Apple Orthodontix Inc – ‘S-8’ on 10/16/97

As of:  Thursday, 10/16/97   ·   Effective:  10/16/97   ·   Accession #:  890566-97-2213   ·   File #:  333-38077

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Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan   —   Form S-8
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-8         Registration of Securities to be Offered to           10     43K 
                          Employees Pursuant to an Employee                      
                          Benefit Plan                                           
 2: EX-5.1      Opinion re: Legality                                   2      8K 
 3: EX-23.1     Consent of Experts or Counsel                          1      4K 
 4: EX-99.1     Miscellaneous Exhibit                                 16     65K 

S-8   —   Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan
Document Table of Contents

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 As filed with the Securities and Exchange Commission on October 16, 1997.

                                                   Registration No. 333-

SECURITIES AND EXCHANGE COMMISSION  
WASHINGTON, D.C. 20549  

FORM S-8  

REGISTRATION STATEMENT UNDER THE  
SECURITIES ACT OF 1933  

APPLE ORTHODONTIX, INC. 
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)  

DELAWARE                               74-2795193 
(STATE OR OTHER JURISDICTION                  (I.R.S. EMPLOYER        
OF INCORPORATION OR ORGANIZATION)            IDENTIFICATION NUMBER)       
APPLE ORTHODONTIX, INC.                                         
2777 ALLEN PARKWAY, SUITE 700                                         
HOUSTON, TEXAS                               77019      
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)              (ZIP CODE)                

APPLE ORTHODONTIX, INC. 
1996 STOCK COMPENSATION PLAN  
(FULL TITLE OF THE PLAN)  

MICHAEL W. HARLAN 
APPLE ORTHODONTIX, INC. 
2777 ALLEN PARKWAY, SUITE 700 
HOUSTON, TEXAS  
(713) 964-6882  
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT OF SERVICE) 

--------------------------- 

COPIES TO:  

Richard S. Roth 
Jackson Walker L.L.P. 
1100 Louisiana, Suite 4200  
Houston, Texas  77002 

APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES  
PURSUANT TO THE PLAN: 

From time to time after this Registration Statement becomes effective.  

CALCULATION OF REGISTRATION FEE 

                                                        [Enlarge/Download Table]

   Title of                     Proposed Maximum     Proposed Maximum                     
Securities to be  Amount to be   Offering Price Per  Aggregate Offering     Amount of     
  Registered       Registered        Share(1)            Price (1)       Registration Fee 
------------------------------------------------------------------------------------------
                                                                                          
  Class A                                                                                 
Common Stock,                                                                             
$.001 par value  980,000 shares      $14.75             $14,455,000           $4,381      
------------------------------------------------------------------------------------------

(1) Estimated solely for the purpose of calculating the registration fee        
pursuant to Rule 457(h)(1).                                             

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PART II 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT  

ITEM 3.  INCORPORATION OF DOCUMENTS BY REFERENCE.                               

The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by Apple Orthodontix, Inc. (the          
"Company"), are incorporated herein by reference and made a part hereof: (i)    
Prospectus dated May 22, 1997, filed with the Commission pursuant to Rule 424(b)
on May 23, 1997; (ii) the Quarterly Reports on Form 10-Q for the quarterly      
periods ended March 31 and June 30, 1997; and (iii) Registration Statement on   
Form 8-A (No. 1-12977), effective as of May 14, 1997, and any amendments filed  
thereto.                                                                        

  All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") subsequent
to the date of this Registration Statement and prior to the filing of a         
post-effective amendment that indicates that all securities offered have been   
sold or that deregisters all securities then remaining unsold, shall be deemed  
to be incorporated herein by reference and to be a part hereof from the date of 
filing of such documents.                                                       

Any statement contained in a document incorporated or deemed to be    
incorporated by reference herein shall be deemed to be modified or superseded   
for purposes of this Registration Statement to the extent that a statement      
contained herein or in any other 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 Registration  
Statement.                                                                      

ITEM 4.  DESCRIPTION OF SECURITIES.                                             

Not applicable.                                                       

ITEM 5.  INTERESTS OF NAMED EXPERTS AND COUNSEL.                                

