<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 1997
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
- --------------------------------------------------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
JONES MEDICAL INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 43-1229854
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1945 Craig Road, St. Louis, MO 63146 (314) 576-6100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
DENNIS M. JONES
Jones Medical Industries, Inc.
1945 Craig Road
St. Louis, MO 63146
(314) 576-6100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies of communications to:
CHARLES E. H. LUEDDE, ESQ.
Greensfelder, Hemker & Gale, P.C.
10 South Broadway, Suite 2000
St. Louis, Missouri 63102
314-241-9090
-----------------------
Approximate date of commencement of proposed sale to the public: As
promptly as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please 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 registered additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of 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 earlier effective registration statement for
the same offering. [ ] _________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
------------------
CALCULATION OF REGISTRATION FEE
==============================================================================================================
Title of Each Amount Proposed Maximum Proposed Maximum Amount of
Class of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Unit (1) Offering Price Fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.04 par value 291,250 shares $27.875 $8,118,563.75 $2,460.18
==============================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(c) under the Securities Act of
1933, as amended, solely for purposes of calculation of the registration
fee. Based upon the average of the high and low sales prices as reported
by the Nasdaq National Market for March 13, 1997.
-------------------
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 Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
ORDER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
<PAGE> 3
SUBJECT TO COMPLETION, DATED MARCH 14, 1997
PROSPECTUS
291,250 SHARES
JONES MEDICAL INDUSTRIES, INC.
COMMON STOCK, $.04 PAR VALUE
This Prospectus relates to the offering by certain shareholders named
within (the "Selling Shareholders") of an aggregate of 291,250 shares (the
"Shares") of Common Stock, $.04 par value (the "Common Stock") of Jones Medical
Industries, Inc. (the "Company"). The Common Stock is traded in the
over-the-counter market and is quoted on the Nasdaq National Market System
("Nasdaq NMS") under the symbol JMED. The last reported sales price for the
Common Stock on March __, 1997, as reported by the Nasdaq NMS was ______.
The offering, sale and distribution of the Shares is expected to occur
from time to time following the date of this Prospectus and prior to December
31, 1997. See "Plan of Distribution." Proceeds from the offering, sale and
distribution of the Shares are expected to be received by or for the respective
accounts of the Selling Shareholders. The Company will not receive any portion
of the proceeds of the offering.
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER
CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE SELLING SHAREHOLDERS. NEITHER THE DELIVERY OF THE PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
-----------------
THE DATE OF THIS PROSPECTUS IS MARCH ___, 1997.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith, files
reports and other information with the Securities and Exchange Commission (the
"Commission").
The reports, proxy statements and other information filed by the Company
with the Commission can be inspected and copied at the Public Reference Room of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C., 20549
and at the commission's regional offices at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, Suite
1300, New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Common Stock of the Company is
traded on the Nasdaq National Market and such reports, proxy statements and
other information can also be inspected at the office of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Shares offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement, certain portions of which
have been omitted as permitted by the rules and regulations of the Commission.
Such additional information may be obtained from the Commission's principal
office in Washington, D.C. The Registration Statement, including the exhibits
thereto, and other reports, proxy statements and filings made by the Company
are also generally available pursuant to the Commission's electronic data
gathering, analysis and retrieval system known as "EDGAR."
Statements contained or incorporated by reference in this Prospectus as to
the contents of any contract or other document referred to herein or therein
are not necessarily complete, and in each such instance reference is made to
the copy of such contract or other document filed as an exhibit to the
Registration Statement or such other document, each such statement being
qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Registration Statement incorporates by reference certain documents
which are not presented herewith or delivered herewith. All documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act prior to 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 in this Registration Statement and to be a part hereof from the date
of filing of such documents.
The following documents, which have been filed by the Company with the
Commission pursuant to the 1934 Act, are hereby incorporated by reference in
this Registration Statement:
1. Company's Annual Report on Form 10-K for the year ended December 31,
1996;
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the Company's fiscal year ended
December 31, 1996; and
3. Description of the Company's Common Stock contained in the Company's
Proxy Statement dated April 15, 1991.
