<PAGE> 1
As filed with the Securities and Exchange Commission on September 22, 2000
Registration No: ____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------
JMAR TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 3559 68-0131180
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
3956 Sorrento Valley Blvd.
San Diego, California 92121
(858) 535-1706
(Address including zip code and telephone number, including area code of
Registrant's principal executive offices and principal place of business)
Joseph G. Martinez, Esq.
General Counsel
3956 Sorrento Valley Blvd.
San Diego, CA 92121
(858) 535-1706
(Name, address, including zip code and telephone number, including area code,
of agent for service)
------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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 being filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
Proposed Proposed
Title of each Class of Amount to be Maximum Maximum Amount of
Securities to be Registered Offering Price Aggregate Registration
Registered (1) Per Share (2) Offering Price Fee
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 229,347 $8.30 $1,903,580 $502.55
==============================================================================================
</TABLE>
(1) Pursuant to Rule 416, the Registration Statement also relates to an
indeterminate number of shares of Common Stock issuable upon the
exercise of warrants held by the Selling Stockholders pursuant to
provisions which provide for a change in the amount of the Common Stock
issuable thereunder to prevent dilution resulting from stock splits,
stock dividends or similar transactions, which shares of Common Stock
are registered hereunder.
(2) Calculated solely for purposes of determining the registration fee and
based on the average of the high and low prices for the Common Stock on
September 18, 2000 as reported on NASDAQ.
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 THEREUNDER 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> 3
PROSPECTUS
JMAR TECHNOLOGIES, INC.
229,347 Shares
of Common Stock
--------------
This Prospectus covers up to 229,347 shares of the common stock of JMAR
Technologies, Inc., a Delaware corporation, which may be sold from time to time
by the shareholders named in this prospectus. The Company is not offering any
shares under this Prospectus and will not receive any of the proceeds from the
sale of these shares. Our common stock is traded on the Nasdaq National Market
under the symbol "JMAR". On September 18, 2000, the closing sale price for the
common stock as reported on the Nasdaq National Market was $8.30 per share.
The selling shareholders may sell the shares of common stock offered by
this prospectus from time to time in transactions on the open market or in
negotiated transactions, in each case at prices satisfactory to them.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 TO READ ABOUT FACTORS YOU SHOULD CONSIDER
BEFORE BUYING SHARES OF OUR COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
No person has been authorized by us to give any information or to make
any representations about the offering of common stock made by this prospectus
other than the information and representations contained in this prospectus.
Accordingly, you should not rely on information outside of this prospectus. This
prospectus is not an offer to sell or buy any security other than the common
stock offered by this prospectus; it is not an offer to sell or buy securities
in any jurisdiction in which such offer is not qualified; and it is not an offer
to buy or sell securities to any person to whom such offer would be unlawful.
The information in this prospectus is current as of the date of this prospectus.
Your receipt of this prospectus does not mean that there has been no change in
the affairs of JMAR Technologies, Inc. since the date of this prospectus or that
the documents which are incorporated by reference in this prospectus are correct
as of any date after the date of such documents.
The date of this Prospectus is September __, 2000
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. Our filings are
available to the public over the internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
Public Reference Rooms in Washington, D.C., New York, New York and Chicago,
Illinois. The Public Reference Room in Washington D.C. is located at 450 Fifth
Street, N.W. Please call the SEC at 1-800-SEC-0330 for further information on
the Public Reference Rooms. Information concerning us is also available for
inspection at the offices of the Nasdaq National Market, Reports Section, 1735 K
Street, N.W., Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
after the date of this prospectus until the termination of the offering:
- Annual Report on Form 10-K for the fiscal year ended December 31, 1999;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2000;
- Quarterly Report on Form 10-Q for the quarter ended June 30, 2000;
- Current Report on Form 8-K filed February 15, 2000;
- The description of our common stock contained in our registration statement
on Form 8-A, filed on April 3, 1990, including any amendment or report filed
for the purpose of updating the description; and
- The description of our Preferred Share Purchase Rights contained in our
registration statement on Form 8-A filed on March 8, 1999.
