applicable rules of the
Commission, but as to which shares of Common Stock the Selling
Shareholder may have disclaimed beneficial ownership.
(2) Includes (i) 184,075 held by Nugget Partners, L.P., a New Jersey
limited partnership, whose sole general partner is Mr. Goldberg, (ii)
200,000 shares subject to a restricted stock award granted pursuant to
the Company's 1996 Long-Term Incentive Plan (the "Incentive Plan")
and (iii) 2,207,104 shares to be issued upon the exercise of warrants
to purchase Common Stock owned by Mr. Goldberg.
(3) Includes (i) 150,000 shares subject to a restricted stock award granted
pursuant to the Company's Incentive Plan and (ii) 735,701 shares to be
issued upon the exercise of warrants to purchase Common Stock owned by
Mr Hillman.
(4) Includes (i) 11,667 shares subject to options granted under the
Company's Incentive Plan and (ii) 60,000 shares subject to a restricted
stock award granted under the Company's Incentive Plan.
(5) Includes (i) 15,000 shares subject to options granted under the
Company's Incentive Plan and (ii) 60,000 shares subject to a restricted
stock award granted under the Company's Incentive Plan.
<PAGE> 8
PLAN OF DISTRIBUTION
The Shares offered hereby are being sold by the Selling Shareholders,
each acting as principal for his or her own account. The Company will receive no
proceeds from the sale of the Shares in this offering. The Shares may be sold
from time to time to purchasers directly by the Selling Shareholders.
Alternatively, the Selling Shareholders may sell the Shares in one or more
transactions (which may involve one or more block transactions) in the
over-the-counter market, in privately negotiated transactions, in a combination
of such transactions or otherwise; each sale may be made either at market prices
prevailing at the time of such sale or at negotiated prices; some or all of the
Shares may be sold through brokers acting on behalf of the Selling Shareholders
or to dealers for resale by such dealers; and in connection with such sales,
such brokers or dealers may receive compensation in the form of discounts, fees
or commissions from the Selling Shareholder and/or the purchasers of such Shares
for whom they may act as broker or agent (which compensation may be in excess of
customary commissions). It is anticipated that the Selling Shareholders may
eventually offer all of the Shares for sale. All expenses of registration
incurred in connection with this offering are being borne by the Company, but
all brokerage commissions and other similar expenses incurred by the Selling
Shareholders will be borne by the Selling Shareholders.
Each Selling Shareholder and any dealer acting in connection with the
offering of any of the Shares or any broker executing selling orders on behalf
of any of the Selling Shareholders may be deemed to be "underwriters" within the
meaning of the 1933 Act, in which event any profit on the sale of any or all of
the Shares and any discounts or concessions received by any such brokers or
dealers may be deemed to be underwriting discounts and commission under the 1933
Act. Any dealer or broker participating in any distribution of the Shares may be
required to deliver a copy of this Prospectus, including a Prospectus
supplement, to any person who purchases any of the Shares from or through such
broker or dealer.
At the time a particular offer of Shares is made, to the extent
required, a supplement to this Prospectus will be distributed which will
identify and set forth the aggregate amount of Shares being offered and the
terms of the offering, including the name or names of any underwriters, dealers
or agents, the purchase price paid by any underwriter for Shares purchased from
the Selling Shareholders, any discounts, commissions and other items
constituting compensation from the Selling Shareholders and/or the Company and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers, including the proposed selling price to the public.
The Selling Shareholders are not restricted as to the price or prices
at which they may sell their Shares. Sales of Shares at less than market prices
may depress the market price of the Company's Common Stock. Moreover, the
Selling Shareholders are not restricted as to the number of Shares which may be
sold at any one time, and it is possible that a significant number of Shares
could be sold at the same time.
Under applicable rules and regulations under the 1934 Act, any person
engaged in a distribution of the Shares may not simultaneously engage in
market-making activities with respect to the Shares for a period of nine
business days prior to the commencement of such distribution. In addition, and
without limiting the foregoing, the Selling Shareholders will be subject to
applicable provisions of the 1934 Act and the rules and regulations thereunder,
including, without limitation,
<PAGE> 9
Rules 10b-2, 10b-6 and 10b-7, which provisions may limit the timing of purchases
and sales of the Shares by the Selling Shareholders.
In order to comply with certain states' securities laws, if applicable,
the Shares will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the Shares may not be sold unless
the Shares have been registered or qualified for sale in such state, or unless
an exemption from registration or qualification is available and is obtained.
