<PAGE>
As filed with the Securities and Exchange Commission on August 27, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
____________________
ORTHODONTIC CENTERS OF AMERICA, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 72-1278948
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
5000 Sawgrass Village Circle, Suite 25
Ponte Vedra Beach, Florida 32082
(Address of Principal Executive Offices)
____________________
Orthodontic Centers of America, Inc.
401(k) Profit Sharing Plan
(Full Title of the Plan)
Gasper Lazzara, Jr., D.D.S. Copies of All Communications to:
Co-Chief Executive Officer J. Chase Cole, Esq.
Orthodontic Centers of America, Inc. Waller Lansden Dortch & Davis,
5000 Sawgrass Village Circle, Suite 25 A Professional Limited Liability Company
Ponte Vedra Beach, Florida 32082 511 Union Street, Suite 2100
(Name and Address of Agent For Service) Nashville, Tennessee 37219-1760
(615) 244-6380
(904) 280-4500
(Telephone Number, Including Area Code,
of Agent For Service)
<TABLE>
<CAPTION>
===================================================================================================================================
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 75,000 $15.96875 $1,197,656 $333
$.01 par value shares
===================================================================================================================================
</TABLE>
- -------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement covers an indeterminate amount of interests in the
401(k) Profit Sharing Plan to be offered or sold pursuant to the employee
benefit plan described herein.
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests in
the 401(k) Profit Sharing Plan to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Estimated pursuant to Rule 457(c) solely for purposes of calculating the
amount of the registration fee, based upon the average of the high and low
prices reported on August 25, 1999, as reported on the New York Stock
Exchange.
<PAGE>
I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.(1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.(1)
- -----------
(1) Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
the Note to Part I of Form S-8.
I-1
<PAGE>
II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "SEC") by Orthodontic Centers of America, Inc. ("OCA") and the
Orthodontic Centers of America, Inc. 401(k) Profit Sharing Plan (the "Plan") are
incorporated herein by reference as of the dates thereof:
(a) OCA's Annual Report on Form 10-K for the year ended December 31,
1998;
(b) OCA's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
(c) OCA's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999;
(d) The description of OCA's Common Stock contained in OCA's
Registration Statement on Form 8-A, filed on December 6, 1994; and
(e) The Plan's Annual Report on Form 11-K for the fiscal year ended
December 31, 1998.
In addition, all documents subsequently filed by OCA and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statements contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which is also incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) ARTICLE VII OF THE REGISTRANT'S RESTATED CERTIFICATE OF
INCORPORATION PROVIDES AS FOLLOWS:
The Corporation shall indemnify, and upon request shall advance
expenses to, in the manner and to the fullest extent permitted by law, any
officer or director (or the estate of any such person) who was or is a party to,
or is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of
the Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan (an "indemnitee"). The Corporation may, to the fullest
extent permitted by law, purchase and maintain insurance on behalf of any person
who is or was a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan against any liability which may be asserted against such
person. To the fullest extent permitted by law, the indemnification and
advances provided for herein shall include expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement. The indemnification
provided herein shall not be deemed to limit the right of the Corporation to
indemnify any other person for any such expenses (including attorneys' fees),
judgment, fines and amounts paid in settlement to the fullest extent permitted
by law, both as to action in his official capacity and as to action in another
capacity while holding such office.
(b) In addition to the foregoing provisions of the Restated
Certificate of Incorporation of OCA, Section 145 of the General Corporation Law
of the State of Delaware provides that a Delaware corporation may indemnify any
persons who are, or are threatened to be made, parties to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than any action by or in the right of
such corporation) by reason of the fact that such person was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal. A Delaware corporation may indemnify
any persons who are, or are threatened to be made, a party to any threatened,
pending or completed action or suit by or in the right of the corporation by
reason of the fact that such person was a director, officer, employee or agent
of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, provided such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests except that no indemnification
is permitted without judicial approval if the officer or director is adjudged to
be liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
(c) In addition, OCA maintains directors' and officers' liability
insurance under which OCA's directors and officers are insured against loss (as
defined in the policy) as a result of claims brought against them for their
wrongful acts in such capacities.