This prospectus is part of a registration statement on Form S-3 filed with
the SEC under the Securities Act of 1933. This prospectus does not contain all
of the information set forth in the registration statement. You should read the
registration statement for further information about us and our common stock.
You may request a copy of these filings at no cost. Please direct your requests
to:
JMAR Technologies, Inc.
3956 Sorrento Valley Blvd.
San Diego, California 92121
Attention: Dennis Valentine
(858) 535-1706
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<PAGE> 5
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front page of those documents.
PROSPECTUS SUMMARY
The following is a summary of certain information contained in this
Prospectus and is qualified in its entirety by the more detailed information
included in this Prospectus and incorporated herein by reference.
Founded in 1987, San Diego, California-based JMAR Technologies, Inc.
(the "Company" or "JMAR") is a semiconductor industry-focused company. JMAR
provides a full range of measurement and inspection systems for high-precision,
sub-micron manufacturing applications and is a leading developer of proprietary
advanced laser and X-ray light sources for high-value microelectronics
manufacturing and metrology applications. It has also adapted some of its key
semiconductor manufacturing technology to the biochip manufacturing industry. In
addition, JMAR is a provider of custom and standard high performance
semiconductors for the broad electronics market. JMAR's two business segments,
both located in Southern California, are as follows:
MICROELECTRONICS EQUIPMENT - This segment includes the operations of
JMAR Precision Systems, Inc. ("JPSI") and JMAR Research, Inc. ("JRI"). The
Company manufactures state-of-the-art precision measurement, motion control and
light-based manufacturing systems for the microelectronics industry, including
high-performance laser-light based precision systems for repairing defective
semiconductors and fabricating advanced biomedical products; and conceives and
creates leading-edge microelectronics manufacturing systems based on the
Company's patented X-ray and other advanced light sources for higher-performance
semiconductor manufacturing and inspection.
SEMICONDUCTOR PRODUCTS AND PROCESSES - JMAR Semiconductor, Inc. ("JSI")
is a "fabless" supplier of semiconductors using advanced software design tools
and established semiconductor manufacturing facilities (foundries) throughout
the world, focusing on the development and delivery of high performance custom
and standard microcircuits for the telecommunications, commercial and military
marketplaces with emphasis on broadband telecommunications applications. JSI
also provides high value technology services related to semiconductor
fabrication and production processes.
The Company maintains its executive offices at 3956 Sorrento Valley
Boulevard, San Diego, California 92121 and its telephone number is (858)
535-1706. Unless otherwise indicated, all references to the Company include the
Company and its subsidiaries.
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<PAGE> 6
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW, TOGETHER WITH ALL OF
THE OTHER INFORMATION INCLUDED IN OR INCORPORATED BY REFERENCE INTO THIS
PROSPECTUS, BEFORE MAKING AN INVESTMENT DECISION. THE RISKS AND UNCERTAINTIES
DESCRIBED BELOW ARE NOT THE ONLY ONES WE FACE. IF ANY OF THE FOLLOWING RISKS
ACTUALLY OCCUR, OUR BUSINESS COULD BE HARMED. IN SUCH CASE, THE TRADING PRICE OF
OUR COMMON STOCK COULD DECLINE, AND YOU MAY LOSE ALL OR PART OF YOUR INVESTMENT.
- OUR CASH REQUIREMENTS ARE SIGNIFICANT AND IF WE DO NOT GENERATE SUFFICIENT
FUNDS FROM OPERATIONS OR OBTAIN ADDITIONAL FINANCING WE MAY BE UNABLE TO
CONTINUE OUR PRESENT PRODUCT DEVELOPMENT ACTIVITIES OR PURSUE OUR PRESENT
ACQUISITION STRATEGIES.
Our cash requirements have been and will continue to be significant. Our
cash used in operating activities for the years ended December 31, 1997, 1998
and 1999 and for the six months ended June 30, 2000 was $1,951,488, $40,580,
$2,709,394 and $1,639,181, respectively. These negative cash flows are primarily
related to recent operating losses and increases in current assets, primarily
accounts receivable and inventories. To the extent we require additional
financing, in connection with our product development activities or for
acquisitions or otherwise, we cannot assure you that such future financings will
be available to the Company on acceptable terms. The Company incurred a net loss
of $2,248,994 for the year ended December 31, 1999 and a net loss of $778,626
for the six months ended June 30, 2000. Further losses would consume additional
cash and could cause the Company to require additional financing to sustain its
planned levels of product development and acquisition strategies.
