12
As filed with the Securities and Exchange Commission on August 28, 2002
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
The Sports Club Company, Inc.
(Exact name of registrant as specified in its charter)
Delaware 95-4479735
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
The Sports Club Company, Inc. 2001 Incentive Stock Plan
(Full title of Plan)
Rex A. Licklider, Co-Chief Executive Officer
11100 Santa Monica Blvd., Suite 300
Los Angeles, California 90025
(310) 479-5200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share Price Registration Fee
Common Stock,
$0.01 par value 2,500,000 (1) $2.00 (2) $5,000,000 (2) $460.00
(1) Plus an indeterminate number of shares which may be required to be issued or
may be issued pursuant to the antidilution provisions of the plan in the event
of merger, consolidation, recapitalization or similar event.
(2) Estimated solely for purposes of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 as amended (the
"Securities Act"). The above calculation is based on the average of the high and
low sale price of the common stock, $0.01 par value (the "Common Stock") of the
Registrant as reported on the American Stock Exchange on August 26, 2002.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This registration statement on Form S-8 (the "Registration Statement")
is being filed to register 2,500,000 shares of Common Stock of The Sports Club
Company, Inc., a Delaware corporation (the "Registrant") issuable under The
Sports Club Company, Inc. 2001 Incentive Stock Plan. The documents containing
the information specified in Part I of the Form S-8 will be or have been sent or
given to participants in the plan, as specified by Rule 428 (b) (1) under the
Securities Act. These documents are not submitted to the Securities and Exchange
Commission (the "Commission") with this Registration Statement, in accordance
with the Note to Part I of Form S-8. These documents, together with the
documents incorporated by reference into this Registration Statement in Item 3
of Part II, shall constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
Item 1. Plan Information.
See above.
Item 2. Registrant Information and Employee Plan Annual Information.
See above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting
requirements of the Securities Exchange Act of 1934 (the "1934 Act") and,
accordingly, files periodic reports, proxy statements and other information with
the Commission. The documents listed below, which Registrant has filed with the
Commission, are specifically incorporated by reference into this Registration
Statement and form an integral part of this Registration Statement. All other
documents subsequently filed with the Commission pursuant to the 1934 Act prior
to the filing of a post-effective amendment to this Registration Statement
indicating that all shares of Common Stock offered hereby have been sold or
which deregisters all the shares of Common Stock then remaining unsold will
automatically update and supersede the information contained in the listed
documents, and shall be deemed incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein which is deemed modified or superseded, shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
(a) Annual Report on Form 10-K for the year ended December 31, 2001, filed
March 29, 2002 (File No. 1-13290). (b) Form 10-Q for the quarter ended March 31,
2002, filed May 10, 2002 (File No. 1-13290).
(c) Definitive Proxy Statement filed with the Commission on July 17, 2002,
pursuant to Section 14(a) of the 1934 Act.
(d) Form 10-Q for the quarter ended June 30, 2002, filed August 14, 2002
(File No. 1-13290).
(e) The description of Registrant's securities contained in Registrant's
(i) Registration Statement on Form S-1 as filed with the Commission on June 14,
1994, as amended by Pre-Effective Amendment No. 1, filed August 15, 1994,
Pre-Effective Amendment No. 2, filed August 8, 1994, Pre-Effective Amendment No.
3, filed September 14, 1994, Pre-Effective Amendment No. 4, filed October 3,
1994, Pre-Effective Amendment No. 5, filed October 12, 1994 and Post-Effective
Amendment No. 1, filed October 18, 1994 (collectively, the "S-1 Registration
Statement"); such S-1 Registration Statement being declared effective by the
Commission on October 13, 1994 (File No. 33-79552) and (ii) Registration
Statement on Form S-2 as filed with the Commission on February 27, 1998, as
amended by Pre-Effective Amendment No. 1, filed March 5, 1998, Pre-Effective
Amendment No. 2, filed March 30, 1998, Pre-Effective Amendment No. 3, filed
April 1, 1998 and Post-Effective Amendment No. 1, filed June 12, 1998
(collectively, the "S-2 Registration Statement"), such S-2 Registration
Statement being declared effective by the Commission on April 1, 1998 (File No.
333-46973).
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Registrant's Restated Certificate of Incorporation (the
"Certificate") includes provisions that limit the liability of its directors. As
permitted by applicable provisions of the Delaware General Corporation Law (the
"Delaware Law"), directors will not be personally liable to the Registrant or
its stockholders for monetary damages arising from a breach of their fiduciary
duty as directors in certain circumstances. This limitation does not affect
liability (i) for any breach of a director's duty of loyalty to the Registrant
or its stockholders (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware Law, or (iv) for any transaction from which a
director derives an improper personal benefit.
Should Delaware Law be amended to authorize further reductions
in liability, then with the approval of Registrant's stockholders, directors
shall not be liable for any such breach to the fullest extent permitted by
Delaware Law. The Certificate does not permit any repeal or modification that
would adversely affect any right or protection of a director existing at the
time of such repeal or modification. This limitation of directors' liability
also does not affect the availability of equitable remedies, such as injunctive
relief or rescission. The provisions of the Certificate described above apply to
officers of the Registrant only if they are directors of the Registrant and are
acting in their capacity as directors and does not apply to officers of the
Registrant who are not directors.
The Registrant's Bylaws, as amended, authorize the Registrant
to indemnify its directors and officers to the full extent permitted by Delaware
Law, including circumstances in which indemnification is otherwise discretionary
under Delaware Law, and the Registrant has entered into indemnification
agreements (the "Indemnification Agreements") with each of its directors and
officers. These Indemnification Agreements constitute binding agreements between
the Registrant and each of the other parties thereto, and thus will prevent the
Registrant from modifying its indemnification policy in a way that is adverse to
any person who is a party to an Indemnification Agreement.
