<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1996
REGISTRATION NO. 333-
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________
ORTHODONTIC CENTERS OF AMERICA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 72-1278948 8741
(State or other jurisdiction (I.R.S. Employer (Primary Standard Industrial
of organization) Identification Number) Incorporation or Classification Code Number)
</TABLE>
13000 SAWGRASS VILLAGE CIRCLE, SUITE 41
PONTE VEDRA BEACH, FLORIDA 32082
(904) 273-0004
(Address, Including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
____________________
DR. GASPER LAZZARA, JR.
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ORTHODONTIC CENTERS OF AMERICA, INC.
13000 SAWGRASS VILLAGE CIRCLE, SUITE 41
PONTE VEDRA BEACH, FLORIDA 32082
(904) 273-0004
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
____________________
Copies of communications to:
J. CHASE COLE, ESQ.
THEODORE W. LENZ, ESQ.
WALLER LANSDEN DORTCH & DAVIS
2100 NASHVILLE CITY CENTER
NASHVILLE, TENNESSEE 37219-1760
(615) 244-6380
____________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement and
appropriate stockholder action.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
--------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
---------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Securities to be Registered Registered Price Per Share(1) Offering Price Registration Fee
==================================================================================================================================
<S> <C> <C> <C> <C>
Shares of Common Stock,
$.01 par value 1,000,000 Shares $33.50 $33,500,000 $11,552
====================================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purposes of calculating the registration fee, based upon the
average of the high and low sales prices for June 7, 1996.
__________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
ORTHODONTIC CENTERS OF AMERICA, INC.
CROSS REFERENCE SHEET
(PURSUANT TO ITEM 501(B) OF REGULATION S-K)
<TABLE>
<CAPTION>
Items of Form S-4 Prospectus Caption or Location
----------------- ------------------------------
<S> <C>
A. INFORMATION ABOUT THE TRANSACTION
1. Forepart of Registration State-
ment and Outside Front Cover
Page of Prospectus............. Facing Page of Registration Statement;
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus...... Inside Front Cover Page of Prospectus
3. Risk Factors, Ratio of Earnings
to Fixed Charges and Other
Information.................... "The Company"; "Risk Factors"
4. Terms of the Transaction........ Not Applicable
5. Pro Forma Financial Information. Not Applicable
6. Material Contracts with the
Company Being Acquired......... Not Applicable
7. Additional Information Required
for Reoffering by Persons
and Parties Deemed to be
Underwriters................... Not Applicable
8. Interests of Named Experts
and Counsel.................... Not Applicable
9. Disclosure of Commission
Position on Indemnification for
Securities Act Liabilities..... Not Applicable
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to
S-3 Registrants............... "Incorporation of Certain Information
by Reference"; "The Company"
11. Incorporation of Certain
Information by Reference...... "Incorporation of Certain Information
by Reference"
12. Information with Respect to
S-2 or S-3 Registrants........ Not Applicable
13. Incorporation of Certain
Information by Reference...... Not Applicable
14. Information with Respect to
Registrants Other than S-3
or S-2 Registrants............ Not Applicable
</TABLE>
<PAGE>
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to
S-3 Companies................. Not Applicable
16. Information with Respect to
S-2 or S-3 Companies.......... Not Applicable
17. Information with Respect to
Companies Other than S-3
or S-2 Companies.............. Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents
or Authorizations are to be
Solicited..................... Not Applicable
19. Information if Proxies, Consents
or Authorizations are not to
be Solicited in an Exchange
Offer......................... Not Applicable
<PAGE>
PROSPECTUS
1,000,000 SHARES
ORTHODONTIC CENTERS OF AMERICA, INC.
COMMON STOCK
____________________________
This Prospectus relates to the issuance from time to time by Orthodontic
Centers of America, Inc., a Delaware corporation (the "Company"), of shares of
the Company's common stock, par value $.01 per share (the "Common Stock"), in an
aggregate amount of up to 1,000,000 shares, upon terms to be determined at the
time of such offering. The Common Stock may be offered in such amounts, at such
prices and on such terms to be set forth in a supplement to this Prospectus (a
"Supplement").