- OUR QUARTERLY OPERATING RESULTS MAY FLUCTUATE SIGNIFICANTLY. AS A RESULT, WE
MAY FAIL TO MEET OR EXCEED THE EXPECTATIONS OF SECURITIES ANALYSTS AND
INVESTORS, WHICH COULD CAUSE OUR STOCK PRICE TO DECLINE.
Our quarterly revenues and operating results have fluctuated in the past and
may continue to vary from quarter to quarter due to a number of factors, many of
which are not within our control. If our operating results do not meet the
expectations of securities analysts or investors, our stock price may decline.
Fluctuations in our operating results may be due to a number of factors,
including the following:
o the volume of our product sales and pricing concessions on volume
sales;
o the timing, rescheduling or cancellation of significant customer
orders;
o the gain or loss of a key customer;
o silicon wafer pricing and the availability of foundry and assembly
capacity and raw materials;
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<PAGE> 7
o our ability to specify, develop, complete, introduce, market and
transition to volume production new products and technologies in a
timely manner;
o the rate at which our present and future customers and end users
adopt our technologies and products in our target markets;
o our ability to retain and hire key executives, technical personnel
and other employees in the numbers, with the capabilities and at the
compensation levels that we need to implement our business and
product plans;
o changes in our product or customer mix;
o the level of orders received that we can ship in a fiscal quarter;
o economic and market conditions in the semiconductor product and
semiconductor equipment industries; and
o general economic and market conditions.
- IF WE ARE UNSUCCESSFUL IN ACHIEVING MARKET ACCEPTANCE OF OUR NEW PRODUCTS,
OUR BUSINESS MAY SUFFER.
The markets for certain of the Company's existing 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. We cannot assure you that recent or future additions to the Company's
product lines will achieve significant market acceptance or result in
significantly increased levels of revenues.
- IF OUR PRODUCT DEVELOPMENT PROGRAMS ARE NOT SUCCESSFUL, IT COULD HARM OUR
BUSINESS.
The development of sophisticated laser systems, microelectronics
manufacturing products and semiconductor chips is a lengthy and capital
intensive process and is subject to unforeseen risks, delays, problems and
costs. We cannot assure you that we will be able to successfully develop any
additional products or enhance our existing products, or that unanticipated
technical or other problems will not occur which would result in delays in the
Company's development program.
The Company's x-ray source development program, intended to produce x-ray
sources for semiconductor lithography and for semiconductor inspection and
related processes, has been a technologically challenging effort which has taken
several years to achieve its current results. Additional efforts are ongoing to
increase the x-ray power output of the Company's x-ray sources to meet
commercially viable requirements. Although the Company believes it will resolve
these challenges, the failure to do so within the time demanded by potential
customers could have a material adverse impact on the success of the Company's
efforts to manufacture and sell its x-ray source equipment.
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<PAGE> 8
The Company's efforts to design, fabricate and sell its new semiconductor
products are dependent upon its ability to identify opportunities for new
semiconductor designs, retain a sufficient number of design engineers,
successfully integrate its designs with the manufacturing processes of the
semiconductor foundries it uses, and obtain sufficient production capacity for
its chips. The failure to successfully sell its newly introduced semiconductor
products and to develop, introduce and sell its planned future semiconductor
products would have an adverse impact on the Company.
- WE DEPEND ON THIRD PARTIES FOR MANUFACTURING OUR SEMICONDUCTOR CHIP PRODUCTS
AND OUR SEMICONDUCTOR BUSINESS WILL BE ADVERSELY AFFECTED IF THE MANUFACTURE
OF OUR CHIPS IS INTERRUPTED OR DISCONTINUED.
Our semiconductor manufacturing subsidiary, JMAR Semiconductor, Inc., is a
"fabless" semiconductor operation, meaning that it contracts out the manufacture
of the chips it designs and sells. The demand for outside semiconductor
fabrication is great. Although JMAR Semiconductor, Inc. currently has
established arrangements with certain manufacturers for its initial
requirements, we cannot assure that our requirements will be met beyond the next
several years. The failure to maintain satisfactory arrangements with
semiconductor fabrication facilities at a reasonable cost will adversely impact
the timing of our future semiconductor product introductions and would have an
adverse impact on our business.
