<PAGE> 1
Registration No.___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
CONTAINING A REOFFER PROSPECTUS ON FORM S-3
JMAR INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
68-0131180
DELAWARE (I.R.S. Employer
(State or other jurisdiction Identification No.)
of incorporation or organization)
3956 Sorrento Valley Blvd.
San Diego, CA 92121
(Address of principal Executive Offices)
Chris McGill Consulting Agreement
(Full title of the plan)
Dennis E. Valentine
Chief Financial Officer
3956 Sorrento Valley Blvd.
San Diego, CA 92121
(619) 535-1706
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed Maximum
Title of Securities Amount to be Maximum Offering Aggregate Offering Amount of
to be Registered Registered(1) Price Per Share(2) Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
Common Stock,
$ .01 par value 20,000 shares(4) $ 2.44 $48,800.00 $ 14.64
===================================================================================================================================
Common Stock,
$ .01 par value 7,500 shares(5) $ 2.44 $18,300.00 $ 5.49
===================================================================================================================================
Total $ 100.00(3)
===================================================================================================================================
</TABLE>
(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options for Common Stock, or pursuant to the
antidilution adjustment provisions of the plan.
(2) In accordance with Rule 457 calculated on the basis of the average of the
high and low prices for the Common Stock reported on the National
Association of Securities Dealers Automated Quotation System on August 23,
1996.
(3) The minimum registration fee is $100.00
(4) These shares are currently outstanding.
(5) These shares are issuable upon exercise of warrants.
<PAGE> 2
PROSPECTUS
JMAR INDUSTRIES, INC.
20,000 Shares
of Common Stock
This Prospectus relates to the resale by Chris McGill (the "Selling
Stockholder") of 20,000 shares of common stock, $.01 par value per share (the
"Common Stock"), of JMAR Industries, Inc., a Delaware corporation (the
"Company"). See "Selling Stockholder". The Company is not offering any shares
hereunder and will not receive any of the proceeds from the sale of shares by
the Selling Stockholder. It is anticipated that the Selling Stockholder will
offer such shares from time to time in the over-the-counter market at the then
prevailing market prices and terms or in negotiated transactions and without the
payment of any underwriting discounts or commissions, except for usual and
customary selling commissions paid to brokers or dealers. The Selling
Stockholder also may sell such shares from time to time pursuant to Rule 144
under the Securities Act of 1933, as amended (the "Act").
The Common Stock is traded on the National Association of Securities
Dealers Automated Quotation System National Market System ("NASDAQ - NMS") under
the symbol "JMAR". The closing price for the Common Stock as reported by NASDAQ
was $2.44 on August 23, 1996.
THE SECURITIES OFFERED HEREBY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK
AND SHOULD NOT BE PURCHASED BY ANYONE WHO CANNOT AFFORD THE LOSS OF HIS ENTIRE
INVESTMENT. SEE "RISK FACTORS" ON PAGES 4-8 OF THIS PROSPECTUS FOR A DESCRIPTION
OF SEVERAL RISK FACTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Company has agreed to bear all of the expenses (other than selling
commissions and fees and expenses of counsel or other advisors to the Selling
Stockholder) in connection with the registration and sale of the Common Stock
being offered by the Selling Stockholder. See "Selling Stockholder" and "Plan of
Distribution." The Company has also agreed to indemnify the Selling Stockholder
against certain liabilities, including liabilities under the Securities Act of
1933. The total expenses to be paid by the Company for this offering are
estimated at $1,000.
The date of this Prospectus is August 28, 1996
<PAGE> 3
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 regular reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the following
regional offices: Los Angeles Regional Office, 5757 Wilshire Blvd., Suite 500
East, Los Angeles, California 90036-3648; Chicago Regional Office, Everett
McKinley Dirksen Building, 219 S. Dearborn Street, Room 1704, Chicago, Illinois
60604; New York Regional Office, 7 World Trade Center, New York, New York 10048.
Copies of such material may also be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates.
The Company's Common Stock, Class A Warrants and Units are quoted on
the NASDAQ System. Any such reports, proxy statements or other information filed
by the Company can also be inspected at the offices of the NASDAQ, 1735 K
Street, N.W., Washington, D.C. 20006-1500.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents (or specified portions thereof) filed with the
Commission by the Company are incorporated by reference herein as of their
respective dates and are made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q and Form
10-Q/A for the quarter ended March 31, 1996;
(c) The Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996;
(d) The description of Common Stock contained in "Description of
Securities" in the Company's Registration Statement on Form
8-A, dated April 3, 1990, as amended on a Form 8, dated April
9, 1990, filed pursuant to Section 12(b) of the Exchange Act;
(e) The Company=s Form 8-K, filed December 27, 1994, pursuant to
Section 13(a) under the Securities Act of 1934 describing the
sale of Surgilase, Inc. and the Company's Form 8-K/A, filed
January 10, 1995 related thereto.