The Common Stock is to be offered directly by the Company in connection with
the acquisition of the assets of, or ownership interests in, certain entities
owned by orthodontists who affiliate with the Company. The specific terms under
which the Common Stock is being offered in connection with the delivery of this
Prospectus will be set forth in the applicable Supplement and will include the
specific number of shares of Common Stock and the issuance price per share. The
Common Stock may not be offered through this Prospectus without delivery of the
applicable Supplement.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFERING MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SHARES OF COMMON STOCK OFFERED
HEREBY OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH SHARES TO
ANY PERSON, OR THE SOLICITATION OF A PROXY FROM ANY PERSON, IN ANY JURISDICTION
IN WHICH SUCH OFFER, SOLICITATION OF AN OFFER OR PROXY SOLICITATION IS UNLAWFUL.
THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS
ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_______________
The date of this Prospectus is June __, 1996
<PAGE>
AVAILABLE INFORMATION
The Company has filed a Registration Statement (the "Registration Statement")
on Form S-4, including any amendments thereto, with the Securities and Exchange
Commission (the "Commission") with respect to the Common Stock. This Prospectus
and any accompanying Supplement do not contain all of the information set forth
in the Registration Statement and the exhibits and schedules thereto.
Statements contained in this Prospectus as to the contents of any contract or
other document referred to are not necessarily complete and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement or as previously filed with the Commission
and incorporated herein by reference. For further information with respect to
the Company and the Common Stock, reference is made to the Registration
Statement, exhibits and schedules. A copy of the Registration Statement may be
inspected by anyone without charge at the Commission's principal office at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of
all or any part thereof may be obtained from the Commission upon payment of
certain fees prescribed by the Commission.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission, at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as the following Commission Regional
Offices: New York Regional Office, 7 World Trade Center, 13th Floor, New York,
New York 10048; and Chicago Regional Office, 500 West Madison Street, 14th
Floor, Chicago, Illinois 60601-2511. Copies can be obtained by mail at
prescribed rates. Requests should be directed to the Commission's Public
Reference Section, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
INCORPORATION BY REFERENCE
The following documents filed with the Commission by the Company pursuant to
the Exchange Act are incorporated by reference into this Prospectus: (i) the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, (ii)
the Company's Quarterly Report on Form 10-Q for the three months ended March 31,
1996, and (iii) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, dated December 6, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus shall be
deemed to be incorporated by reference into this Prospectus. Any statement
contained herein, or in a document incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. A COPY OF THESE DOCUMENTS IS AVAILABLE, WITHOUT
CHARGE, UPON WRITTEN OR ORAL REQUEST FROM THE COMPANY. REQUESTS SHOULD BE
DIRECTED TO BARTHOLOMEW F. PALMISANO, SR., CHIEF FINANCIAL OFFICER, ORTHODONTIC
CENTERS OF AMERICA, INC. AT 3850 N. CAUSEWAY BOULEVARD, SUITE 990, METAIRIE,
LOUISIANA 70002, OR AT (504) 834-4392.
2
<PAGE>
THE COMPANY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including the notes thereto, incorporated
by reference in this Prospectus. Unless the context otherwise requires, the
"Company" refers to Orthodontic Centers of America, Inc. and its subsidiaries,
the "Orthodontic Centers" refers to the orthodontic centers affiliated, or which
will be affiliated, with the Company, "Affiliated Orthodontists" refers to the
orthodontists who provide orthodontic services at the Orthodontic Centers and
"Affiliated Orthodontic Entities" refers to the professional entities which are
owned by Affiliated Orthodontists. Except as otherwise indicated, the
information in this Prospectus has been adjusted to reflect a two-for-one stock
split of the Common Stock effected in the form of a 100% stock dividend as of
December 29, 1995.
The Company develops and manages orthodontic practices pursuant to long-term
agreements in the approximately $3.6 billion orthodontic industry. The Company
provides capital for the development and growth of Orthodontic Centers and
manages the business and marketing aspects of the Affiliated Orthodontists'
practices, thereby allowing Affiliated Orthodontists to focus on delivering
quality patient care. Management believes that the Company's operating
strategy has allowed the Affiliated Orthodontists to realize significantly
greater productivity and profitability than traditional orthodontic
practices, thereby presenting an attractive opportunity to orthodontists and
allowing the Affiliated Orthodontists to compete more effectively than
traditional local practices.