In addition to the foregoing documents, there is also incorporated herein
by reference any additional reports or proxy statements filed by the Company
under Sections 13, 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering. 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
2
<PAGE> 5
Statement to the extent that a statement contained herein, or in any other
subsequently filed document that also is or is deemed to be incorporated
herein, modified or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as modified or superseded, to
constitute a part of this Registration Statement.
Copies of any such documents, other than exhibits to such documents, are
available without charge upon request from Jones Medical Industries, Inc., 1945
Craig Road, St. Louis, Missouri 63146, Attention: Judith A. Jones, Secretary
(telephone: 314-576-6100).
-----------------
THE COMPANY
The Company is engaged in the manufacture, marketing and sale of
pharmaceuticals and nutritional supplements. The Company's principal executive
offices are located at 1945 Craig Road, St. Louis, Missouri 63146, and its
telephone number is (314) 576-6100.
THE SELLING SHAREHOLDERS
The Selling Shareholders are the respective beneficial owners named in the
table below. The table reflects the aggregate number of shares of Common Stock
held by each such beneficial owner, the number of shares included as part of
the Shares and the number of shares to be held by such beneficial owner upon
completion of the offering (assuming the sale of all Shares). The table also
reflects the percentage of the Common Stock currently owned and the percentage
to be owned upon completion of the offering (assuming the sale of all Shares)
based in each case upon the number of shares of Common Stock outstanding as of
the close of business on March 3, 1997. In accordance with regulations adopted
by the Commission, beneficial ownership is based upon a person's ability either
to direct the voting of shares or to make investment decisions relating to the
acquisition or sale of such shares and, as such, does not necessarily reflect
an interest in the income or value of such shares.
<TABLE>
<CAPTION>
Shares Shares to be Owned
Owned* After Sale
-------------------- -------------------
Shares
Name of Shareholder(1) number percent+ Offered number percent+
- ---------------------- ------ -------- ------- ------ --------
<S> <C> <C> <C> <C> <C>
Dale E. Eads 145,625 0.51 145,625 ----- -----
(address)
Perry N. Cole 145,625 0.51 145,625 ----- -----
(address)
All Selling Shareholders as a Group......... 291,250 1.02% 291,250 ----- -----
</TABLE>
Notes:
* As of March 3, 1997.
+ Based on 28,569,651 shares outstanding as of March 3, 1997.
In addition to the Selling Shareholders named above, the term Selling
Shareholders as used in this Prospectus shall include any donee, charitable or
otherwise, receiving shares as a gift from a Selling Shareholder named above.
The Shares being offered by the Selling Shareholders represent shares of
the Company's stock received by them in exchange for their ownership interests
in Abana Pharmaceuticals, Inc. ("Abana") which was acquired by the Company as
of December 31, 1996. Because Messrs. Eads and Cole owned more than a majority
of the outstanding
3
<PAGE> 6
common stock of Abana and took action by written consent to provide necessary
shareholder approval of the acquisition of Abana by the Company, such shares
were not eligible for inclusion in the Registration Statement on Form S-4 filed
by the Company in connection with the transaction. As part of the agreements
relating to the acquisition of Abana, the Company agreed to register such shares
for resale following the filing of the Company's Form 10-K for the year ended
December 31, 1996, and (subject to certain conditions) to keep such registration
in effect until such shares become eligible for sale under Rule 144 under the
Securities Act of 1933. Neither Mr. Eads nor Mr. Cole is employed by the
Company.
PLAN OF DISTRIBUTION
The Company is not participating in the offering, sale or distribution of
the Shares and will not receive any proceeds therefrom. The Company is advised
by the Selling Shareholders that the distribution of the Shares will occur as
follows.
The Shares may be sold from time to time by or for the accounts of the
Selling Shareholders. Such sales may be made in the Nasdaq NMS or otherwise,
at prices and at terms then prevailing or related to the then current market
price, or in negotiated transactions. The shares may be sold by one or more of
the following: (a) a block trade in which the broker-dealer so engaged will
attempt to sell the shares as agent for the Selling Shareholder but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker-dealer and resale by such broker-dealer
for its account pursuant to this Prospectus; (c) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; or (d)
private transactions. In effecting sales, broker-dealers engaged by the
Selling Shareholders may arrange for other broker-dealers to participate in the
resales.