II-2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------ -----------------------
4.1 Orthodontic Centers of America, Inc. 401(k) Profit Sharing Plan/1/
5.1 Opinion of Waller Lansden Dortch & Davis, PLLC, regarding legality
(filed herewith)
5.2 Copy of the Internal Revenue Service determination letter stating that
the Plan is qualified under Section 401 of the Internal Revenue Code
(filed herewith)
23.1 Consent of Waller Lansden Dortch & Davis, PLLC (included in the
opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP (filed herewith)
24.1 Power of Attorney (included on page II-5)
- ---------------
/1/ Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-1, Registration Statement No. 33-85326.
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) 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 of 1933;
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(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 of 1933, 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) 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 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 SEC, such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, 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 Ponte Vedra Beach, State of Florida, on this
17th day of August, 1999.
ORTHODONTIC CENTERS OF AMERICA, INC.
By: Gasper Lazzara, Jr., D.D.S.
--------------------------------------
Gasper Lazarra, Jr., D.D.S.
Chairman of the Board, Co-Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Gasper Lazzara, Jr., D.D.S. and
Bartholomew F. Palmisano, Sr., his attorney-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any 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 Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents 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 each might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may 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>
Name Title(s) Date
----- --------- ------
<S> <C> <C>
Gasper Lazzara, Jr., D.D.S. Chairman of the Board, Co-Chief August 17, 1999
- --------------------------------------- Executive Officer, Director
Gasper Lazzara, Jr., D.D.S. (principal executive officer)
Bartholomew F. Palmisano, Sr. Co-Chief Executive Officer, August 17, 1999
- --------------------------------------- Treasurer, Director
Bartholomew F. Palmisano, Sr.
Bartholomew F. Palmisano, Jr. Chief Financial Officer, Secretary August 17, 1999
- --------------------------------------- (principal financial and accounting
Bartholomew F. Palmisano, Jr. officer)
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
Geoffrey L. Faux President, Director August 17, 1999
- ---------------------------------------
Geoffrey L. Faux
Michael C. Johnsen Chief Operating Officer, Director August 17, 1999
- ---------------------------------------
Michael C. Johnsen
Ashton J. Ryan, Jr. Director August 17, 1999
- ---------------------------------------
Ashton J. Ryan, Jr.
A Gordon Tunstall Director August 17, 1999
- ---------------------------------------
A Gordon Tunstall
Edward J. Walters, Jr. Director August 17, 1999
- ---------------------------------------
Edward J. Walters, Jr.
</TABLE>
II-6
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees or other persons who administer the employee benefit plan have duly
caused this Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Ponte Vedra Beach, State
of Florida, on the 17th day of August, 1999.
ORTHODONTIC CENTERS OF AMERICA, INC.
401(k) PROFIT SHARING PLAN
By: /s/ Brian D. Reynolds
----------------------------------------
First Union National Bank, the Trustee
II-7
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER
- ------
4.1 Orthodontic Centers of America, Inc. 401(k) Profit Sharing Plan/1/
5.1 Opinion of Waller Lansden Dortch & Davis, PLLC regarding legality
(filed herewith)
5.2 Copy of the Internal Revenue Service determination letter that the plan
is qualified under Section 401 of the Internal Revenue Code (filed
herewith)
23.1 Consent of Waller Lansden Dortch & Davis, PLLC (included in the opinion
filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP (filed herewith)
24.1 Power of Attorney (included on page II-5)
- -------------------
/1/ Incorporated by reference to exhibits filed with OCA's Registration
Statement on Form S-1, Registration Statement No. 33-85326.
<PAGE>
EXHIBIT 5.1
WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
Nashville City Center
511 Union Street, Suite 2100
Post Office Box 198966
Nashville, Tennessee 37219-8966
Facsimiles (615) 244-6380 809 South Main Street
(615) 244-6804 P. O. Box 1035
(615) 244-5686 Columbia, TN 38402-1035
(615) 388-6031
August 26, 1999
Orthodontic Centers of America, Inc.
5000 Sawgrass Village Circle, Suite 25
Ponte Vedra Beach, Florida 32082
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Orthodontic Centers of
America, Inc., a Delaware corporation (the "Company"), of up to 75,000 shares of
the Company's Common Stock, $.01 par value (the "Shares"), to be issued and sold
under the Company's 401(k) Profit Sharing Plan (the "Plan") and an indeterminate
amount of interests in the Plan to be issued to employees of the Company and its
affiliates who participate in the Plan.