The Company has implemented an aggressive growth strategy to develop new
Orthodontic Centers in conjunction with current and newly-recruited Affiliated
Orthodontists and to acquire the assets of, and enter into long-term agreements
with, existing orthodontic practices in both new and existing markets. According
to the 1995 Journal of Clinical Orthodontists Orthodontic Practice Study, the
United States orthodontic industry is highly fragmented, with approximately 90%
of the approximately 9,060 practicing orthodontists acting as sole
practitioners. Because Affiliated Orthodontists have generally experienced
better financial performance than in their prior traditional practices,
management believes that affiliating with the Company offers practicing
orthodontists and recent graduates an attractive and profitable opportunity.
3
<PAGE>
RISK FACTORS
An investment in the shares of Common Stock offered hereby involves a high
degree of risk. Prospective investors should carefully consider the following
risk factors, in addition to the other information set forth in this Prospectus,
in connection with an investment in the shares of Common Stock offered hereby.
GOVERNMENT REGULATION. The orthodontic industry and orthodontic practices are
regulated extensively at the state and federal levels. The Company does not
control the practice of orthodontics by the Affiliated Orthodontists or their
compliance with the regulatory requirements directly applicable to orthodontists
and their practices. The laws of many states prohibit non-orthodontic entities
(such as the Company) from practicing orthodontics (which in certain states
includes managing or operating an orthodontic office), splitting professional
fees with orthodontists, owning or controlling the assets of an orthodontic
practice, employing orthodontists, maintaining an orthodontist's patient records
or controlling the content of an orthodontist's advertising. The laws of many
states also prohibit orthodontists from paying any portion of fees received for
orthodontic services in consideration for the referral of a patient. In
addition, many states impose limits on the tasks that may be delegated by an
orthodontist to other staff members. These laws and their interpretation vary
from state to state and are enforced by regulatory authorities with broad
discretion. There can be no assurance that any review of the Company's business
relationships by courts or other regulatory authorities will not result in
determinations that could adversely affect the operations of the Company or that
the regulatory environment will not change to restrict the Company's existing or
future operations. Further, there can be no assurance that the legality of the
Company's long-term service, management and consulting agreements will not be
successfully challenged or that enforceability of the provisions thereof will
not be limited. The laws and regulations of certain states in which the Company
may seek to expand may require the Company to change its contractual
relationship with orthodontists in a manner that may restrict the Company's
operations in those states or may prevent the Company from acquiring the assets
of or managing orthodontists' practices in those states. Further, there can be
no assurance that the laws and regulations of states in which the Company
currently maintains operations will not change or be interpreted in the future
to either restrict or adversely affect the Company's relationships with
orthodontists in those states.
4
<PAGE>
RISKS ASSOCIATED WITH EXPANSION. The Company has expanded from managing 11
Orthodontic Centers at December 31, 1989 to managing 159 Orthodontic Centers at
June 7, 1996 and expects to continue to add additional Orthodontic Centers. The
success of the Company's expansion strategy will depend on a number of factors,
including (i) the Company's ability to affiliate with orthodontists to open new
Orthodontic Centers, the availability of suitable markets and the Company's
ability to obtain good locations within those markets; (ii) the Company's
ability to identify and affiliate with existing orthodontic practices and to
integrate such practices into the Company's existing operations; (iii) the
availability of adequate financing to fund the Company's expansion strategy;
(iv) regulatory constraints and (v) the ability of the Company to effectively
manage additional Orthodontic Centers. A shortage of available orthodontists
with the skills required by the Company would have a material adverse effect on
the Company's expansion opportunities. There can be no assurance that the
Company's expansion strategy will continue to be successful or that
modifications to the Company's strategy will not be required.
DEPENDENCE ON AFFILIATED ORTHODONTISTS. The Company receives fees for
services provided to orthodontic practices under service, management and
consulting agreements, but does not employ orthodontists or control the
practices of the Affiliated Orthodontists. The Company's revenue is dependent on
revenue generated by the Affiliated Orthodontic Entities are for terms of 20
years and may be terminated by either party for "cause," which includes a
material default by or bankruptcy of the other party. Any material loss of
revenue by the Affiliated Orthodontists would have a material adverse effect on
the Company.
