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As filed with the Securities and Exchange Commission on August 14, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ORTHALLIANCE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4632134
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
23848 HAWTHORNE BOULEVARD,
SUITE 200
TORRANCE, CALIFORNIA 90505
(Address, including zip code, of registrant's principal executive offices)
ORTHALLIANCE, INC.
1997 ORTHODONTIST STOCK OPTION PLAN
(Full title of plan)
SAM WESTOVER
CHIEF EXECUTIVE OFFICER
23848 HAWTHORNE BOULEVARD
SUITE 200
TORRANCE, CALIFORNIA 90505
(310) 791-5656
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
COPY TO:
PAUL A. QUIROS, ESQ.
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
(404) 572-4600
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount to Offering Price Per Aggregate Offering Amount of
Title of Securities to be Registered be Registered Share(1) Price(1) Registration Fee
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Class A Common Stock, par value $.001 per
share.......................................... 100,000 $12.79 $1,278,583 $377.18
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(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) on the basis of the average price of the total
of (i) options previously granted for 5,210; 11,145; 637; 791; 13,108;
12,011; 5,000; 2,428; 2,786; 2,672; and 1,781 shares of Class A Common
Stock (the "Stock") pursuant to the OrthAlliance 1997 Orthodontist Stock
Option Plan (the "Plan") at exercise prices per share of $12.00,
$13.025, $12.6875, $14.30, $14.675, $15.80, $15.525, $15.9125, $14.65,
$13.1875, and $11.75 respectively, and (ii) the average of the high and
low prices of the Registrant's Stock on August 11, 1998 as reported by
the Nasdaq National Market for 42,431 shares of Stock under the Plan for
which options have not been granted.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating officers and employees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). These documents and the documents incorporated by reference in this
registration statement (the "Registration Statement") pursuant to Item 3 of
Part II below, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by the Registrant with
the Securities and Exchange Commission (the "Commission") and are incorporated
by reference in this Registration Statement:
(a) The Registrant's Prospectus dated August 21, 1997;
(b) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997 filed with the Commission on March 31, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 filed with the Commission on May 15, 1998;
and
(d) The description of the Registrant's Class A Common Stock, par
value $.001 per share ("Common Stock"), contained in the Registration
Statement on Form 8-A, dated August 12, 1997, filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment filed for the purpose of updating such description.
In addition, all documents filed by the Registrant subsequent to the date
of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, and prior to the filing of a post-effective amendment to
this Registration Statement that indicate that all securities offered hereunder
have been sold or that deregister all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part of this Registration Statement from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Registrant's Amended and Restated Certificate of Incorporation
("Certificate") provides that no director of the Registrant shall be liable for
breach of fiduciary duty as a director except for (i) any breach of the
director's duty of loyalty to the Registrant or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law; (iii) willful or negligent violations of certain
provisions of the Delaware General Corporation Law ("DGCL") imposing certain
requirements with respect to stock repurchases, redemptions and dividends; or
(iv) any transaction from which the director derived an improper personal
benefit.
Pursuant to the Registrant's Certificate and Amended and Restated Bylaws,
the Registrant is obligated to indemnify each of its directors and officers to
the fullest extent permitted by the DGCL. Under Section 145 of the DGCL, the
Registrant may indemnify any of its directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with a
threatened, pending or completed action, suit or proceeding brought against him
by reason of the fact that he is or was a director or officer (i) if any such
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Registrant and (ii) in connection with any
criminal action or proceeding if such person had no reasonable cause to believe
such conduct was unlawful.
In actions brought by or in the right of the Registrant, Section 145 of
the DGCL provides that no indemnification for expenses may be made in respect
of any claim, issue or matter as to which any director or officer of the
Registrant shall have been adjudged to be liable for negligence or misconduct
in the performance of such person's duty to the Registrant unless, and only to
the extent that, the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in review of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Pursuant to the Registrant's Bylaws, the Registrant may purchase and
maintain insurance on behalf of any director or officer of the Registrant
against any liability asserted against and incurred by such director or
officer, whether or not the Registrant would have the power to indemnify such
officer or director against such liability under the Bylaws or DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Description
4.1 Amended and Restated Certificate of Incorporation of
Registrant (incorporated by reference to Exhibit 3.1 of
Registrant's Registration Statement on Form S-1,
Registration No. 333-27143).
4.2 Amended and Restated Bylaws of Registrant (incorporated by
reference to Exhibit 3.2 of Registrant's Registration
Statement on Form S-1, Registration No. 333-27143).
4.3 OrthAlliance, Inc. 1997 Orthodontist Stock Option Plan.
4.4 Form of Stock Option Agreement pursuant to OrthAlliance,
Inc. 1997 Orthodontist Stock Option Plan.
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5.1 Opinion of King & Spalding regarding legality of shares
being registered.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
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
this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change
to such information in this Registration Statement.
(2) 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 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) 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 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 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 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 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 Securities 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, 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 Torrance, State of California, on the 30th day of
July, 1998.
ORTHALLIANCE, INC.
By: /s/ Sam Westover
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Sam Westover, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Sam Westover and Robert S. Chilton and each of
them, as true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for such person 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 Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully and to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and as of
the dates indicated.
Signature Title Date
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/s/ Sam Westover President, Chief Executive July 30, 1998
- ----------------------------------- Officer and Director
Sam Westover (Principal Executive Officer)
/s/ Robert S. Chilton Chief Financial Officer July 30, 1998
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Robert S. Chilton Accounting Officer)
/s/ Randall K. Bennett Director July 30, 1998
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Randall K. Bennett, D.D.S., M.S.
/s/ Douglas D. Durbin Director July 30, 1998
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Douglas D. Durbin, D.M.D., M.S.D.
/s/ U. Bertram Ellis, Jr. Director July 30, 1998
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U. Bertram Ellis, Jr.
/s/ Craig McKnight Director July 30, 1998
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Craig L. McKnight
/s/ Randall A. Schmidt Director July 31, 1998
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Randall A. Schmidt, D.D.S., M.S.D.
Director July __, 1998
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W. Dennis Summers
/s/ Jonathan E. Wilfong Chairman of the Board July 30, 1998
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Jonathan E. Wilfong
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EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
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4.1 Amended and Restated Certificate of Incorporation of
Registrant (incorporated by reference to Exhibit 3.1 of
Registrant's Registration Statement on Form S-1,
Registration No. 333-27143).
4.2 Amended and Restated Bylaws of Registrant (incorporated
by reference to Exhibit 3.2 of Registrant's Registration
Statement on Form S-1, Registration No. 333-27143).
4.3 OrthAlliance, Inc. 1997 Orthodontist Stock Option Plan.
4.4 Form of Stock Option Agreement pursuant to OrthAlliance,
Inc. 1997 Orthodontist Stock Option Plan.
5.1 Opinion of King & Spalding regarding legality of shares
being registered.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).