(f) The Company's Form 8-K, filed May 31, 1996, pursuant to
Section 13(a) under the Securities Act of 1934 describing the
acquisition of approximately 94 percent of the outstanding
common stock of California ASIC Technical Services, Inc. and
the Company's Form 8-K/A, filed August 6, 1996 related
thereto.
(g) The Company's Form 10-C filed on May 31, 1996.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the securities
hereby shall be deemed to be incorporated herein by reference and shall be a
part hereof from the date of the filing of such documents.
2
<PAGE> 4
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 Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request, a copy of any or all of the documents that have been
incorporated herein by reference, except for the exhibits to such documents
which are not specifically incorporated herein by reference. Requests should be
directed to Corporate Secretary, JMAR Industries, Inc., 3956 Sorrento Valley
Blvd., San Diego, California; (619) 535-1706.
3
<PAGE> 5
RISK FACTORS
THIS OFFERING INVOLVES SUBSTANTIAL INVESTMENT RISK AND SHARES SHOULD BE
PURCHASED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT. IN
EVALUATING AN INVESTMENT IN THE COMPANY AND ITS BUSINESS, PROSPECTIVE INVESTORS
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AS WELL AS OTHER
INFORMATION SET FORTH ELSEWHERE IN THIS PROSPECTUS.
1. SIGNIFICANT LOSSES. The Company had revenues, excluding discontinued
operations, of $2,126,342, $5,241,596, $9,148,925, $10,821,025, $12,210,490 and
$6,491,506 for the years ended December 31, 1991, 1992, 1993, 1994 and 1995 and
for the six months ended June 30, 1996, respectively, and incurred net losses of
$2,000,368, $4,923,602, $12,975,637 and $4,665,654 for the years ended December
31, 1991, 1992, 1993 and 1994, respectively, a net profit of $76,265 for the
year ended December 31, 1995, and a net loss of $262,660 for the six months
ended June 30, 1996. There can be no assurance that the Company will achieve
significant revenues or profitable operations in the future.
The Company completed a restructuring in 1994 in which it spun-off a
division, which has been classified as a "discontinued" operation, plus it sold
several other unprofitable product lines, which it has classified as
"terminated" operations, the results of which are included in the above results.
Excluding both "discontinued" and "terminated" operations the Company's revenues
for the fiscal years 1991 through 1995 were approximately $713,000, $2,328,000,
$3,621,000, $7,782,000 and $12,210,490, respectively.
2. SIGNIFICANT CASH REQUIREMENTS. The Company's cash requirements have been
and will continue to be significant. The Company's negative cash flow from
operations for the years ended December 31, 1992, 1993, 1994 and 1995 and the
six months ended June 30, 1996 was $4,238,014, $7,341,389, $3,065,334,
$1,625,119 and $569,752, respectively. In connection with the Company's
acquisition of Cal ASIC, the Company loaned Cal ASIC $500,000 at the closing of
the transaction and agreed to advance up to an additional $1,000,000 to Cal ASIC
over an eighteen month period to be used by Cal ASIC for equipment purchases and
working capital purposes. To the extent the Company requires additional
financing, there can be no assurance that such future financings will be
available to the Company on acceptable terms.
3. SHARES ELIGIBLE FOR SALE. As of the date of this Prospectus, the Company
had outstanding 16,190,639 shares of Common Stock of which (i) 13,419,573 shares
are freely transferable without restriction or further registration under the
Securities Act (including 376,505 covered by this Prospectus) and (ii) 2,771,066
shares are "restricted securities" within the meaning of Rule 144 under the
Securities Act. Under Rule 144, if certain conditions are met, persons who are
affiliates of the Company and persons who satisfy a two year "holding period"
may sell within any three month period a number of shares which does not exceed
the greater of one percent of the total number of shares outstanding or the
average weekly trading volume of such shares during the four calendar weeks
prior to such sale. After a three year holding period is satisfied, persons who
are not "affiliates" of the Company are permitted to sell such shares without
regard to these volume restrictions. "Affiliates" of the Company consist of all
officers and directors of the Company and all holders of ten percent (10%) or
more of the outstanding shares of Common Stock. Of the 13,419,573 shares which
are freely transferable, 434,017 are owned by affiliates and are subject to the
volume limitations of Rule 144.