ADVANCES TO AFFILIATED ORTHODONTIC ENTITIES. The Company has made and intends
to continue to make unsecured advances to Affiliated Orthodontic Entities to
fund their portion of the initial operating losses incurred in the development
of new Orthodontic Centers. Management anticipates that such advances will
increase significantly in the future as the Company pursues its aggressive
expansion strategy. While the Company expects to be repaid from future
operations of these Affiliated Orthodontic Entities, their failure to repay such
advances could have a material adverse effect on the Company's results of
operations.
DEPENDENCE ON KEY PERSONNEL. The success of the Company is dependent upon the
continued services of the Company's senior management, particularly its Chairman
of the Board, Chief Executive Officer and President, Dr. Gasper Lazzara, Jr.,
and its Chief Financial Officer, Bartholomew F. Palmisano, Sr. The loss of the
services of either Dr. Lazzara or Mr. Palmisano would have a material adverse
effect on the Company's business and prospects. The Company's success also
depends on its ability to attract and retain other highly qualified managerial
personnel.
COMPETITION. The business of providing orthodontic services is highly
competitive in each market in which an Orthodontic Center operates. Each
Affiliated Orthodontist faces competition from other orthodontists and general
dentists in the communities served, many of whom have more established practices
in the market. While management believes that the Company is the only entity
currently developing and managing orthodontic practices throughout the United
States, there are several companies pursing similar strategies in other segments
of the health care industry (including general dentistry) and companies with
similar objectives and greater access to financial resources may enter the
Company's markets and compete with the Company.
RISK OF PROVIDING ORTHODONTIC SERVICES. The Orthodontic Centers provide
orthodontic services to the public and are exposed to the risk of professional
liability and other claims. Such claims, if successful, could result in
substantial damage awards to the claimants which could exceed the limits of any
applicable insurance coverage. The Company does not control the practice of
orthodontics by the Affiliated Orthodontists or their compliance with the
regulatory and other requirements directly applicable to orthodontists and their
practices. Each Affiliated Orthodontist has undertaken, however, to comply with
all applicable regulations and requirements, and the Company is indemnified
under its long-term agreements for claims against the Affiliated Orthodontists.
The Company maintains liability insurance for itself and is named as an
additional insured party under the liability insurance policy required to be
maintained by each Affiliated Orthodontist. However, a successful malpractice
claim against the Company or an Affiliated Orthodontist could have a material
adverse effect on the Company.
5
<PAGE>
HEALTH CARE REFORM. Congress and certain state legislatures have considered
various types of health care reform, including comprehensive revisions to the
current health care system. It is uncertain what legislative proposals will be
adopted in the future, if any, or what actions Congress, state legislatures or
third party payors may take in anticipation of or in response to any health care
reform proposals or legislation. Health care reform legislation adopted by
Congress or state legislatures could have a material adverse effect on the
operations of the Company, and changes in the health care industry, such as the
growth of managed care organizations and provider networks, may result in lower
payment levels for the services of the Affiliated Orthodontists.
CONTROL BY PRINCIPAL STOCKHOLDERS. At June 7, 1996, Dr. Lazzara and Mr.
Palmisano, collectively, beneficially owned approximately 23.7% of the Company's
outstanding shares of Common Stock. As a result of their holdings, Dr. Lazzara
and Mr. Palmisano together will continue to have a disproportionate ability to
affect the election of the members of the Board of Directors of the Company and
thereby substantially control the affairs and management of the Company and all
matters requiring stockholder approval. Such control could adversely affect the
market price of the Common Stock.
CERTAIN ANTI-TAKEOVER PROVISIONS. Certain provisions of the Company's
Restated Certificate of Incorporation, Bylaws and Delaware law may make a change
in control of the Company more difficult to effect, even if a change in control
were in the stockholders' interest. These provisions include certain
supermajority vote requirements contained in the Company's Restated Certificate
of Incorporation and Bylaws. In addition, the Company's Restated Certificate of
Incorporation allows the Board of Directors to determine the terms of preferred
stock which may be issued by the Company without approval of the holders of the
Common Stock, and thereby enables the Board of Directors to prevent changes in
the management and control of the Company. The Board of Directors is divided
into three classes of directors elected for staggered three-year terms. Such
staggered terms may affect the ability of the holders of the Common Stock to
effect a change in control of the Company.