The Selling Shareholders have severally advised the Company that as of the
date of this Prospectus each Selling Shareholder is acting independently with
respect to the nature, terms and timing of transactions constituting the offer,
distribution and sale of the Shares. However, as of the date of this
Prospectus, no Selling Shareholder has any commitment or contractual
arrangement with any broker dealer with respect to the Shares offered hereby.
In addition to sales of Shares to be made by the Selling Shareholders, a
Selling Shareholder may also make charitable or other gifts of Shares and the
recipient of such a gift may elect to sell such Shares as provided above. Any
such sale by a recipient of a gift from a Selling Shareholder may be deemed to
be in connection with the distribution contemplated hereby and must be
accompanied by the delivery of a Prospectus. In the event that a recipient of
Shares as a result of a gift from a Selling Shareholder does not complete a
sale of such Shares prior to December 31, 1997, the sale on behalf of such
recipient may be made under Rule 144 under the Securities Act of 1933 rather
than pursuant to the Registration Statement of which this Prospectus is a part.
In connection with distributions of the Shares or otherwise, the Selling
Shareholders have advised the Company that they may enter into hedging
transactions with broker-dealers. In connection with such transactions,
broker-dealers may engage in short sales of the Shares registered hereunder in
the course of hedging positions they assume with Selling Shareholders. The
Selling Shareholders may also borrow and sell shares of the Common Stock of the
Company and redeliver the Shares to close out such short positions. The
Selling Shareholders may also enter into option or other transactions with
broker-dealers which require the delivery to such broker-dealer of Shares
registered hereunder, which the broker-dealer may resell pursuant to this
Prospectus. A Selling Shareholder may also loan or pledge the shares
registered hereunder to a bank or broker-dealer and such bank or broker-dealer
may sell the Shares so loaned or, upon a default under the terms of any pledge,
the bank or broker-dealer may effect sales of the pledged Shares pursuant to
this Prospectus.
In connection with the distribution of the Shares offered hereby,
broker-dealers may receive compensation in the form of commissions, discounts
or concessions from the Selling Shareholders in amounts to be negotiated in
connection with the sale or other transaction. Such broker-dealers and any
other broker-dealers participating in such transactions may be deemed to be
"underwriters" with respect to the Shares within the meaning of the Securities
Act
4
<PAGE> 7
of 1933, as amended (the "Act"), and any such commissions, discounts or
concessions may be deemed to be underwriting discounts or commissions under the
Act.
All costs, expenses and fees in connection with the registration of the
Shares under the Act and the printing of this Prospectus will be borne by the
Company. Notwithstanding the foregoing, commissions and discounts, if any,
attributable to the sale or distribution of the Shares will be borne by the
Selling Shareholders. The Selling Shareholders will also be responsible for
fees and expenses of counsel and other advisors to such Selling Shareholders,
the cost of any review of distribution or offering arrangements required under
the rules of the National Association of Securities Dealers, Inc., and for the
cost of any amendment to the registration resulting from a change in the
proposed plan of distribution or from other action by a Selling Shareholder.
The Selling Shareholders may agree to indemnify any broker-dealer or agent
participating in the sale or distribution of the Shares against certain
liabilities, including liabilities arising under the Act. The Selling
Shareholders have agreed to indemnify the Company against certain liabilities,
including liabilities arising under the Act, based upon information supplied to
the Company by the Selling Shareholders for inclusion in the registration of
the Shares under the Act.
The Company has agreed to maintain the registration of the Shares under
the Act in effect until the earlier of (i) the date upon which the sale or
distribution of the Shares by the Selling Shareholders has been completed or is
terminated at the request of such Selling Shareholders or (ii) December 31,
1998. In the event that the exemption from registration provided by Rule 144
under the Act becomes available to the Selling Shareholders prior to December
31, 1998, Shares may be sold under Rule 144 rather than pursuant to this
Prospectus. Recent amendments to Rule 144 adopted by the Securities and
Exchange Commission will make Rule 144 available to the Selling Shareholders on
or before December 31, 1997.
In connection with such agreement, the Selling Shareholders have agreed
with the Company not to engage (or to permit any broker-dealer or agent acting
on their behalf to engage) in offers or sales of the Shares during certain
periods during or following a period in which (a) the Company is engaged in a
registered offering or distribution of equity securities for its own account,
whether for cash or in connection with an acquisition or (b) the information
provided by a Selling Shareholder for inclusion in the registration is
inaccurate or incomplete. Each Selling Shareholder has further agreed to
advise the Company promptly with respect to sales of Shares by or for the
account of such Selling Shareholder, including transactions which result in
"short against the box" positions.
