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As filed with the Securities and Exchange Commission on June __, 2000
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 95-463213
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
21535 HAWTHORNE BOULEVARD, SUITE 200
TORRANCE, CALIFORNIA 90503
(Address, including zip code, of registrant's principal executive offices)
ORTHALLIANCE, INC.
2000 EMPLOYEE STOCK OPTION PLAN
(Full title of plan)
SAM WESTOVER
CHIEF EXECUTIVE OFFICER
21535 HAWTHORNE BOULEVARD, SUITE 200
TORRANCE, CALIFORNIA 90503
(310) 792-1300
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
COPY TO:
MICHAEL J. O'SULLIVAN, ESQ.
MUNGER, TOLLES & OLSON LLP
355 SOUTH GRAND AVENUE, SUITE 3500
LOS ANGELES, CALIFORNIA 90071-1560
(213) 683-9100
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Proposed Maximum
Title of Maximum Aggregate
Securities To Be Amount To Be Offering Price Offering Amount of
Registered Registered(1) Per Share(2) Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Class A Common 500,000 (2) $2,937,500 $775.50
Stock, par value
$.001 per share
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the OrthAlliance, Inc. 2000
Employee Stock Option Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
outstanding shares of Common Stock of OrthAlliance, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933 on the basis of the average price of the total of
(i) options previously granted for 100,000 shares of Class A Common Stock
(the "Common Stock") under the 2000 Employee Stock Option Plan (the "Plan")
at an exercise price of $6.00 per share and (ii) the average of the high
and low sales prices per share reported for the Common Stock of
OrthAlliance, Inc. on the Nasdaq National Market on May 31, 2000 for the
400,000 shares of Common Stock for which options have not been granted
under the Plan.
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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 participants 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 Annual Report on Form 10-K for the year ended
December 31, 1999 filed with the Commission on March 30, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000 filed with the Commission on May 15, 2000; 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.
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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.
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<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
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<TABLE>
<S> <C>
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. 2000 Employee Stock Option Plan.
4.4 Form of Stock Option Agreement pursuant to OrthAlliance, Inc. 2000
Employee Stock Option Plan.
5.1 Opinion of Munger, Tolles & Olson LLP regarding legality of shares
being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Munger, Tolles & Olson LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
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; and
(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
anew 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.
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(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 2nd day of June, 2000.
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, James C. Wilson and Paul H. Hayase and
each of them, a 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 June 2, 2000
------------------------ Officer and Director
Sam Westover (Principal Executive Officer)
/s/ JAMES C. WILSON Chief Financial Officer June 2, 2000
------------------------ (Principal Financial and
James C. Wilson Accounting Officer)
/s/ W. DENNIS SUMMERS Chairman of the Board June 2, 2000
------------------------
W. Dennis Summers
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<TABLE>
<S> <C> <C>
Director June _, 2000
------------------------
Randall K. Bennett
/s/ LARRY D. DORMOIS Director June 2, 2000
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Larry D. Dormois
/s/ DOUGLAS D. DURBIN Director June 2, 2000
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Douglas D. Durbin
/s/ G. HARRY DURITY Director June 2, 2000
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G. Harry Durity
Director June _, 2000
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Raymond G.W. Kubisch
Director June _, 2000
------------------------
Craig L. McKnight
Director June _, 2000
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Stephen G. Tracey
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT DESCRIPTION PAGE
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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. 2000 Employee Stock Option Plan.
4.4 Form of Stock Option Agreement pursuant to OrthAlliance,
Inc. 2000 Employee Stock Option Plan.
5.1 Opinion of Munger, Tolles & Olson LLP regarding legality of
shares being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Munger, Tolles & Olson LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