LEGAL MATTERS
The validity of the Shares of Common Stock offered hereby has been
passed upon for the Company by the law firm of Benesch, Friedlander, Coplan &
Aronoff P.L.L., Cleveland, Ohio.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, which
have been incorporated in this Registration Statement and Prospectus by
reference, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
<PAGE> 10
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
Registration Statement, and all documents concurrently and subsequently filed by
Bally Total Fitness Holding Corporation, pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment
which indicates all securities offered have been sold or which de-registers all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such document.
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (File No. 0-27478).
(2) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1996 (File No. 0-27478).
(3) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996 (File No. 0-27478).
(4) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996 (File No. 0-27478).
(5) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Commission
on January 3, 1996 (File No. 0-27478).
For purposes of this Registration Statement, any statement contained in
a document incorporated by or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded 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 modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable
II-1
<PAGE> 11
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock being registered pursuant to this
Registration Statement has been passed upon by Benesch, Friedlander, Coplan &
Aronoff P.L.L., outside legal counsel to the Company.
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
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 action, 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 Company's Board of Directors. 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
contractual 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.
Pursuant to the Incentive Plan, the Company awarded an aggregate of
650,000 shares of restricted Common Stock to certain of its executive officers.
The restricted shares were originally issued pursuant to an exemption from
registration under Section 4(2) of the 1933 Act. At the time of issuance, each
officer represented to the Company that he was acquiring the Common Stock for
his own account for investment purposes and that he had the capacity to evaluate
the merits and risks of the investment and to protect his own interests in
connection with the transaction. The certificates representing the shares of
Common Stock bear a restrictive legend stating that the shares are not
registered under the 1933 Act and may not be transferred absent the Company's
filing a registration statement or acknowledgment that a valid exemption from
registration exists.
II-2
<PAGE> 12
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 3.3 to the Company's Registration
Statement on Form S-1 filed January 3, 1996, Registration No.
33-99844).
4.3 Form of Rights Agreement, dated as of January 5, 1996 between
the Company and LaSalle National Bank (incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-1 filed January 3, 1996, Registration No.
33-99844).
4.4 The Company's 1996 Long-Term Incentive Plan (incorporated
herein by reference to Exhibit 10.21 to the Company's
Registration Statement on Form S-1 filed January 3, 1996,
Registration No. 33-99844).
4.5 The Company's 1996 Non-Employee Directors' Stock Option Plan
(incorporated herein by reference to Exhibit 10.23 to the
Company's Registration Statement on Form S-1 filed January 3,
1996, Registration No. 33-99844).
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff P.L.L.,
outside counsel to the Company, regarding legality.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff P.L.L.
(contained in its opinion filed as Exhibit 5.1 to this
Registration Statement).
24.1 Powers of Attorney (included in Part II of this Registration
Statement).
II-3
<PAGE> 13
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 1933 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; 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 (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, 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 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the 1933 Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the 1934 Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the 1934 Act) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 14
(c) Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the 1933 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 1933 Act and will be
governed by the final adjudication of such issue.
II-5
<PAGE> 15
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 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 this 24th day of
January, 1997.
BALLY TOTAL FITNESS
HOLDING CORPORATION
(Registrant)
By: /s/ John W. Dwyer
---------------------------------------
John W. Dwyer
Senior Vice President, Chief Financial
Officer and Treasurer
<PAGE> 16
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John W. Dwyer and Cary A. Gaan, 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, as amended,
this Registration Statement has been signed by the following persons on behalf
of the Company in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Dated: January 24, 1997 /s/ Arthur M. Goldberg
----------------------
Arthur M. Goldberg
Chairman of the Board of Directors
Dated: January 24, 1997 /s/ Lee S. Hillman
------------------
Lee S. Hillman
Chief Executive Officer, President
and Director
Dated: January 24, 1997 /s/ John W. Dwyer
-----------------
John W. Dwyer
Senior Vice President, Chief
Financial Officer and Treasurer
Dated: January 24, 1997 /s/ Cary A. Gaan
----------------
Cary A. Gaan
Senior Vice President, Secretary and
General Counsel
Dated: January 24, 1997 /s/ Julie A. Adams
------------------
Julie A. Adams
Vice President and Controller
</TABLE>
<PAGE> 17
<TABLE>
<CAPTION>
<S> <C> <C>
Dated: January 24, 1997 /s/ Aubrey C. Lewis
-------------------
Aubrey C. Lewis
Director
Dated: January 24, 1997 /s/ J. Kenneth Looloian
-----------------------
J. Kenneth Looloian
Director
Dated: January 2, 1997 /s/ James F. Mc Anally, M.D.