The SEC has proposed an amendment to Rule 144 to reduce the aforementioned
two and three year holding periods to one and two years, respectively. If such
proposed rule amendment was finalized as of July 31, 1996, the number of shares
which are freely transferable and the number of shares which are "restricted
securities" would be 13,743,585 and 2,447,054, respectively.
An additional 6,676,619 shares of Common Stock which are not issued and
outstanding but which are issuable upon the exercise of warrants and options and
the conversion of convertible notes are
4
<PAGE> 6
included in currently effective registration statements (of which 2,144,953 are
covered by this Prospectus) and upon issuance will be freely transferable during
the effectiveness of such registration statements or are included in warrants
issued pursuant to Regulation S. Of the 6,676,619 shares of Common Stock
issuable upon the exercise of warrants and options and the conversion of
convertible notes, 631,701 are not currently exercisable.
4. RECENT ACQUISITION. On May 23, 1996, the Company acquired 94 percent of
California ASIC ("Cal ASIC"), a quick turn, but as yet unprofitable,
manufacturer of a special category of semiconductor chips. The Company expects
that the initial expense of integrating Cal ASIC into the Company and expanding
its sales volume to profitable levels will produce losses for the first several
quarters after the closing of the transaction. Furthermore, there are no
assurances that even with the additional investment that the Company plans to
make, Cal ASIC will ever achieve profitability. There are many possible factors
which could negatively impact the achievement of the expected future benefits to
the Company, including: failure of the quick-turn gate array market to
materialize as rapidly as forecast, emergence of new competitors, possible
patent infringement claims, inability to attract and retain the additional
qualified employees required to manufacture and sell the Cal ASIC products and
services, failure of Cal ASIC's manufacturing facilities to produce adequate
quantity of products within the required time frame at profitable cost levels,
deterioration of the relationship between Cal ASIC and its base wafer suppliers,
litigation from prior creditors or shareholders of Cal ASIC and the ability of
the Company to raise the funds necessary to adequately finance the working
capital needs and equipment purchase needs of Cal ASIC.
5. GOVERNMENT REGULATION. The Company's JTC subsidiary is subject to
regulation in connection with its government R&D contract work. In addition, JTC
is subject to audit by the U.S. Government (the "Government") of its costs
incurred under Government contracts and to safety audits by various Government
agencies.
6. POSSIBLE FLUCTUATIONS IN OPERATING RESULTS. The Company's operating
results are likely to vary from period to period as a result of the Company's
sales cycle and nonrecurring sales of a limited number of large laser and other
manufacturing systems.
7. LIMITED PRODUCT LINE; UNCERTAINTY OF MARKET ACCEPTANCE AND MARKET
PENETRATION. The markets for certain of the Company's products may be saturated.
There can be no assurance that the Company will achieve greater penetration in
such markets. Achieving market acceptance for the Company's new and proposed
products requires substantial marketing and sales efforts and the expenditure of
significant funds to create customer awareness of and demand for the Company's
products. There can be no assurance that recent or future additions to the
Company's product lines will achieve market acceptance or result in
significantly increased levels of revenues.
8. RESEARCH AND DEVELOPMENT COSTS. The development of sophisticated laser
and microelectronics manufacturing products is a lengthy and capital intensive
process and is subject to unforeseen risks, delays, problems and costs. There
can be no assurance that the Company will be able to successfully develop any
additional products or enhance existing products, or that unanticipated
technical or other problems will not occur which would result in delays in the
Company's development program. Failure to complete development of a product
could result in the complete loss of the funds committed by the Company to that
product, which could be substantial.
5
<PAGE> 7
9. PRODUCT DEFECTS. Products as complex as the Company's may contain
certain defects which from time to time become apparent subsequent to commercial
use. Remedying such defects could require significant modifications at
substantial costs to the Company.
10. DEPENDENCE ON SUPPLIERS; NO ASSURANCE OF CONTINUOUS AND TIMELY
PRODUCTION. The Company is primarily dependent upon outside suppliers for
components used in the manufacture of its products. Failure to maintain
satisfactory agreements with suppliers could have a material adverse effect on
the Company. There can be no assurance that in the future its current or
alternative sources will be able to meet all of the Company's demands on a
timely basis. Unavailability of parts or components used in the manufacture of
its products could require the Company to re-engineer its products to
accommodate available substitutions, which could increase costs to the Company
or have a material adverse effect on manufacturing schedules, product
performance and market acceptances.