The Registrant maintains a policy of directors' and officers'
liability insurance coverage at limits of $10,000,000 for each policy year.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
3.1 (1) Restated Certificate of Incorporation of the Registrant.
3.2 (1) Bylaws of the Registrant.
3.3 (2) Amendment to Bylaws dated February 1, 1995.
5.1 Opinion of Greenberg Glusker Fields Claman Machtinger &
Kinsella LLP, counsel to Registrant.
23.1 Consent of Greenberg Glusker Fields Claman Machtinger &
Kinsella LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
(1) Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-1, declared effective on October 13, 1994 (SEC
File No. 33-79552).
(2) Previously filed with the Commission as an Exhibit to Registrants' Annual
Report on Form 10-K/A, filed on October 14, 1997 (SEC File No.1-13290).
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) 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;
(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 this Registration Statement.
Provided, however, that paragraphs (a) (i) and (a) (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 12 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for
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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act;
and, where interim financial information required to be presented by Article 3
of Regulation S-X are not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
4. Insofar as indemnification for liabilities arising under
the Securities 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 Securities 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 that
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 Securities Act and will be governed by
the final adjudication of such issue.
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 Los Angeles, State of California, on the 28th day of
August, 2002.
THE SPORTS CLUB COMPANY, INC.
By: /s/ Rex A. Licklider
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Rex A. Licklider
Vice Chairman of the Board and
Co-Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below hereby appoints D. Michael
Talla and Rex A. Licklider, and each of them severally, acting alone and without
the other, his/her true and lawful attorney-in-fact with authority to execute in
the name of each such person, and to file with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith,
any and all amendments (including without limitation post-effective amendments)
to this Registration Statement necessary or advisable to enable the Registrant
to comply with the Securities Act of 1933 and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, which
amendments may make such changes in this Registration Statement as the aforesaid
attorney-in-fact deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
Signatures Title Date
/s/ D. Michael Talla Chairman of the Board and August 28, 2002
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D. Michael Talla Co-Chief Executive Officer
/s/ Rex A. Licklider Vice Chairman of the Board August 28, 2002
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Rex A. Licklider And Co-Chief Executive
Officer
/s/ Nanette Pattee Francini Director and Executive August 28, 2002
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Nanette Pattee Francini Vice President
/s/ Timothy M. O'Brien Principal Financial and August 28, 2002
- ----------------------------
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Timothy M. O'Brien Accounting Officer
/s/ Andrew L. Turner Director August 28, 2002
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- ----------------------------
Andrew L. Turner
/s/ Brian J. Collins Director August 28, 2002
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- ----------------------------
Brian J. Collins
/s/ George J. Vasilakos Director August 28, 2002
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George J. Vasilakos
/s/ Charles A. Norris Director August 28, 2002
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- ----------------------------
Charles A. Norris
INDEX TO EXHIBITS
Exhibit
Number Description
5.1 Opinion of Greenberg Glusker Fields Claman Machtinger &
Kinsella LLP, counsel to Registrant.
23.1 Consent of Greenberg Glusker Fields Claman Machtinger &
Kinsella LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
Exhibit 5.1
[Letterhead of Greenberg Glusker Fields Claman Machtinger & Kinsella LLP]
August 23, 2002
The Sports Club Company, Inc.
11100 Santa Monica Boulevard, Suite 300
Los Angeles, CA 90025
Ladies and Gentlemen:
We have acted as counsel to The Sports Club Company, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a Registration Statement on Form S-8
(the "Registration Statement"), pursuant to which the Company is registering
under the Securities Act of 1933, as amended, 2,500,000 shares (the "Shares") of
its common stock, $.01 par value per share (the "Common Stock") issuable
pursuant to the Company's 2001 Incentive Stock Plan (the "Plan"). This opinion
is being rendered in connection with the filing of the Registration Statement.
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and By-Laws, both as currently in effect; such
other records of the corporate proceedings of the Company as we have deemed
relevant; and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, photostatic, facsimile or electronic
copies and the authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that the Shares have
been duly and validly authorized and, when issued in accordance with the Plan,
will be duly and validly issued, fully paid and non-assessable shares of the
Company's Common Stock.
Our opinion is limited to the laws of the State of California, the
corporate laws of the State of Delaware and the federal laws of the United
States of America, and we express no opinion with respect to the laws of any
other jurisdiction. No opinion is expressed herein with respect to the
qualification of the Shares under the securities or blue sky laws of any state
or any foreign jurisdiction.
The foregoing opinion is rendered as of the date hereof. We assume no
obligation to update such opinion to reflect any facts or circumstances which
may hereafter come to our attention or changes in the law which may hereafter
occur. We understand that you wish to
file this opinion as an exhibit to the Registration Statement, and we hereby
consent thereto. In giving this consent, we do not thereby admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
GREENBERG GLUSKER FIELDS CLAMAN
MACHTINGER & KINSELLA LLP
Exhibit 23.2
[Letterhead of KPMG]
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
The Sports Club Company, Inc.
We consent to the use of our report dated February 23, 2002, except for Note 15
which is as of March 18, 2002, with respect to the consolidated balance sheets
of The Sports Club Company, Inc. and subsidiaries as of December 31, 2001 and
2000, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 2001 and related schedule, incorporated herein by reference.
KPMG LLP
Los Angeles, California
August 26, 2002