----------------------------
James F. Mc Anally, M.D.
Director
Dated: January 24, 1997 /s/ Liza M. Walsh
-----------------
Liza M. Walsh
Director
</TABLE>
<PAGE> 18
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT DESCRIPTION PAGE NO.
- ----------- ------------------- --------
<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 3.3 to the
Company's Registration Statement
on Form S-1 filed January 3, 1996,
Registration No. 33-99844). *
4.3 Form of Rights Agreement, dated as
of January 5, 1996 between the
Company and LaSalle National Bank
(incorporated by reference to
Exhibit 4.2 to the Company's
Registration Statement on Form S-1
filed January 3, 1996, Registration
No. 33-99844). *
4.4 The Company's 1996 Long-Term
Incentive Plan (incorporated herein
by reference to Exhibit 10.21 to the
Company's Registration Statement
on Form S-1 filed January 3, 1996,
Registration No. 33-9844). *
4.5 The Company's 1996 Non-Employee
Directors' Stock Option Plan
(incorporated herein by reference to
Exhibit 10.23 to the Company's
Registration Statement on Form S-1
filed January 3, 1996, Registration
No. 33-99844). *
5.1 Opinion of Benesch, Friedlander,
Coplan & Aronoff P.L.L., outside
counsel to the Company, regarding
legality.
23.1 Consent of Ernst & Young LLP,
independent auditors.
23.2 Consent of Benesch, Friedlander,
Coplan & Aronoff P.L.L. (contained
in its opinion filed as Exhibit 5.1
to this Registration Statement). N/A
24.1 Powers of Attorney (included in Part
II of this Registration Statement). N/A
<FN>
* Incorporated herein by reference as indicated.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
-----------
OPINION OF BENESCH, FRIEDLANDER,
COPLAN & ARONOFF P.L.L.
(attached)
<PAGE> 2
EXHIBIT 5.1
-----------
January 27, 1997
Board of Directors
Bally Total Fitness Holding Corporation
8700 West Bryn Mawr Avenue
Chicago, Illinois 60631
Ladies and Gentlemen:
Bally Total Fitness Holding Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, a Registration Statement on Form S-8
(the "Registration Statement") with respect to 2,200,000 shares (the "Shares")
of the Company's common stock, $.01 par value per share (the "Common Stock"), to
be issued from time to time pursuant to the 1996 Long-Term Incentive Plan of
Bally Total Fitness Holding Corporation and the 1996 Non-Employee Directors'
Stock Option Plan of Bally Total Fitness Holding Corporation (collectively, the
"Plans"). Capitalized terms not defined in this letter have the meanings given
to them in the Plans.
You have requested our opinion in connection with the Company's filing
of the Registration Statement. In this connection, we have examined and relied
upon 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 opinions expressed in this letter, including, without limitation,
the Company's Restated Certificate of Incorporation, as amended, and the
Registration Statement.
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 authentic 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 General Corporation Law of the
State of Delaware.
This opinion is being rendered to you as of today. The opinions
expressed herein assume that there is no change in the facts, circumstances and
law in effect on the date of this opinion, particularly, as they relate to
corporate authority and the Company's good standing under Delaware
<PAGE> 3
law. We have assumed the Company will remain in good standing as a Delaware
corporation at all times when shares of Common Stock are sold pursuant to the
Plans.
On the basis of and in reliance on the foregoing, we are of the opinion
that:
(1) The Shares of the Common Stock to be issued pursuant to the
Plans, when and if issued in accordance with the terms of the
Plans, will be legally issued, fully paid and nonassessable.
(2) The Shares of the Common Stock received pursuant to the Plans
have been legally issued and are 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 P.L.L.
<PAGE> 1
EXHIBIT 23.1
------------
CONSENT OF ERNST & YOUNG LLP
(attached)
<PAGE> 2
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-8 pertaining to the 1996 Long-Term
Incentive Plan of Bally Total Fitness Holding Corporation and the 1996
Non-Employee Directors' Stock Option Plan of Bally Total Fitness Holding
Corporation and to the incorporation by reference therein of our report dated
February 29, 1996, with respect to the consolidated financial statements and
schedule of Bally Total Fitness Holding Corporation included in its Annual
Report on Form 10-K for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
-------------------------------
ERNST & YOUNG LLP
Chicago, Illinois
January 23, 1997