11. COMPETITION; POSSIBLE TECHNOLOGICAL OBSOLESCENCE. The markets for the
Company's products are highly competitive and are characterized by rapid
technological change and evolving industry standards. Development by others of
new or improved products, processes or technologies may make the Company's
products obsolete or less competitive. The ability of the Company to compete is
dependent on the Company's ability to continually enhance and improve its
products and to successfully develop and market new products. Many of the
Company's competitors have greater financial, managerial and technical resources
than the Company. There can be no assurance that the Company will successfully
differentiate itself from its competitors, that the market will consider the
Company's products to be superior to its competitors' products or that the
Company will be able to adapt to evolving markets and technologies, develop new
products or achieve and maintain technological advantages.
12. PATENTS AND PROPRIETARY RIGHTS. The Company relies, to a significant
extent, on patents, trade secrets and confidentiality agreements to protect its
proprietary technology. There can be no assurance as to the breadth or degree of
protection which existing or future patents, if any, may afford the Company, or
that patents will not be circumvented or invalidated, or that the Company's
products do not and will not infringe on patents or violate proprietary rights
of others. In the event a patent infringement claim is asserted against the
Company, or the Company is required to enforce its rights under an issued
patent, the cost of such actions may be very high, whether or not the Company is
successful. While the Company is unable to predict what such costs, if any, will
be if the Company is obligated to pursue patent litigation, its ability to fund
its operations and to pursue its business goals may be substantially impaired.
13. RELIANCE ON FOREIGN SALES. The Company derives a portion of its
revenues from foreign markets and expects to continue to be dependent upon such
markets. Revenues from foreign markets were $3,351,561 and $1,801,440 for the
years ended December 31, 1994 and 1995, respectively. As a result, the Company
is subject to various risks inherent in foreign trade, including economic or
political instability, shipping delays, fluctuations in foreign currency rates,
custom duties and import quotas and other trade restrictions, all of which could
have a significant impact on the Company's ability to deliver its products on a
timely and competitive basis.
14. GOVERNMENT BUDGET CONSTRAINTS. Certain of the Company's research and
development activities are partially dependent on Government sponsorship,
particularly by the U.S. Department of Defense ("DOD"). The DOD's overall budget
is undergoing intense scrutiny and is subject to significant reduction as a
result of current world events. This may result in fewer funds available for the
contracts the Company is seeking from the DOD and could adversely affect the
Company's ability to attain a profitable R&D contract business.
15. PRODUCT LIABILITY. The Company may be exposed to potential product
liability claims arising out of the use of the Company's products. Although the
Company currently maintains product liability insurance, there can be no
assurance that such insurance will be sufficient to cover potential claims or
that the present level of coverage will be available in the future at a
reasonable cost. A partially or
6
<PAGE> 8
completely uninsured successful claim against the Company could have a material
adverse affect on the Company.
16. RELIANCE UPON KEY EMPLOYEES. The success of the Company is
substantially dependent on the efforts of certain key personnel of the Company.
The loss of such key personnel could adversely affect the Company's business and
prospects. In such event, there can be no assurance that the Company would be
able to employ qualified persons on terms favorable to the Company. In seeking
qualified personnel, the Company will be required to compete with companies
having greater financial and other resources than the Company. Since the future
success of the Company is, in part, dependent upon its ability to retain or
attract qualified personnel, the Company's failure to do so could have a
materially adverse impact on the business of the Company.
17. OUTSTANDING RIGHTS TO ACQUIRE COMMON STOCK. As of July 31, 1996, there
were 8,075,663 shares of Common Stock subject to issuance upon exercise of
outstanding options and warrants and upon conversion of outstanding convertible
notes, including 2,144,953 shares of Common Stock offered hereby and 4,531,666
shares which are included in currently effective registration statements or are
included in warrants issued pursuant to Regulation S. To the extent that
outstanding options and warrants are exercised prior to their expiration dates
and other securities are converted, additional equity investment funds will be
paid into the Company at the expense of dilution to the interests of the
Company's stockholders. Moreover, the terms upon which the Company will be able
to obtain additional equity capital may be adversely affected since the holders
of outstanding options and warrants and other securities can be expected to
exercise or convert them at a time when the Company would, in all likelihood, be
able to obtain any needed capital on terms more favorable to the Company than
those provided in such securities. See "Description of Capital Stock" and
"Shares Eligible for Future Sale."