Not applicable.                                                       

ITEM 6.  INDEMNIFICATION OF DIRECTORS AND OFFICERS.                             

DELAWARE GENERAL CORPORATION LAW                                                

     Section 145(a) of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a corporation may indemnify any person who was or is a    
party or is threatened to be made a party to any threatened, pending or         
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by   
reason of the fact that he is or was a director, officer, employee or agent of  
the corporation, or is or was serving at the request of the corporation as a    
director, officer, employee or agent of another corporation, partnership, joint 
venture, trust or other enterprise, against expenses (including attorneys'      
fees), judgements, fines and amounts paid in settlement actually and reasonably 
incurred                                                                        

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by him in connection with such action, suit or proceeding if he acted in good   
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or       
proceeding, had no reasonable cause to believe his conduct was unlawful. The    
termination of any action, suit or proceeding by judgment, order, settlement,   
conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of  
itself, create a presumption that the person did not act in good faith and in a 
manner which he reasonably believed to be in or not opposed to the best         
interests of the corporation, and, with respect to any criminal action or       
proceeding, had reasonable cause to believe that his conduct was unlawful.      

Section 145(b) of the DGCL states that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any         
threatened, pending or completed action or suit by or in the right of the       
corporation to procure a judgment in its favor by reason of the fact that he is 
or was a director, officer, employee or agent of the corporation, or is or was  
serving at the request or agent of another corporation, partnership, joint      
venture, trust or other enterprise against expenses (including attorneys' fees) 
actually and reasonably incurred by him in connection with the defense or       
settlement of such action or suit if he acted in good faith and in a manner he  
reasonably believed to be in or not opposed to the best interests of the        
corporation and except that no indemnification shall be made in respect of any  
claim, issue or matter as to which such person shall have been adjudged to be   
liable to the corporation unless and only to the extent that the Court of       
Chancery or the court in which such action or suit was brought shall determine  
upon application that, despite the adjudication of liability but in view 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.                                                              

 Section 145(c) of the DGCL provides that to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in           
subsections (a) and (b) of Section 145, or in defense of any claim, issue or    
matter therein, he shall be indemnified against expenses (including attorneys'  
fees) actually and reasonably incurred by him in connection therewith.          

Section 145(d) of the DGCL states that any indemnification under      
subsections (a) and (b) of Section 145 (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination 
that indemnification of the director, officer, employee or agent is proper in   
the circumstances because he has met the applicable standard of conduct set     
forth in subsections (a) and (b). Such determination shall be made (1) by the   
board of directors by a majority vote of a quorum consisting of directors who   
were not parties to such action, suit or proceeding, or (2) if such a quorum is 
not obtainable, or, even if obtainable, a quorum of disinterested directors so  
directs, by independent legal counsel in a written opinion, or (3) by the       
stockholders.                                                                   

 Section 145(e) of the DGCL provides that expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,      
administrative or investigative action, suit or proceeding may be paid by the   
corporation in advance of the final disposition of such action, suit or         
proceeding upon receipt of an undertaking by or on behalf of such director or   
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the                                               

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corporation as authorized in Section 145. Such expenses (including attorneys'   
fees) incurred by other employees and agents may be so paid upon such terms and 
conditions, if any, as the board of directors deems appropriate.                

    Section 145(f) of the DGCL states that the indemnification and advancement
of expenses provided by, or granted pursuant to, the other subsections of       
Section 145 shall not be deemed exclusive of any other rights to which those    
seeking indemnification or advancement of expenses may be entitled under any    
bylaw, agreement, vote of stockholders or disinterested directors or otherwise, 
both as to action in his official capacity and as to action in another capacity 
while holding such office.                                                      

     Section 145(g) of the DGCL provides that a corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a      
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of     
another corporation, partnership, joint venture, trust or other enterprise,     
against any liability asserted against him and incurred by him in any such      
capacity, or arising out of his status as such, whether or not the corporation  
would have the power to indemnify him against such liability under the          
provisions of Section 145.                                                      

    Section 145(j) of the DGCL states that the indemnification and advancement
of expenses provided by, or granted pursuant to, Section 145 shall, unless      
otherwise provided when authorized or ratified, continue as to a person who has 
ceased to be a director, officer, employee or agent, and shall inure to the     
benefit of the heirs, executors and administrators of such a person.            