We have examined the Company's Restated Certificate of Incorporation
and Bylaws, as amended to date, certain records of proceedings of the Company's
directors, the Plan and the Registration Statement. We have also examined and
relied upon such records, documents and other instruments as in our judgment are
necessary or appropriate in order to express the opinions hereinafter set forth.
Based upon such examination, we are of the opinion that the Shares,
when issued and delivered in the manner and on the terms described in the Plan,
will be duly authorized, 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/ Waller Lansden Dortch & Davis, PLLC
<PAGE>
EXHIBIT 5.2
INTERNAL REVENUE SERVICE Department of the Treasury
District Director SEQNR: 006874
Cincinnati Service Center Letter 835 (DO/CG)
P.O. Box 2508
Cincinnati, OH 45201
EMPLOYER IDENTIFICATION NUMBER:
72-1278948
Date: March 16, 1999 DLN:
17007013056019
PERSON TO CONTACT:
BEVERLY JOHNSON\ID #31088
ORTHODONTIC CENTERS OF AMERICA
3850 N. CAUSEWAY BLVD STE 990 CONTACT TELEPHONE NUMBER:
METAIRIE, LA 70002 (877) 829-5500
PLAN NAME:
ORTHODONTIC CENTERS OF AMERICA, INC.
401K PROFIT SHARING PLAN
PLAN NUMBER:
001
Dear Applicant:
We have made a favorable determination on your plan, identified above, based on
the information supplied. Please keep this letter in your permanent records.
Continued qualification of the plan under its present form will depend on its
effect in operation. (See section 1.401-1(b)(3) of the Income Tax Regulations.)
We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable determination
letter, points out some events that may affect the qualified status of your
employee retirement plan, and provides information on the reporting requirements
for your plan. It also describes some events that automatically nullify it. It
is very important that you read the publication.
This letter relates only to the status of your plan under the Internal Revenue
Code. It is not a determination regarding the effect of other federal or local
statutes.
This determination letter is applicable for the amendment(s) executed on
August 26, 1996.
This determination letter is applicable for the plan adopted on December 6,
1993.
<PAGE>
-2-
ORTHODONTIC CENTERS OF AMERICA
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This plan satisfies the nondiscriminatory current availability requirements of
section 1.401(a)(4)-4(b) of the regulations with respect to those benefits,
rights and features that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group consists of those
employees treated as currently benefitting for purposes of demonstrating that
the plan satisfies the minimum coverage requirements of section 410(b) of the
Code.
Except as otherwise specified in an opinion or notification letter regarding
this plan, this letter may not be relied upon with respect to whether the plan
satisfies the changes in the qualification requirements made by the Uruguay
Round Amendments Act (GATT) Pub. L. 103-465, the Taxpayer Relief Act of 1997
Pub. L. 105-34, and the changes in the qualifications requirements of the Small
Business Job Protection Act of 1996 Pub. L. 104-188 other than the requirements
of Code section 401(a)(26).
The information on the enclosed Publication 794 is an integral part of this
determination. Please be sure to read and keep it with this letter.
The requirement for employee benefits plans to file summary plan descriptions
(SPD) with the U.S. Department of Labor was eliminated effective August 5, 1997.
For more details, call 1-800-998-7542 for a free copy of the SPD card.
We have sent a copy of this letter to your representative as indicated in the
power of attorney.
If you have questions concerning this matter, please contact the person whose
name and telephone number are shown above.
Sincerely yours,
C. Ashley Bullard
District Director
Enclosures:
Publication 794
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the Orthodontic Centers of America, Inc. 401(k) Profit
Sharing Plan of our reports (a) dated March 22, 1999, with respect to the
consolidated financial statements of Orthodontic Centers of America, Inc.
included in its Annual Report (Form 10-K) and (b) dated June 29, 1999, with
respect to the financial statements and schedules of the Orthodontic Centers of
America, Inc. 401(k) Profit Sharing Plan included in the Plan's Annual Report
(Form 11-K), both for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
New Orleans, Louisiana
August 20, 1999