18. NO DIVIDENDS. The Company has never paid cash dividends and intends,
for the foreseeable future, to retain its earnings, if any, to finance its
business. Future dividend policy will depend on the Company's earnings, capital
requirements, financial condition, debt covenants and other factors considered
relevant by the Company's Board of Directors.
19. UTILIZATION OF NET OPERATING LOSS CARRYFORWARD. Realization of future
tax benefits from utilization of the Company's net operating loss carryforwards
for income tax purposes is limited by changes in ownership in 1990, 1992 and
1993. In addition, the net operating losses of acquired companies are also
subject to separate change of ownership limitations.
20. AUTHORIZATION AND ISSUANCE OF PREFERRED STOCK. The Company's Board of
Directors is authorized to issue up to 5,000,000 shares of Preferred Stock. The
Board of Directors has the power to establish the dividend rates, liquidation
preferences, voting rights, redemption and conversion terms and privileges with
respect to any series of Preferred Stock. The issuance of any shares of
Preferred Stock having rights superior to those of the Common Stock may result
in a decrease in the value or market price of the Common Stock. Holders of
Preferred Stock may have the right to receive dividends, certain preferences in
liquidation and conversion rights. The issuance of Preferred Stock could, under
certain circumstances, have the effect of delaying, deferring or preventing a
change in control of the Company without further vote or action by the
stockholders and may adversely affect the voting and other rights of the holders
of Common Stock. See "Description of Capital Stock -- Preferred Stock."
21. NASDAQ-NMS MAINTENANCE REQUIREMENTS; POSSIBLE DELISTING OF SECURITIES
FROM NASDAQ-NMS SYSTEM. The Board of Governors of the National Association of
Securities Dealers, Inc. has established certain standards for the continued
listing of a security on the NASDAQ National Market System ("NASDAQ-NMS"). The
maintenance standards for continued listing of the Company's Common Stock on the
NASDAQ-NMS require, among other things, that (i) an issuer have net tangible
assets of at least $4 million if the issuer has sustained losses from continuing
operations and/or net losses in three of its four most recent fiscal years; (ii)
the market value of its publicly held shares is at least $1 million (in the
event that the minimum bid price per share of the Company's Common stock should
fall below $1.00 per share, the market value of the public float of the
Company's shares must exceed $3 million); (iii) at
7
<PAGE> 9
least 200,000 shares of Common Stock are publicly held; and (iv) the issuer has
at least 400 shareholders. As of June 30, 1996, the Company's net tangible
assets were approximately $6,216,000. There can be no assurance that the Company
will continue to satisfy the requirements for maintaining a NASDAQ-NMS listing
in the future. If the Company's securities were excluded from NASDAQ-NMS, it may
adversely affect the prices of such securities and the ability of holders to
sell them. If the Company's securities were excluded from NASDAQ-NMS, the
Company would seek to list its securities on the NASDAQ "Small Cap" system. In
such an event NASDAQ might require the Company to meet the initial inclusion
requirements of the NASDAQ "Small Cap" system, which require, among other
things, that an issuer have total assets of at least $4,000,000, capital and
surplus of at least $2,000,000 and a minimum bid price of $3 per share. There
can be no assurance that the Company will satisfy those initial inclusion
requirements for the NASDAQ "Small Cap" system in the future should its
securities be delisted from the NASDAQ-NMS.
22. PENNY STOCK REGULATION. In the event that the Company's securities are
neither listed on the NASDAQ-NMS nor on the NASDAQ Small Cap system, trading
would be conducted in the Apink sheets@ or through the NASD's Electronic
Bulletin Board. In the absence of the Common Stock being quoted on NASDAQ,
trading in the Common Stock would be covered by Rule 15c2-6 promulgated under
the Securities Exchange Act of 1934 for non-NASDAQ and non-exchange listed
securities. Under such rule, broker/dealers who recommend such securities to
persons other than established customers and accredited investors must make a
special written suitability determination for the purchaser and receive the
purchaser's written agreement to a transaction prior to sale. Securities also
are exempt from this rule if the market price is at least $5.00 per share.
The Securities and Exchange Commission recently adopted regulations that
generally define a penny stock to be any equity security that has a market price
of less than $5.00 per share, subject to certain exceptions. Such exceptions
include an equity security listed on NASDAQ and an equity security issued by an
issuer that has (i) net tangible assets of at least $2,000,000, if such issuer
has been in continuous operation for three years, (ii) net tangible assets of at
least $5,000,000, if such issuer has been in continuous operation for less than
three years, or (iii) average revenue of at least $6,000,000 for the preceding
three years. Unless an exception is available, the regulations require the
delivery, prior to any transaction involving a penny stock, of a disclosure
schedule explaining the penny stock market and the risks associated therewith.