POSSIBLE VOLATILITY OF STOCK PRICE. The market price of the Common Stock
could be subject to significant fluctuations in response to variations in
financial results or announcements of material events by the Company or its
competitors. Regulatory changes, developments in the health care industry or
changes in general conditions in the economy or the financial markets could also
adversely affect the market price of the Common Stock.
SELLING STOCKHOLDERS
The Company has issued unregistered shares of Common Stock in connection with
its acquisition of the assets or stock of orthodontic entities. The Selling
Stockholders may determine to reoffer such shares to the public. The identity of
the Selling Stockholders, the number of shares of Common Stock to be sold by the
Selling Stockholders and the price per share of Common Stock will be determined
at the time of the consummation of the particular transaction. Specific
information regarding the transaction, the identity of the Selling Stockholders
and the number of shares of Common Stock to be resold will be provided at the
time of such transaction by means of a Supplement or a Post-Effective Amendment
hereto, as applicable.
The sale of such shares of Common Stock by the Selling Stockholders may be
effected from time to time in transactions on the Nasdaq Stock Market National
Market, in negotiated transactions, through the writing of options on such
shares, or through a combination of such methods of sale, at prices prevailing
at the time of sale, or at negotiated prices. The Selling Stockholders may
effect such transactions by selling such shares to or through broker-dealers,
and such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders and/or the purchasers
of such shares for which such broker-dealers may act as agent or to whom they
sell as principal, or both (which compensation as to a particular broker-dealer
may be in excess of customary commissions).
6
<PAGE>
The Selling Stockholders and any broker-dealers who act in connection with
the sale of such shares of Common Stock hereunder may be deemed to be an
"underwriter" within the meaning of Section 2(11) of the Securities Act, and any
commissions received by them and profit on any resale of such shares as
principal may be deemed to be underwriting discounts and commissions under the
Securities Act.
The Company intends to make available public information concerning itself in
compliance with the Securities Act and the regulations thereunder, and
accordingly, Rule 144 or Rule 145 under the Securities Act may be available for
use by holders of Common Stock to effect transfers of such securities, subject
to compliance with the remaining provisions of such rules.
7
<PAGE>
LEGAL MATTERS
The validity of the shares of the Common Stock offered hereby will be passed
upon for the Company by Waller Lansden Dortch & Davis, Nashville, Tennessee.
EXPERTS
The consolidated financial statements of Orthodontic Centers of America, Inc.
appearing in Orthodontic Centers of America Inc.'s Annual Report (Form 10-K) for
the year ended December 31, 1995, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses of this offering, which are to be paid by the Company, are
estimated as follows:
Commission Registration Fee........................... $11,552
State Qualification Expenses (including legal fees)... 1,000
Legal Fees and Expenses............................... 10,000
Auditors' Fees and Expenses........................... 10,000
Transfer Agent and Registrar Fees..................... 2,000
Miscellaneous Expenses................................ 4,500
_______
Total............................................... $39,052
=======
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
RESTATED CERTIFICATE OF INCORPORATION
The Company's Restated Certificate of Incorporation provides that the
Company will indemnify, and upon request advance expenses to, any person (or his
estate) who was or is a party to any legal proceeding because he is or was a
director, officer or employee of the Company, or is or was serving at the
request of the Company as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, or other entity, against any
liability incurred in that proceeding to the full extent permitted by the
Delaware General Corporation Law.
DELAWARE GENERAL CORPORATION LAW
Section 145 of the Delaware General Corporation Law grants corporations the
power to indemnify their directors, officers, employees and agents in accordance
with the provisions thereof.
INSURANCE
The Company maintains and pays premiums on an insurance policy on behalf of
its officers and directors against liability asserted against or incurred by
such persons in or arising from their capacity as such.