CERTAIN LEGAL MATTERS
The validity of the Common Stock being offered hereby will be passed upon
for the Company by Greensfelder, Hemker & Gale, P.C., 2000 Equitable Building,
10 South Broadway, St. Louis, Missouri 63102. Greensfelder, Hemker & Gale,
P.C. and certain of its officers own, beneficially, an aggregate of
approximately 55,000 shares of Common Stock. In addition, Edward A. Chod, an
officer of Greensfelder, Hemker & Gale, P.C. is a director of the Company.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report (Form 10-K) for the year ended December 31, 1996 have
been audited by Ernst & Young LLP independent auditors, as set forth in their
report thereon and included therein and incorporated herein by reference which,
insofar as it relates to the amounts included for Galen Drugs of Florida, Inc.,
as of September 30, 1995 and for each of the two years in the period then
ended, is based in part on the report of Hacker, Johnson, Cohen & Grieb,
independent auditors. 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.
5
<PAGE> 8
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses
(other than commissions, discounts, selling concessions or other payments made
or allowed to participating broker-dealers) in conjunction with the securities
subject to this Registration Statement as follows:
Registration Fee $ 2,460.18
Legal Fees and Expenses of Issuer 3,000.00
Accounting Fees and Expenses 5,000.00
Printing and Filing Costs 2,500.00
Miscellaneous 639.82
Legal Fees and Expenses of Selling
Shareholders 1,500.00
----------
Total $15,000.00
Except for the Legal Fees and Expenses of Selling Shareholders, the foregoing
expenses will be borne by the Registrant. In the event that the distribution
arrangements relating to the offer and sale of the shares becomes subject to
review by the National Association of Securities Dealers, Inc., the filing fee
with respect thereto and any related expenses will be borne by the Selling
Shareholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The provisions of Section 145 of Chapter One of Title 8 of the Delaware Code,
amended (Section 145 of the General Corporation Law of the State of Delaware),
read as follows:
Section 145. Indemnification of officers,
directors, employees and agents; insurance.
(a) 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), judgments, fines and amounts paid in settlement actually and
reasonably incurred 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.
Page II-1
<PAGE> 9
(b) 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 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) 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.
(c) 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 this section, 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.
(d) Any indemnification under subsections (a) and (b) of this
section (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) of this section. 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 directors, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses incurred by an officer or director in defending a
civil or criminal 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, officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses incurred by
other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section 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, and shall continue as
to a person who has ceased to be a director, officer.
(g) A corporation shall have 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 this section.
Page II-2
<PAGE> 10
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee,
or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section 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.
(Last amended by Ch. 289, L. '86, eff. 7-1-86).
See also Exhibit 10.1 filed herewith for the form of certain indemnification of
the Registrant and its directors and officers by the Selling Shareholders.
ITEM 16. EXHIBITS
5.1 Opinion and consent of Greensfelder, Hemker & Gale, P.C.
10.1 Form of Letter Agreement between the Issuer and each Selling
Shareholder named in the Registration Statement
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Hacker, Johnson, Cohen & Grieb.
23.3 Consent of Greensfelder, Hemker & Gale, P.C. (included in
Exhibit 5.1).
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
Page II-3
<PAGE> 11
(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;
(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;
provided, however, that undertakings 1(i) and 1(ii) above do not apply
to this Registration Statement if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this 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 Securities Exchange Act of 1934 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.
(h) 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
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
Page II-4
<PAGE> 12
SIGNATURES
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the County of St. Louis, State of Missouri, on the 14th day of
March, 1997.
JONES MEDICAL INDUSTRIES, INC.