At the current time, the Company's Common Stock is listed on the NASDAQ-NMS
system and its net tangible assets and average revenues are substantially above
the minimums set forth above. Therefore, the Company's stock is not subject to
the penny stock regulations.
If the Company's Common Stock were subject to the regulations on penny
stocks, the market liquidity for the Common Stock would be severely affected by
limiting the ability of broker/dealers to sell the Common Stock and the ability
of purchasers in this offering to sell their securities in the secondary market.
There is no assurance that trading in the Company's securities will not be
subject to these or other regulations in the future which would adversely affect
the market for such securities.
23. MARKET OVERHANG FROM THE WARRANTS; MARKET OVERHANG RESULTING FROM
CERTAIN ANTI-DILUTION PROVISIONS. The exercise of the Company's outstanding
warrants and options, or a substantial portion thereof, and sale of the shares
issued upon exercise could adversely affect the market price of the Common
Stock. In addition, the number of shares issuable upon exercise of the
Underwriters' Warrants issued in the Company's 1993 public offering as well as
the exercise price of the warrants underlying such Underwriters' Warrants, are
subject to adjustment under certain circumstances, including the future issuance
of shares by the Company at a price less than the current exercise prices of
such warrants and options. The issuance of additional shares as a result of such
anti-dilution provisions could also adversely affect the market price of the
Common Stock. See "Description of Securities -- Warrants."
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock by the
Selling Stockholder.
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<PAGE> 10
SELLING STOCKHOLDER
The following table sets forth as of August 16, 1996 certain
information regarding the beneficial ownership of the Company's Common Stock by
the Selling Stockholder. The Selling Stockholder was a consultant to the Company
from November, 1993 to January, 1994 and from March, 1995 to May, 1995. The
Selling Stockholder has sole voting and investment power with respect to the
shares indicated.
<TABLE>
<CAPTION>
Number of Number of Percent of
Shares of Percent of Shares Shares
Common Shares of Remaining if Outstanding if
Stock Common Number of All Shares All Shares
Beneficially Stock Shares Being Registered Registered
Name and Address Owned Outstanding Registered Are Sold Are Sold
- ---------------------------- ------------ ----------- ------------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Chris McGill
117 Cloudcrest
Aliso Viejo, CA 92656-1329 27,500 * 27,500 0 0.00%
</TABLE>
- -------
* Less than one percent.
9
<PAGE> 11
PLAN OF DISTRIBUTION
Following the date of this Prospectus, the Selling Stockholder will be
able to sell shares covered hereunder from time to time in one or more
transactions in the over-the-counter market at prices and on terms prevailing on
the date of the sale or in negotiated transactions or otherwise. The shares
covered hereby may be sold by the Selling Stockholder from and after the date of
this Prospectus, and the Company has not been advised when, or even whether, the
Selling Stockholder intends to sell such shares.
The Selling Stockholder may pay customary brokerage commissions on the
sale transactions. The Selling Stockholder and the brokers and dealers through
whom sales of the shares are made may be deemed "underwriters" within the
meaning of the Act and any and all payments to brokers/dealers associated with a
distribution may be considered to be underwriting compensation. Pursuant to its
agreement with the Selling Stockholder, the Company has agreed to indemnify the
Selling Stockholder against certain liabilities, including those arising under
the Securities Act of 1933. If the Selling Stockholder should engage a broker or
dealer to sell a material portion of the Common Stock offered hereby, the
Company may be required to file a post-effective amendment to this Registration
Statement to show a change in the plan of distribution. The shares of Common
Stock will be offered on a delayed or continuous basis pursuant to Rule 415
under the Act.
EXPERTS
The consolidated financial statements and schedules of the Company and
the financial statements of California ASIC Technical Services, Inc. as of
December 31, 1995 and 1994 and for the years then ended incorporated by
reference in this Prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants, to the
extent and for the periods indicated in their reports with respect thereto, and
are incorporated by reference herein in reliance upon the authority of said firm
as experts in accounting and auditing in giving said reports.
The financial statements of California ASIC Technical Services, Inc. as
of December 31, 1993 and for the year then ended incorporated by reference in
this Prospectus and elsewhere in the registration statement have been audited by
Corbin & Wertz, independent public accountants, to the extent and for the period
indicated in their report with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said report.