COMMISSION POLICY ON INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ----------- -----------------------------------------------------------------------------------
<C> <C> <S>
3.1 -- Bylaws of the Registrant (1)
3.2 -- Restated Certificate of Incorporation of the Registrant (1)
4.1 -- Specimen Stock Certificate (1)
5.1 -- Opinion of Waller Lansden Dortch & Davis*
9.1 -- Voting Trust Agreement, dated as of October 18, 1994, between John R. Anderson,
D.D.S., P.A., Neal A. Stubbs, D.D.S., P.A., and Gasper Lazzara, Jr., D.D.S. (1)
10.1 -- Form of Service Agreement (confidential treatment granted as to a portion of the
agreement) (1)
10.2 -- Form of Management Agreement (confidential treatment granted as to a portion of the
agreement) (1)
10.3 -- Form of Consulting Agreement (1)
10.4 -- Employment Agreement between the Registrant and Gasper Lazzara, Jr., D.D.S. (1)
10.5 -- Employment Agreement between the Registrant and Bartholomew F. Palmisano, Sr. (1)
10.6 -- Orthodontic Centers of America, Inc. 1994 Incentive Stock Plan (1)
10.7 -- Orthodontic Centers of America, Inc. 1994 NonQualified Stock Option Plan for
Non-Employee Directors (1)
10.8 -- First Union National Bank Defined Contribution Master Plan and Trust Agreement, and
Adoption Agreement relating thereto, between the Registrant and First Union National
Bank (1)
10.9 -- Settlement and Purchase Agreement, dated as of October 10, 1994, between John R.
Anderson, D.D.S., P.A. and Neal A. Stubbs, D.D.S., P.A., and Gasper Lazzara, Jr.,
D.D.S., P.A., Gasper Lazzara, Jr., D.D.S., Bartholomew F. Palmisano, Sr., Palmisano &
Associates, A Corporation of Certified Public Accountants, Orthodontic Centers of
America, Inc., a Florida corporation, Orthodontic Centers of America, Inc., a
Louisiana corporation, and the Registrant (1)
10.10 -- Non-Assignable Promissory Note, dated October 18, 1994, by the Registrant in favor of
John R. Anderson, D.D.S., P.A. (1)
10.11 -- Non-Assignable Promissory Note, dated October 18, 1994, by the Registrant in favor of
Neal A. Stubbs, D.D.S., P.A. (1)
10.12 -- Security Agreement, dated October 18, 1994, between John R. Anderson, D.D.S., P.A.
and Neal A. Stubbs, D.D.S., P.A. (1)
10.13 -- Stock Escrow and Pledge Agreement, dated October 18, 1994, between Gasper Lazzara,
Jr., D.D.S. and Bartholomew F. Palmisano, Sr., and John R. Anderson, D.D.S., P.A.,
and Neal A. Stubbs, D.D.S., P.A. (1)
10.14 -- Stock Escrow and Pledge Agreement, dated October 18, 1994, between John R. Anderson,
D.D.S., John R. Anderson, D.D.S., P.A., Neal A. Stubbs, D.D.S., Neal A. Stubbs,
D.D.S., P.A. and Gasper Lazzara, Jr., D.D.S., the Registrant and the Escrow Agent (1)
10.15 -- Revolving Credit and Security Agreement, dated October 18, 1994, between the
Registrant and First Union National Bank of Florida (1)
10.16 -- Letter of Credit issued to the Registrant by First Union National Bank of Florida
with John R. Anderson, D.D.S., P.A., as beneficiary (1)
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <C> <S>
10.17 -- Letter of Credit issued to the Registrant by First Union National Bank of Florida
with Neal A. Stubbs, D.D.S., P.A., as beneficiary (1)
10.18 -- Form of Exchange Agreement (1)
10.19 -- Form of Dissolution Agreement (1)
10.20 -- Form of Redemption Agreement (1)
10.21 -- Agreement, dated as of October 18, 1994, between the Registrant and Dr. Gasper
Lazzara, Jr. and Bartholomew F. Palmisano, Sr. (1)
10.22 -- Exchange Agreement, dated as of October 18, 1994, between each of the partners of
Anderson, Lazzara, and Stubbs Partnership and the Registrant (1)
10.23 -- 1995 Restricted Stock Option Plan (2)
10.24 -- Form of Employment Agreement between Affiliated Orthodontic Entities and Affiliated
Orthodontists (3)
10.25 -- 1996 Employee Stock Purchase Plan (4)
21.1 -- List of subsidiaries of the Registrant (4)
23.1 -- Consent of Ernst & Young LLP*
23.2 -- Consent of Waller Lansden Dortch & Davis (included in Exhibit 5.1)*
24.1 -- Power of Attorney (included on page II-5)*
- ---------------
</TABLE>
(1) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-1, Registration Statement No. 33-85326.
