Filed by OrthAlliance, Inc.
Pursuant to Rule 425 under the Securities Act of 1933
and deemed filed pursuant to Rule 14a-12 under the
Securities Exchange Act of 1934
Subject Company: OrthAlliance, Inc.
Commission Number: 000-22975
In connection with the proposed merger, OCA and OrthAlliance will file a proxy statement/prospectus with the Securities and Exchange Commission (“SEC”). Investors are urged to read the proxy statement/prospectus, because it will contain important information about the merger, OCA and OrthAlliance. After the proxy statement/prospectus is filed with the SEC, the proxy statement/prospectus will be available free of charge, both on the SEC’s web site (www.sec.gov) and from OCA and OrthAlliance by directing a request to Orthodontic Centers of America, Inc., 5000 Sawgrass Village Circle, Suite 30, Ponte Vedra Beach, FL 32082, Attention: Investor Relations, or to OrthAlliance, Inc., 21535 Hawthorne Boulevard, Suite 200, Torrance, CA 90503, Attention: Investor Relations. OrthAlliance and its directors and officers may be deemed to be participants in the solicitation of proxies with respect to a shareholder meeting to be held in connection with the merger. Information about the participants in the solicitation, including their interests in shares of OrthAlliance’s common stock, is set forth in OrthAlliance’s Annual Report on Form 10-K for the year ended December 31, 2000 filed with the SEC. Investors may obtain additional information regarding the interests of OrthAlliance and its directors and officers in the merger by reading the proxy statement/prospectus when it becomes available. This does not constitute an offer of any securities for sale.
A. Orthodontic Centers of America PowerPoint Presentation
B. OrthAlliance Form of Service Agreement Amendment
AMENDMENT TO SERVICE AGREEMENT
THIS AMENDMENT TO SERVICE AGREEMENT (“Amendment”) is made and entered into as of June __, 2001, by and among ______________________, a ______________ professional corporation (the “PC”); Dr. _____________________, a resident of the State of ______________ (the “Doctor”); and OrthAlliance, Inc., a Delaware corporation (“Manager”).
R E C I T A L S:
A. The PC owns and operates an orthodontic practice (the “Practice”) with respect to which the Doctor provides orthodontic services as an employee of the PC in the ____________, ___________ area.
B. The PC and Manager are parties to that certain Service Agreement, dated as of _______________, 199__, as such may have been amended by the parties prior to the date hereof (as so amended, the “Service Agreement”), a true, correct and complete copy of which is attached hereto as Exhibit A.
C. The PC, as employer, and the Doctor, as employee, are parties to that certain Employment Agreement, dated as of _________, 199___, as such may have been amended prior to the date hereof (the “Employment Agreement”).
D. Manager has entered into an Agreement and Plan of Merger, dated as of May 16, 2001 (the “Merger Agreement”), with Orthodontic Centers of America, Inc. (“OCA”), and to facilitate the transactions contemplated in the Merger Agreement (the “Merger”), the parties to this Amendment desire to amend the terms of the Service Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the parties hereby agrees as follows:
A G R E E M E N T:
1. OCA Systems. The PC and the Doctor covenant and agree that, upon and after the Merger during the term of the Service Agreement, they will utilize only OCA’s and its subsidiaries’ proprietary computer software and business systems, including, without limitation, “Walrus,” “Penny Lane” and “Payroll Supreme”, in connection with patient and financial accounting, patient scheduling, collections, payroll, benefits, accounts payable, supply ordering and purchasing, patient insurance and any other business functions of the Practice. The PC and the Doctor will permit Manager and/or OCA to install such computer software in the computer hardware located in the premises in which the Practice operates, as soon as reasonably practicable following the Merger. In the event that the PC’s existing computer hardware cannot support the installation of such software, the PC (with Manager’s reasonable assistance, as requested) covenants and agrees that it will promptly procure the necessary computer hardware.
2. Advertising. The PC and the Doctor further covenant and agree that, upon and after the Merger during the term of the Service Agreement, they will not, without the prior written consent of Manager, change the status as of the date hereof of the advertisement, or non-advertisement, as the case may be, of the Practice (such as beginning to advertise or ceasing to advertise) to the general public through printed media (including newspapers and magazines), electronic media (including television, radio and the Internet), outdoor advertising, direct mail or “mailer” advertising, or yellow pages advertising more than a quarter page in size.
3. Employment Agreement. The PC and the Doctor covenant and agree that concurrently with the execution and delivery of this Amendment, they shall execute and deliver, and provide a true, correct and complete copy to Manager of, an Amendment to Employment Agreement, in substantially the form attached hereto as Exhibit B. Each of the PC and the Doctor represents and warrants to Manager that Exhibit C hereto is a true, correct and complete copy of the Employment Agreement, as amended to date, and that the Employment Agreement contains the entire agreement and understanding of the parties thereto with respect to the subject matter thereof, and has not been, and will not be, amended, terminated or supplemented, orally or in writing, except as reflected in such Exhibit B and Exhibit C. Each of the PC and the Doctor further represents and warrants to Manager that the Employment Agreement is in full force and effect and is enforceable against such party in accordance with its terms. The PC covenants and agrees with Manager that it will enforce, and the Doctor covenants and agrees with Manager that he or she will fully comply with, the provisions of the Employment Agreement, as amended, including, without limitation, the continued employment of the Doctor throughout the term thereof.