- WE DEPEND ON THIRD PARTY SUPPLIERS OF VARIOUS COMPONENTS FOR OUR EQUIPMENT
BUSINESSES AND OUR BUSINESS WILL BE HARMED IF THE SUPPLY OF KEY COMPONENTS
IS INTERRUPTED OR DISCONTINUED.
Our equipment businesses, JMAR Precision Systems, Inc. and JMAR Research,
Inc., are dependent on third party suppliers for components used in the
development and manufacture of our products. If certain key components are
delayed or unavailable, we might have to reengineer our products, resulting in
delays and increased costs, or we may have to pay other suppliers more to obtain
those components, which could adversely affect our business.
- THE SUCCESS OF OUR BUSINESS IS DEPENDENT ON OUR ABILITY TO COMPETE
EFFECTIVELY, PARTICULARLY AGAINST LARGER, MORE ESTABLISHED COMPANIES WITH
GREATER RESOURCES.
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.
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<PAGE> 9
- WE RELY ON FUNDING FROM THE U.S. DEPARTMENT OF DEFENSE FOR A SIGNIFICANT
PORTION OF OUR RESEARCH AND DEVELOPMENT ACTIVITIES AND WOULD BE ADVERSELY
AFFECTED IF THOSE FUNDS WERE CURTAILED IN THE NEAR FUTURE.
Certain of the Company's research and development activities are dependent
on Government sponsorship, particularly by the U.S. Department of Defense
("DOD"). The DOD's overall budget, and the Company's participation therein, are
subject to reduction based upon a number of factors, including general budgetary
constraints, shifting priorities of the specific governmental agency which
sponsors the funding and the Company's own performance under its contracts with
the Government, and there can be no assurance that the Company will continue to
receive funding from Government sources at similar levels in the future.
- IF WE LOSE KEY PERSONNEL OR ARE UNABLE TO ATTRACT AND RETAIN ADDITIONAL,
HIGHLY SKILLED PERSONNEL REQUIRED FOR THE EXPANSION OF OUR ACTIVITIES, OUR
BUSINESS WILL SUFFER.
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 and retaining qualified personnel,
the Company is required to compete with companies having greater financial and
other resources than the Company. Since the future success of the Company is
dependent upon its ability to retain or attract qualified personnel, the
Company's failure to do so could have an adverse impact on the business of the
Company.
- CERTAIN OF OUR BUSINESS AREAS ARE SUBJECT TO GOVERNMENT REGULATIONS AND IF
WE FAIL TO COMPLY WITH THOSE REGULATIONS, THOSE BUSINESS AREAS MAY SUFFER.
Our X-ray lithography program has been funded primarily by government
contracts from the Defense Advanced Research Projects Agency (DARPA) and our
JMAR Semiconductor division has received other government funding in the past
and may receive similar funding in the future. These businesses are subject to
various government regulations in connection with their government R&D contract
work. In addition, these portions of the Company's business are subject to audit
by the U.S. Government (the "Government") of the costs incurred under Government
contracts and to safety audits by various Government agencies. The failure by
the Company to comply with these government regulations could jeopardize
existing and future funding.
- WE RELY IN PART ON FOREIGN SALES AND THAT PART OF OUR BUSINESS COULD BE
HARMED BY ECONOMIC AND POLITICAL INSTABILITY, FLUCTUATIONS IN FOREIGN
CURRENCY, CHANGES IN IMPORT/EXPORT REGULATIONS AND DUTIES AND OTHER TRADE
RESTRICTIONS.
The Company derives a portion of its revenues from shipments to foreign
markets and expects to continue to be dependent upon such markets. Revenues from
shipments to foreign markets were $8,938,375, $7,955,543 and $2,813,687 for the
years ended December 31, 1997, 1998 and
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1999, respectively. Although the Company denominates its foreign shipments in
U.S. dollars, it 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.