LEGAL MATTERS
The legality of the Securities offered hereby is being passed upon for
the Company by Parker, Milliken, Clark, O'Hara & Samuelian, A Professional
Corporation, Los Angeles, California.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a Registration Statement on Form S-8 under
the Securities Act of 1933 with respect to the securities offered hereby.
This Prospectus, filed as a part of the Registration Statement, does
not contain all of the information set forth in the Registration Statement,
certain portions of which have been omitted as
10
<PAGE> 12
permitted by the rules and regulations of the Commission. For further
information pertaining to the shares of Common Stock offered hereby and to the
Company, reference is made to the Registration Statement, including the exhibits
filed as a part thereof and the documents containing the information which is
incorporated by reference herein. Copies of the Registration Statement and the
exhibits thereto may be obtained from the Commission upon payment of the fees
prescribed therefor and may be examined at the principal office of the
Commission, at 450 Fifth Street, Washington, D.C., 20549.
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus, and if given or made, such information or representations must not
be relied upon as having been authorized by the Company. This Prospectus does
not constitute an offer or solicitation to any person in any jurisdiction where
such offer or solicitation would be unlawful. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
other than the registered securities to which it relates. Neither delivery of
this Prospectus nor any sales hereunder shall, under any circumstances, create
an implication that there has been no change in the facts herein set forth since
the date hereof.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information.................................... 2
Incorporation of Certain Documents by Reference.......... 2
Risk Factors............................................. 4
Use of Proceeds.......................................... 8
Selling Stockholder...................................... 9
Plan of Distribution .................................... 10
Experts.................................................. 10
Legal Matters............................................ 10
Additional Information................................... 10
</TABLE>
11
<PAGE> 13
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents (or specified portions thereof) filed
with the Commission by the Company are incorporated by reference herein as of
their respective dates and are made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q and Form
10-Q/A for the quarter ended March 31, 1996;
(c) The Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996;
(d) The description of Common Stock contained in
"Description of Securities" in the Company's
Registration Statement on Form 8-A, dated April 3,
1990, as amended on a Form 8, dated April 9, 1990,
filed pursuant to Section 12(b) of the Exchange
Act;
(e) The Company's Form 8-K, filed December 27, 1994,
pursuant to Section 13(a) under the Securities Act
of 1934 describing the sale of Surgilase, Inc. and
the Company's Form 8-K/A, filed January 10, 1995
related thereto.
(f) The Company's Form 8-K, filed May 31, 1996,
pursuant to Section 13(a) under the Securities Act
of 1934 describing the acquisition of approximately
94 percent of the outstanding common stock of
California ASIC Technical Services, Inc. and the
Company's Form 8-K/A, filed August 6, 1996 related
thereto.
(g) The Company's Form 10-C filed on May 31, 1996.
All documents filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering of the
securities hereby shall be deemed to be incorporated herein by reference and
shall be a part hereof from the date of the 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 Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
II-1
<PAGE> 14
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware authorizes
indemnification of directors, officers and employees of Delaware corporations.
Article V of the registrant's by-laws (i) authorizes the indemnification of
directors and officers (the "Indemnitees") under specified circumstances to the
fullest extent authorized by the General Corporation Law of Delaware, (ii)
provides for the advancement of expenses to the Indemnitees for defending any
proceedings related to the specified circumstances, (iii) gives the Indemnitees
the right to bring suit against the registrant to enforce the foregoing rights
to indemnification and advancement of expenses, and (iv) authorizes the
registrant to maintain certain policies of insurance to protect itself and any
of its directors, officers or employees. The registrant currently maintains
policies of insurance under which the directors and officers of registrant are
insured, within the limits and subject to the limitations of the policies,
against certain expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been such directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits to the registration statement are listed in the Exhibit Index
elsewhere herein.
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;
(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 paragraph (a)(1)(i) and (a)(1)(ii) shall
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 registrant
pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference 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 Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration
II-2
<PAGE> 15
statement shall be deemed to be a new registration statement relating to the
securities offered herein, 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 provisions described in Item 6, 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
proceedings) 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.
II-3
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 County of San Diego, State of California, on the 22nd day of
August, 1996.
JMAR INDUSTRIES, INC.
By: /s/ Dennis E. Valentine
--------------------------------
Dennis E. Valentine
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons on August 22, 1996, in
the capacities indicated.