(2) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1994.
(3) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-1, Registration No. 33-52140.
(4) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995.
* Filed herewith.
(b) Financial Statement Schedules
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to respond to requests for
information that are incorporated by reference into the Prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in the
Registration Statement when it became effective.
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
II-3
<PAGE>
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 against the
Registrant 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of Prospectus 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.
The undersigned Registrant hereby undertakes:
(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 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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 the 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.
II-4
<PAGE>
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 the 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Ponte Vedra Beach, State
of Florida, on June 13, 1996.
ORTHODONTIC CENTERS OF AMERICA, INC.
By: /s/ Gasper Lazzara, Jr., D.D.S.
-------------------------------------
Gasper Lazzara, Jr., D.D.S.
Chairman, President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Dr. Gasper Lazzara, Jr. and Bartholomew F. Palmisano,
Sr., his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments and amendments thereto) and any
registration statement relating to the same offering as this Registration
Statement that is effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, and to file the same, with all exhibits thereto, and
other documents in connection therewith with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and 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
attorney-in-fact and agent, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------- ----- ------
<S> <C> <C>
/s/ GASPER LAZZARA, JR., D.D.S. Chairman, President, June 13, 1996
- ----------------------------------- Chief Executive Officer
Gasper Lazzara, Jr., D.D.S and Director (Principal
Executive Officer)
/s/ BARTHOLOMEW F. PALMISANO, SR. Chief Financial Officer, June 13, 1996
- ----------------------------------- Senior Vice President,
Bartholomew F. Palmisano, Sr. Secretary and Treasurer
(Principal Financial and
Accounting Officer)
/s/ MICHAEL C. JOHNSEN Vice President of Operations June 13, 1996
- ----------------------------------- and Director
Michael C. Johnsen
/s/ EDWARD J. WALTERS, JR. Director June 13, 1996
- -----------------------------------
Edward J. Walters, Jr.
/s/ GORDON TUNSTALL Director June 13, 1996
- -----------------------------------
Gordon Tunstall
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBITS NUMBER
- ----------- ----------------------- -------
<C> <S> <C>
3.1 -- Bylaws of the Registrant (1)
3.2 -- Restated Certificate of Incorporation of the Registrant (1)
4.1 -- Specimen Stock Certificate (1)
5.1 -- Opinion of Waller Lansden Dortch & Davis*
9.1 -- Voting Trust Agreement, dated as of October 18, 1994, between John R. Anderson,
D.D.S., P.A., Neal A. Stubbs, D.D.S., P.A., and Gasper Lazzara, Jr., D.D.S. (1)
10.1 -- Form of Service Agreement (confidential treatment granted as to a portion of the
agreement) (1)
10.2 -- Form of Management Agreement (confidential treatment granted as to a portion of the
agreement) (1)
10.3 -- Form of Consulting Agreement (1)
10.4 -- Employment Agreement between the Registrant and Gasper Lazzara, Jr., D.D.S. (1)
10.5 -- Employment Agreement between the Registrant and Bartholomew F. Palmisano, Sr. (1)
10.6 -- Orthodontic Centers of America, Inc. 1994 Incentive Stock Plan (1)
10.7 -- Orthodontic Centers of America, Inc. 1994 NonQualified Stock Option Plan for
Non-Employee Directors (1)
10.8 -- First Union National Bank Defined Contribution Master Plan and Trust Agreement, and
Adoption Agreement relating thereto, between the Registrant and First Union National
Bank (1)
10.9 -- Settlement and Purchase Agreement, dated as of October 10, 1994, between John R.
