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As filed with the Securities and Exchange Commission on March 27, 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 NON-EMPLOYEE DIRECTOR STOCK 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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<TABLE>
<CAPTION>
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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<S> <C> <C> <C> <C>
Class A Common Stock, par value $.001 per
share.................................... 200,000 $12.81 $2,562,000 $756
</TABLE>
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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 approximately 15,000 shares of Class A
Common Stock of Registrant pursuant to the OrthAlliance, Inc. 1997
Non-Employee Director Stock Plan (the "Plan") at an exercise price of
$12.00 per share, and (ii) the average of the high and low prices of the
Registrant's Class A Common Stock on March 23, 1998 as reported by the
Nasdaq National Market for approximately 185,000 shares of Class A Common
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 non-employee directors 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 Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997 filed with the Commission on November 14, 1997;
and
(c) 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.
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
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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.
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
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 Non-Employee Director Stock Plan
(incorporated by reference to Exhibit 10.6 of Registrant's
Registration Statement on Form S-1, Registration
No. 333-27143).
4.4 Form of Stock Option Agreement pursuant to OrthAlliance,
Inc. 1997 Non-Employee Director Stock Plan (incorporated by
reference to Exhibit 10.6 of Registrant's Registration
Statement on Form S-1, Registration No. 333-27143).
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).
24.1 Power of Attorney (included on signature page).
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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 23rd day of
February, 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Sam Westover President, Chief Executive February 23, 1998
- ---------------------------------- Officer and Director
Sam Westover (Principal Executive Officer)
/s/ Robert S. Chilton Chief Financial Officer February 23, 1998
- ---------------------------------- (Principal Financial and
Robert S. Chilton Accounting Officer)
/s/ Randall K. Bennett Director February 23, 1998
- ----------------------------------
Randall K. Bennett, D.D.S., M.S.
/s/ Douglas D. Durbin Director February 23, 1998
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Douglas D. Durbin, D.M.D., M.S.D.
U. Bertram Ellis, Jr. Director March 9, 1998
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U. Bertram Ellis, Jr.
/s/ Craig L. McKnight Director February 23, 1998
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Craig L. McKnight
/s/ Randall A. Schmidt Director February 20, 1998
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Randall A. Schmidt, D.D.S., M.S.D.
/s/ W. Dennis Summers Director February 20, 1998
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W. Dennis Summers
/s/ Jonathan E. Wilfong Chairman of the Board February 23, 1998
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Jonathan E. Wilfong
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
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<S> <C> <C>
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 Non-Employee Director Stock Plan (incorporated by
reference to Exhibit 10.6 of Registrant's Registration Statement on Form
S-1, Registration No. 333-27143).
4.4 Form of Stock Option Agreement pursuant to OrthAlliance, Inc. 1997 Non-Employee
Director Stock Plan (incorporated by reference to Exhibit 10.6 of Registrant's
Registration Statement on Form S-1, Registration No. 333-27143).
5.1 Opinion of King & Spalding regarding legality of shares being registered. 1
23.1 Consent of Arthur Andersen LLP 2
23.2 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
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EXHIBIT 5.1
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Telephone (404) 572-4600
Telecopier (404) 572-5100
March 26, 1998
OrthAlliance, Inc.
23848 Hawthorne Boulevard
Suite 200
Torrance, California 90505
Ladies and Gentlemen:
We have acted as counsel to OrthAlliance, Inc. (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, covering
the offering pursuant to the OrthAlliance, Inc. 1997 Non-Employee Director Stock
Plan (the "Plan") of up to 200,000 shares (the "Shares") of the Company's Class
A Common Stock, $.001 par value per share. In connection therewith, we have
examined such corporate records, certificates of public offices and other
documents and records as we have considered necessary or proper for the purpose
of this opinion.
This opinion is limited by and is in accordance with, the January 1, 1992,
edition of the Interpretive Standards applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion Committee of the
Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations which we
deem relevant, we are of the opinion that the Shares, when issued and delivered
as described in the Registration Statement and Plan, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ King & Spalding
King & Spalding
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
(i) May 2, 1997 (except with respect to the matter discussed in the last
paragraph of Note 1 as to which the date is July 25, 1997), related to the
balance sheet of OrthAlliance, Inc. (a development-stage-enterprise, a Delaware
corporation, formerly Premier Orthodontic Holdings, Inc.) as of December 31,
1996 and related statements of operations, stockholder's equity, and cash flows
for the period from inception (October 21, 1996) to December 31, 1996; (ii)
April 4, 1997 related to the balance sheet of US Orthodontic Care, Inc. (a
development-stage enterprise and a Georgia corporation) as of December 31, 1996
and the related statements of operations, shareholder's deficit, and cash flows
for the period from inception (February 7, 1996) to December 31, 1996; (iii)
April 11, 1997 related to the balance sheet of Premier Orthodontic Group, Inc.
(a development-stage enterprise and a Delaware corporation) as of December 31,
1996 and the related statements of operations, owner's deficit, and cash flows
for the period from inception (November 26, 1996) to December 31, 1996, and to
all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
March 24, 1998