CERTIFICATE OF INCORPORATION                                                    

  The Restated Certificate of Incorporation of the Company provides that a
director of the Company shall not be personally liable to the Company or its    
stockholders for monetary damages for breach of fiduciary duty as a director,   
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or    
which involve intentional misconduct or a knowing violation of law, (iii) under 
Section 174 of the DGCL or (iv) for any transaction from which the director     
derived an improper personal benefit. If the DGCL is amended to authorize the   
further elimination or limitation of the liability of directors, then the       
liability of a director of the Company, in addition to the limitation on        
personal liability described above, shall be limited to the fullest extent      
permitted by the amended DGCL. Further, any repeal or modification of such      
provision of the Restated Certificate of Incorporation by the stockholders of   
the Company shall be prospective only, and shall not adversely affect any       
limitation on the personal liability of a director of the Company existing at   
the time of such repeal or modification.                                        

BYLAWS                                                                          

    The Bylaws of the Company provide that the Company will indemnify and hold
harmless any director or officer of the Company to the fullest extent permitted 
by applicable law, as in effect as of the date of the adoption of the Bylaws or 
to such greater extent as applicable law may thereafter                         

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permit, from and against all losses, liabilities, claims, damages, judgments,   
penalties, fines, amounts paid in settlement and expenses (including attorneys' 
fees) whatsoever arising out of any event or occurrence related to the fact that
such person is or was a director or officer of the Company and further provide  
that the Company may, but is not required to, indemnify and hold harmless any   
employee or agent of the Company or a director, officer, employee or agent of   
any other corporation, partnership, joint venture, trust, employee benefit plan 
or other enterprise who is or was serving in such capacity at the written       
request of the Company; provided, however, that the Company is only required to 
indemnify persons serving as directors, officers, employees or agents of the    
Company for the expenses incurred in a proceeding if such person is a party to  
and is successful, on the merits or otherwise, in such proceeding, or if        
unsuccessful in the proceeding, but successful as to a matter in such           
proceeding, the expenses attributable to such matter and provided further that  
the Company may, but is not required to, indemnify such persons who are serving 
as a director, officer, employee or agent of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise at the written  
request of the Company for the expenses incurred in a proceeding if such person 
is a party to and is successful, on the merits or otherwise, in such proceeding.
The Bylaws further provide that, in the event of any threatened, or pending     
action, suit or proceeding in which any of the persons referred to above is a   
party or is involved and that may give rise to a right of indemnification under 
the Bylaws, following written request by such person, the Company will promptly 
pay to such person amounts to cover expenses reasonably incurred by such person 
in such proceeding in advance of its final disposition upon the receipt by the  
Company of (i) a written undertaking executed by or on behalf of such person    
providing that such person will repay the advance if it is ultimately determined
that such person is not entitled to be indemnified by the Company as provided in
the Bylaws and (ii) satisfactory evidence as to the amount of such expenses.    

UNDERWRITING AGREEMENT                                                          

The Underwriting Agreement relating to the Company's initial public   
offering provides for the indemnification of the directors and officers of the  
Company in certain circumstances.                                               

TRICAP PARTNERS, L.L.C. AGREEMENT                                               

     The financial advisory consulting agreement in which the Company and TriCap
Partners, L.L.C. are parties provides for the indemnification of the directors  
and officers of the Company in certain circumstances.                           

INSURANCE                                                                       

    The Company intends to maintain liability insurance for the benefit of its
directors and officers.                                                         

     Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers or       
controlling persons of the Company pursuant to the foregoing provisions, the    
Company has been advised that in the opinion of the Securities and Exchange     
Commission such indemnification is against public policy as expressed in the    
Securities Act, as amended, and is therefore unenforceable.                     

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ITEM 7.  EXEMPTION FROM REGISTRATION CLAIMED.                                   