By: s/DENNIS M. JONES
---------------------------
Dennis M. Jones, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURES TITLE DATE
---------- ----- ----
[S] [C] [C]
/s/ Dennis M. Jones Chairman of the Board March 10, 1997
- --------------------------- President, Chief Executive
Dennis M. Jones, President Officer and Director
/s/ Judith A. Jones Principal Financial Officer, March 10, 1997
- --------------------------- Executive Vice President,
Judith A. Jones Secretary, Treasurer and
Director
/s/ Michael T. Bramblett Executive Vice President and March 10, 1997
- --------------------------- Director
Michael T. Bramblett
/s/ Edward A. Chod Director March 10, 1997
- ---------------------------
Edward A. Chod
/s/ G. Andrew Franz Senior Vice President - March 10, 1997
- --------------------------- Operations - Pharmaceuticals
G. Andrew Franz and Director
/s/ David A. McLaughlin Senior Vice President - March 10, 1997
- --------------------------- Operations - Nutritionals and
David A. McLaughlin Director
- --------------------------- Director
Stanley Lopata
- --------------------------- Director
L. John Polite, Jr.
- --------------------------- Director
Thomas F. Patton
Page II-5
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF GREENSFELDER, HEMKER & GALE, P.C.]
March, 14, 1997
Jones Medical Industries, Inc.
1945 Craig Road
St. Louis, Missouri 63141
Gentlemen:
We are acting as counsel for Jones Medical Industries, Inc. (the
"Company") in connection with the registration of an aggregate of 291,250
shares of its Common Stock, $.04 par value (the "Shares"), under the Securities
Act of 1933, as amended, pursuant to a Registration Statement on Form S-3 filed
on March 14, 1997. The Shares represent a portion of the shares issued
pursuant to the transactions contemplated by the Plan of Reorganization and
Agreement (the "Agreement") dated as of October 24, 1996, by and among the
Company, Abana Pharmaceuticals, Inc., Dale E. Eads and Perry N. Cole and
consist of the shares issued pursuant to such Agreement which were not eligible
for inclusion in the Company's Registration Statement on Form S-4 filed on
November 8, 1996. The Shares are presently outstanding and are to be offered
for the respective accounts of the Selling Shareholders named in the
Registration Statement.
We have examined all proceedings with respect to the due incorporation of
the Company under the laws of the State of delaware, minutes of the Company's
Board of Directors and stockholders, the Agreement and the issuance of the
Shares at the time of Closing thereunder, and such other papers and records as
we deem relevant to the opinion set forth below.
Based upon the foregoing, it is our opinion that the Shares are validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours
GREENSFELDER, HEMKER & GALE, P.C.
<PAGE> 1
EXHIBIT 10.1
Form of Letter Agreement between the Issuer and each Selling Shareholder
March __, 1997
Jones Medical Industries, Inc.
1945 Craig Road
St. Louis, Missouri 63146
Gentlemen:
The undersigned is a "Selling Shareholder" of the Common Stock, $.04 par
value (the "Common Stock") of Jones Medical Industries, Inc. (the "Issuer") as
such term is defined in the Registration Statement on Form S-3 filed with the
Securities and Exchange Commission on March __, 1997 (Registration No.
333-_______) (the "Registration Statement"). The Registration Statement
relates to the offer, sale and distribution by all Selling Shareholders of an
aggregate of 291,250 shares (the "Shares") of the Issuer's Common Stock under
the Securities Act of 1933 (the "Act"). The Shares constitute a portion of the
Issuer's Common Stock issued pursuant to that certain Plan of Reorganization
and Agreement (the "Agreement") dated October 24, 1996, by and among Abana
Pharmaceuticals, Inc., Dale E. Eads and Perry N. Cole, and the Issuer.