4. Guarantee. The Doctor fully and unconditionally guarantees to Manager the performance by the PC of the PC’s duties, obligations and liabilities under the Service Agreement, including, without limitation, the payment of service fees and other amounts due under the Service Agreement, during the term of the Employment Agreement as amended as contemplated in Section 3 hereof. The Doctor covenants and agrees with Manager that he or she adopts, and will fully comply with and be subject to, the restrictive covenants set forth in Sections 2.7 and 2.9 of the Service Agreement, as if set forth in full herein.
5. Conditioned on Consummation of Merger. This Amendment, and the obligations of each of the parties hereunder, is expressly conditioned upon and subject to the consummation of the Merger. In the event that the Merger Agreement shall be voided or terminated (otherwise than by its consummation), this Amendment shall thereupon be automatically terminated and void.
6. No Other Changes. Except as expressly set forth in this Amendment, the terms and conditions of the Service Agreement shall remain in place and shall not be altered or amended, except by any further amendment to the Service Agreement made in accordance with the terms of the Service Agreement.
7. Counterparts; Authorization. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when executed and delivered shall be deemed an original effective for binding the parties hereto, but all of which shall together constitute one and the same instrument. Each of parties hereto represents and warrants to the other parties hereto that the execution, delivery and performance
of this Amendment by such party has been duly authorized by all necessary laws, resolutions and corporate action, and this Amendment constitutes the valid and enforceable obligations of such party in accordance with its terms.
IN WITNESS WHEREOF, the parties have hereunto set their hand as of the day and year first above written.
| “DOCTOR” ________________________________________________ Name: Dr. ________________________________________ “PC” __________________________________________, P.C. By:____________________________________________ Name: Dr. ________________________________________ Title:___________________________________________ “MANAGER” ORTHALLIANCE, INC. By:______________________________________________ Name:____________________________________________ Title:_____________________________________________ |
C. OrthAlliance Form of Employment Agreement Amendment
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made and entered into as of __________, 2001, by and between __________________, a _______ professional ______________ (the “PC”), and Dr. _______________________, an individual residing in the State of ___________________ (the “Doctor”).
RECITALS:
A. The Doctor and the PC are parties to that certain Employment Agreement, dated as of __________________, 199__, as such may have been amended by the parties prior to the date hereof (as so amended, the “Employment Agreement”); and
B. OrthAlliance, Inc., a Delaware corporation (“OrthAlliance”), and Orthodontic Centers of America, Inc. have entered into that certain Agreement and Plan of Merger, dated as of May 16, 2001 (the “Merger Agreement”), and to facilitate the transactions contemplated in the Merger Agreement, the Doctor and the PC each desire to amend the Employment Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the parties hereby agrees as follows:
AGREEMENT:
1. Amendment of Term Provision. Section 2 of the Employment Agreement is hereby amended by deleting the current text thereof and inserting the following in replacement thereof:
| “The term of this Agreement and the Orthodontist’s employment hereunder shall commence as of ____________, 199__ (the “Commencement Date”) and extend through the later to occur (the “Initial Term”) of (i) the fifth anniversary of the Commencement Date, or (ii) the third anniversary of the effective date of the merger of a subsidiary of Orthodontic Centers of America, Inc. with and into OrthAlliance, Inc. pursuant to that certain Agreement and Plan of Merger, dated as of May 16, 2001, among such parties. The Initial Term shall be automatically renewed and extended thereafter on the same terms and conditions herein for additional terms of one (1) year each, unless and until terminated in accordance with Section 4 hereof. Sections 5, 6, 8 and 10 hereof shall survive termination or expiration of the term hereof.” |
2. Third-Party Beneficiary. The parties hereto hereby acknowledge and agree that OrthAlliance, Inc., a Delaware corporation (“OrthAlliance”), and its successors and assigns, shall be and remain a third-party beneficiary of the provisions of this Agreement, with legal and equitable rights and remedies to enforce the rights of the PC hereunder, in addition to, and not in limitation of, the PC’s rights, and that OrthAlliance provides, directly or through a subsidiary,
certain business and management services to the PC which materially benefit the Doctor. The parties further acknowledge and agree that this provision does not, and shall not be deemed to, create or result in an employment relationship between OrthAlliance and the Doctor.
3. Conditioned on Consummation of Merger. This Amendment, and the obligations of each of the parties hereunder, is expressly conditioned upon and subject to the consummation of the merger contemplated by the Merger Agreement. In the event that the Merger Agreement shall be voided or terminated (otherwise than by its consummation), this Amendment shall thereupon be automatically terminated and void.
4. No Other Changes. Except as set forth in this Amendment, the terms and conditions of the Employment Agreement shall remain in place and shall not be altered or amended, except by any further amendment to the Employment Agreement made in accordance with the terms of the Employment Agreement.
5. Counterparts; Authorization. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when executed and delivered shall be deemed an original effective for binding the parties hereto, but all of which shall together constitute one and the same instrument. Each of parties hereto represents and warrants to the other party hereto that the execution, delivery and performance of this Amendment by such party has been duly authorized by all necessary laws, resolutions and corporate action, and this Amendment constitutes the valid and enforceable obligations of such party in accordance with its terms.
IN WITNESS WHEREOF, the parties have hereunto set their hand as of the day and year first above written.
| “DOCTOR” _________________________________________________ Name: Dr. _________________________________________ “PC” _________________________________________, P.C. By:_______________________________________________ Name: Dr.__________________________________________ Title:______________________________________________ |