Signature Title
/s/ JOHN S. MARTINEZ Chairman of the Board,
- ---------------------------------- Chief Executive Officer and Director
John S. Martinez
/s/ DENNIS E. VALENTINE Chief Financial Officer and Principal
- ---------------------------------- Accounting Officer
Dennis E. Valentine
/s/ C. NEIL BEER Director
- ----------------------------------
C. Neil Beer
/s/ JAMES H. BANISTER, JR Director
- ----------------------------------
James H. Banister, Jr.
/s/ VERNON H. BLACKMAN Director
- ----------------------------------
Vernon H. Blackman
/s/ BARRY RESSLER Director
- ----------------------------------
Barry Ressler
/s/ MARVIN W. SEPE Director
- ----------------------------------
Marvin W. Sepe
II-4
<PAGE> 17
EXHIBIT INDEX
No. Description
5 Opinion of Parker, Milliken, Clark, O'Hara &
Samuelian
24.1 Consent of Parker, Milliken, Clark, O'Hara &
Samuelian (contained in Exhibit 5)
24.2 Consent of Arthur Andersen & Co.
24.3 Consent of Corbin & Wertz.
II-5
<PAGE> 1
Exhibit 5
[PARKER, MILLIKEN, CLARK, O'HARA & SAMUELIAN LETTERHEAD]
August 23, 1996
JMAR Industries, Inc.
3956 Sorrento Valley Boulevard
San Diego, California 92121
Gentlemen:
This opinion is rendered to you in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of 20,000
shares of the Company's $.01 par value Common Stock which are currently issued
and outstanding and 7,500 shares of Common Stock which are authorized for
issuance upon the exercise of a warrant (the "Warrant") granted to Chris McGill
pursuant to a Consulting Agreement.
In rendering this opinion, we have examined and relied upon,
among other things, originals or copies, identified to our satisfaction as being
true copies, of the following: Certificate of Incorporation of the Company, as
amended to date; Bylaws of the Company, as amended to date; and corporate
records and other instruments and documents as were deemed necessary or
appropriate for purposes of this opinion. As to questions of fact material to
this opinion, we have, when the relevant facts were not independently
established by us, relied upon the documents we have examined or upon
certificates of officers of the Company. In our examination of the documents
referred to above, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are attorneys duly
admitted and qualified to practice in the State of California and we express no
opinion as to the laws of any other jurisdiction except United States federal
law.
On the basis of the foregoing, and in reliance thereon, we are
of the opinion that (i) the 20,000 shares of the Company's Common Stock which
are issued and outstanding have been duly and validly authorized, validly
issued, fully paid and nonassessable,
<PAGE> 2
JMAR Industries, Inc.
August 23, 1996
Page 2
and (ii) the 7,500 shares reserved for issuance under the Warrant have been duly
and validly authorized and reserved for issuance upon the exercise of Warrant
and the shares, upon issuance pursuant to the provisions of the Warrant,
including receipt of the required consideration, will be validly issued, fully
paid and nonassessable.
We hereby consent to the use of our name and inclusion of this
opinion as an Exhibit to the attached Form S-8 Registration Statement.
This opinion is intended solely for the use of the Company and
the Securities and Exchange Commission in connection with the Company's
registration under the Act, pursuant to a Registration Statement on Form S-8, of
the 20,000 shares and the 7,500 shares of Common Stock reserved for issuance
under the Warrant, and may not be relied upon by any other party or for any
other purpose.
Very truly yours,
Parker, Milliken, Clark, O'Hara
Samuelian, P.C.
<PAGE> 1
Exhibit 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated March
25, 1996 included in the JMAR Industries, Inc. Form 10-K for the year ended
December 31, 1995, and our report dated May 23, 1996 included in the JMAR
Industries, Inc. Form 8-K/A dated August 2, 1996, and to all references to our
firm included in this registration statement.
ARTHUR ANDERSEN LLP
San Diego, California
August 22, 1996
<PAGE> 1
Exhibit 24.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Board of Directors
California ASIC Technical Services, Inc.
We consent to the incorporation by reference in the two Registration Statements
on Form S-8 of JMAR Industries, Inc., expected to be filed August 28, 1996 of
our report dated February 25, 1994, except as to Note 11, which is as of March
5, 1994, related to the 1993 financial statements of California ASIC Technical
Services, Inc., included in Amendment No. 1 to Form 8-K/A of JMAR Industries,
Inc., dated August 2, 1996 and the reference to our firm under the heading
"Experts" included in the Prospectus.
/s/ Corbin & Wertz
Corbin & Wertz
Irvine, California
August 27, 1996