Anderson, D.D.S., P.A. and Neal A. Stubbs, D.D.S., P.A., and Gasper Lazzara, Jr.,
D.D.S., P.A., Gasper Lazzara, Jr., D.D.S., Bartholomew F. Palmisano, Sr., Palmisano &
Associates, A Corporation of Certified Public Accountants, Orthodontic Centers of
America, Inc., a Florida corporation, Orthodontic Centers of America, Inc., a
Louisiana corporation, and the Registrant (1)
10.10 -- Non-Assignable Promissory Note, dated October 18, 1994, by the Registrant in favor of
John R. Anderson, D.D.S., P.A. (1)
10.11 -- Non-Assignable Promissory Note, dated October 18, 1994, by the Registrant in favor of
Neal A. Stubbs, D.D.S., P.A. (1)
10.12 -- Security Agreement, dated October 18, 1994, between John R. Anderson, D.D.S., P.A.
and Neal A. Stubbs, D.D.S., P.A. (1)
10.13 -- Stock Escrow and Pledge Agreement, dated October 18, 1994, between Gasper Lazzara,
Jr., D.D.S. and Bartholomew F. Palmisano, Sr., and John R. Anderson, D.D.S., P.A.,
and Neal A. Stubbs, D.D.S., P.A. (1)
10.14 -- Stock Escrow and Pledge Agreement, dated October 18, 1994, between John R. Anderson,
D.D.S., John R. Anderson, D.D.S., P.A., Neal A. Stubbs, D.D.S., Neal A. Stubbs,
D.D.S., P.A. and Gasper Lazzara, Jr., D.D.S., the Registrant and the Escrow Agent (1)
10.15 -- Revolving Credit and Security Agreement, dated October 18, 1994, between the
Registrant and First Union National Bank of Florida (1)
10.16 -- Letter of Credit issued to the Registrant by First Union National Bank of Florida
with John R. Anderson, D.D.S., P.A., as beneficiary (1)
10.17 -- Letter of Credit issued to the Registrant by First Union National Bank of Florida
with Neal A. Stubbs, D.D.S., P.A., as beneficiary (1)
10.18 -- Form of Exchange Agreement (1)
10.19 -- Form of Dissolution Agreement (1)
10.20 -- Form of Redemption Agreement (1)
</TABLE>
<PAGE>
<TABLE>
<C> <S> <C>
10.21 -- Agreement, dated as of October 18, 1994, between the Registrant and Dr. Gasper
Lazzara, Jr. and Bartholomew F. Palmisano, Sr. (1)
10.22 -- Exchange Agreement, dated as of October 18, 1994, between each of the partners of
Anderson, Lazzara, and Stubbs Partnership and the Registrant (1)
10.23 -- 1995 Restricted Stock Option Plan (2)
10.24 -- Form of Employment Agreement between Affiliated Orthodontic Entities and Affiliated
Orthodontists (3)
10.25 -- 1996 Employee Stock Purchase Plan (4)
21.1 -- List of subsidiaries of the Registrant (4)
23.1 -- Consent of Ernst & Young LLP*
23.2 -- Consent of Waller Lansden Dortch & Davis (included in Exhibit 5.1)*
24.1 -- Power of Attorney (included on page II-5)*
</TABLE>
- ---------------
(1) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-1, Registration Statement No. 33-85326.
(2) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1994.
(3) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-1, Registration No. 33-52140.
(4) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995.
* Filed herewith.
<PAGE>
EXHIBIT 5.1
[WALLER LANSDEN DORTCH & DAVIS LETTERHEAD APPEARS HERE]
June 13, 1996
VIA EDGAR
- ---------
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Orthodontic Centers of America, Inc.
Registration Statement on Form S-4
Ladies and Gentlemen:
We are acting as counsel to Orthodontic Centers of America, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933 (the "Act") of an aggregate of 1,000,000 shares of the
Company's Common Stock, $.01 par value per share (the "Shares"), pursuant to a
Registration Statement on Form S-4 (the "Registration Statement"). We have
examined and relied upon such records, documents and other instruments as in our
judgment are necessary and appropriate in order to express the opinion
hereinafter set forth, and have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certified or
photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares, when issued
and delivered in the manner and on the terms described in the Registration
Statement (after the Registration Statement is declared effective), will be duly
authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the prospectus included in the Registration
Statement.
Very truly yours,
WALLER LANSDEN DORTCH & DAVIS
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of Orthodontic Centers
of America, Inc. for the registration of 1,000,000 shares of its common stock
and to the incorporation by reference therein of our report dated February 16,
1996, with respect to the consolidated financial statements of Orthodontic
Centers of America, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New Orleans, Louisiana
June 11, 1996