Not applicable.                                                       

ITEM 8.     EXHIBITS.                                                           

 The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by      
reference.                                                                      

EXHIBIT NO.             DESCRIPTION OF EXHIBIT                          

4.1    Restated Certificate of Incorporation.(1)                      

4.2    Bylaws.(1)                                                     

4.3    Form of certificate evidencing ownership of the Common Stock of
Apple Orthodontix, Inc.(1)                              

4.4    Form of Registration Rights Agreement.(1)                      

     4.5    Registration Rights Agreement Among Apple Orthodontix, Inc., John G.
Vondrak, D.D.S. and TriCap Funding I, L.L.C.(1)         

  4.6    Registration Rights Agreement between TriCap Partners, L.L.C. and
Apple Orthodontix, Inc.(1)                              

5.1    Opinion of H. Steven Walton (2)                                

23.1    Consent of Arthur Andersen, L.L.P.(2)                           

23.2    Consent of H. Steven Walton (contained in Exhibit 5.1)          

24.1    Power of Attorney. (contained on the signature page of this     
Registration Statement)                                 

99.1    Apple Orthodontix, Inc. 1996 Stock Compensation Plan.(2)        

(1)   Previously filed as an exhibit to the Company's registration statement on 
Form S-1 (No. 333- 22785), and incorporated herein by reference.    

(2)   Filed herewith.                                                           

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ITEM   9.   UNDERTAKINGS.                                                       

(a)   The Company 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 this Registration
    Statement or any material change to such information in this
Registration Statement;                                 

          PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
   amendment by those paragraphs is contained in periodic reports filed by
   the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference 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) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report  
pursuant to Section 13(a) or Section 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                                                      

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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 Company pursuant to the foregoing provisions, or otherwise, the Company  
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 Company of expenses incurred or paid 
by a director, officer or controlling person of the Company 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   
Company 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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 POWER OF ATTORNEY

     Each person whose signature appears below authorizes H. Steven Walton and
Michael W. Harlan, and each of them, each of whom may act without joinder of the
other, to execute in the name of each such person who is then an officer or     
director of the Registrant, and to file any amendments to this Registration     
Statement necessary or advisable to enable the Registrant to comply with the    
Securities Act of 1933, as amended, and any rules, regulations and requirements 
of the Securities and Exchange Commission, in respect thereof, in connection    
with the registration of the securities that are the subject of this            
Registration Statement, which amendments may make such changes to such          
Registration Statement as such attorney may deem appropriate.                   

SIGNATURE PAGE  

   Pursuant to the requirements of the Securities Act of 1933, as amended,
Apple Orthodontix, Inc. 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 Houston, State of Texas, on October ___, 1997.  

                                             APPLE ORTHODONTIX, INC.

                                               By:  /S/ JOHN G. VONDRAK,D.D.S.
                                                         John G. Vondrak, D.D.S.
                                                   Chairman of the Board
                                                     and Chief Executive Officer

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   Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the     
capacities indicated and on October __, 1997.                                   

SIGNATURES                           TITLE                    

/s/ John G. Vondrak, D.D.S.         Chairman of the Board and                   
John G. Vondrak, D.D.S.         Chief Executive Officer                 
                     (Principal Executive Officer)

/s/ Michael W. Harlan               Vice President and Chief                  
Michael W. Harlan                  Financial Officer                  
                                    (Principal Financial and Accounting Officer)

/s/ W. Daniel Cook                           Director                           
W. Daniel Cook                                                          

/s/ William W. Sherrill                      Director                           
William W. Sherrill                                                     

/s/ Rod L. Crosby, Jr.                       Director                           
Rod L. Crosby, Jr.                                                      

/s/ Clyde C. Waddell, Jr.                    Director                           
Clyde C. Waddell, Jr.                                                   

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Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘S-8’ Filing		Date		First		Last			Other Filings
		10/17/97
Filed on / Effective on:		10/16/97		1
		6/30/97		2					10-Q
		5/23/97		2					424B4
		5/22/97		2
		5/14/97		2					S-1/A
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