In accordance with the Agreement, as an inducement to the Issuer to agree
to: (i) prepare and file the Registration Statement; (ii) use its best efforts
to keep the registration of the Shares under the Act current and effective
until the earlier of: (A) the date upon which the sale or distribution of the
Shares by all Selling Shareholders has been completed or is terminated at the
request of all Selling Shareholders; or (B) August 30, 1998; and (iii) bear the
costs, expenses and fees in connection with the registration of the Shares
under the Act, which costs, expenses and fees shall include: (A) the filing fee
due the Securities and Exchange Commission; (B) the fees and expenses of the
Issuer's counsel and accountants in connection with the preparation, review and
filing of the Registration Statement; and (C) the costs of electronic filing of
the Registration Statement and printing costs with respect to the prospectus
included in the Registration Statement, the undersigned hereby covenants and
agrees with you that:
1. The undersigned will provide to the Issuer such information as it may
reasonably request or that is required for inclusion in the
Registration Statement;
2. The undersigned will indemnify and hold the Issuer and its directors,
officers, employees and authorized agents harmless from and against
any loss, claim, damage, liability or expense suffered by the Issuer
or its directors, officers, employees and authorized agents in
connection with the offer, sale and distribution of Shares under the
Act as contemplated in the Registration Statement, including
reasonable attorney's fees and expenses incurred by the Issuer in the
defense of such claims, and arising from: (a) the
<PAGE> 2
undersigned's failure to observe, perform and discharge its covenants
and agreements set forth herein; and (b) any misstatement of fact, or
the failure to state a fact necessary to make the statements of fact
not misleading, relating to his participation and proposed manner of
sale as set forth under the captions "The Selling Shareholders" and
"Plan of Distribution";
3. The undersigned will bear the expense, incurred by or on behalf of the
undersigned, of any counsel fees and brokerage commissions or other
expenses in connection with the sale of the registered Shares,
including, without limitation, the cost of any review of offering or
brokerage arrangements by the National Association of Securities
Dealers, Inc.;
4. The undersigned will be responsible for costs incurred in connection
with any amendment to the Registration Statement arising from any
change in the proposed manner of offering or distribution or any
withdrawal of Shares from registration and will reimburse the Issuer
for its reasonable out of pocket expenses (including fees of counsel
and accountants and printing expenses) in connection with amending the
Registration Statement and prospectus included therein;
5. The undersigned will not engage (or permit any broker-dealer or agent
acting on its behalf to engage) in offers or sales of the Shares
during: (a) the forty-five (45) days following the effective date of
any registration statement filed by the Issuer relating to an offering
or distribution of equity securities for its own account, whether for
cash or in connection with an acquisition, provided that the Issuer
has given notice to the undersigned of such effective date; or (b)
any period in which the information provided by any of the Selling
Shareholders (including, without limitation, the undersigned) to the
Issuer for inclusion in the Registration Statement is inaccurate or
incomplete; and
6. The undersigned will advise the Issuer promptly of any sales of
Shares by or for its account , including so-called "short against the
box" transactions.
The undersigned further acknowledges the foregoing covenants and
agreements are intended to constitute its binding contract and agreement with
you and that you shall be entitled to enforce the provisions hereof and in the
event of any enforcement proceeding arising from the undersigned's failure to
perform in accordance with this contract and agreement you shall be entitled,
in addition to such other remedies as may be available, to recover your costs
and expenses (including without limitation attorney's fees and expenses) in
connection with any proceeding seeking enforcement against the undersigned.
<PAGE> 3
The undersigned further represents and warrants that the information set
forth in the Registration Statement and prospectus included therein under the
captions "Selling Shareholders" and "Plan of Distribution" is true, correct and
complete and does not include any misstatement of a material fact or omit to
include any statement necessary to make the statements therein not misleading.
Very truly yours,
By: ____________________
Name: ____________________
Title: ____________________
AGREED TO AND ACCEPTED BY
THE ISSUER THIS ___ DAY
OF MARCH, 1997.
By: __________________
Name: Dennis M. Jones
Title: President
<PAGE> 1
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-3, No. 333-_____) and related Prospectus of
Jones Medical Industries, Inc. for the registration of 291,250 shares of its
common stock and to the incorporation by reference therein of our report dated
February 14, 1997 with respect to the consolidated financial statements and
schedule of Jones Medical Industries, Inc. in its Form 10-K for the year ended
December 31, 1996.
St. Louis, Missouri
March 10, 1997
ERNST & YOUNG LLP
<PAGE> 1
EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
Jones Medical Industries, Inc.:
We consent to the use of our report dated April 25, 1996, except for
Note 16 as to which the date is July 30, 1996, with respect to the consolidated
balance sheet of Galen Drugs of Florida, Inc. and subsidiaries as of September
30, 1995 and the related consolidated statements of earnings, stockholders'
equity, and cash flows for the years ended September 30, 1995 and 1994, which
report appears in the Annual Report on Form 10-K for the year ended December 31,
1996 of Jones Medical Industries, Inc., incorporated by reference in your Form
S-3 dated March 14, 1997.
Hacker, Johnson, Cohen & Grieb
Tampa, Florida
March 12, 1997