- ASSERTING, DEFENDING AND MAINTAINING INTELLECTUAL PROPERTY RIGHTS IS
DIFFICULT AND COSTLY AND THE FAILURE TO DO SO COULD HARM OUR ABILITY TO
COMPETE AND THE RESULTS OF OUR OPERATIONS.
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.
- IF OUR OUTSTANDING OPTIONS AND WARRANTS ARE EXERCISED IT WILL RESULT IN
DILUTION.
As of September 19, 2000, we had outstanding 22,184,842 shares of Common
Stock, substantially all of which are freely tradable without restriction or
further registration under the Securities Act. Affiliates may sell the shares
they own pursuant to Rule 144, subject to certain notice filing and volume
limitations.
As of September 19, 2000, there were 3,169,927 shares of Common Stock
subject to issuance upon exercise of outstanding options and warrants. To the
extent that outstanding options and warrants are exercised prior to their
expiration dates, 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. The exercise of the Company's outstanding
warrants and options and sale of the shares issued upon exercise could adversely
affect the market price of the Common Stock.
- IF PRODUCT LIABILITY CLAIMS ARE BROUGHT WHICH EXCEED OUR LIABILITY INSURANCE
LIMITS THE COMPANY'S BUSINESS WOULD BE HARMED.
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 completely
uninsured successful claim against the Company could have a material adverse
affect on the Company.
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- THE COMPANY DOES NOT PRESENTLY INTEND TO PAY CASH DIVIDENDS TO ITS
SHAREHOLDERS.
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.
- THE COMPANY'S ABILITY TO USE ITS ENTIRE NET OPERATING LOSS CARRYFORWARD IS
LIMITED BY PRIOR CHANGES IN OWNERSHIP AND MAY BE FURTHER LIMITED IN THE
FUTURE.
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.
- IF WE ISSUE SHARES OF PREFERRED STOCK WITH GREATER RIGHTS THAN THE COMMON
STOCK, IT COULD RESULT IN THE DECREASE IN MARKET PRICE OF THE COMMON STOCK
AND COULD DELAY OR PREVENT A CHANGE IN CONTROL OF THE COMPANY.
The Company's Board of Directors is authorized to issue up to 5,000,000
shares of Preferred Stock, of which no shares are currently outstanding. 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.
USE OF PROCEEDS
The shares of Common Stock are being registered by this Registration
Statement to enable the Selling Stockholders to publicly sell these shares
should they choose to do so in the future. The Company will not receive any
proceeds from the sale of Common Stock by the Selling Stockholders.
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SELLING STOCKHOLDERS
The following table sets forth as of September 18, 2000 certain
information regarding the beneficial ownership of the Company's Common Stock by
the Selling Stockholders. Except as provided below, the Selling Stockholders
shown in the table have sole voting and investment power with respect to the
shares.
<TABLE>
<CAPTION>
Number of Number of Percent of
Shares of Percent of Shares Shares
Common Shares of Remaining if Outstanding
Stock Common Number of All Shares if All Shares
Beneficially Stock Shares Being Registered Registered
Name Owned Outstanding Registered Are Sold Are Sold
--------------------------- ------------ ----------- ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Auerbach, Pollak and 189,347 0.85% 189,347 0 0.00%
Richardson, Inc. (1)
Howard Isaacs (2) 154,000 0.69% 15,000 114,000 0.51%
Market Broker Relations (2) 25,000 0.11% 25,000 0 0.00%
</TABLE>
(1) These shares are issuable under a Warrant issued to Auerbach as part of
the fee paid for its services as Warrant Solicitation Agent in
connection with the redemption of the Company's Public Warrants in
March, 2000. The Company is a party to a Registration Rights Agreement
under which the shares listed above are being registered. Neither
Auerbach nor any of its affiliates hold any position or office with the
Company or have any other material relationship with the Company other
than as a holder of the securities listed above.
(2) Mr. Isaacs is the beneficial owner of the shares owned by Market
Broker Relations ("MBR"). The shares listed above are issuable under
Warrants issued in consideration for services rendered to the Company as
an investor relations consultant. Neither Mr. Isaacs, MBR nor any of
their affiliates hold any position or office with the Company or have
any other material relationship with the Company other than as a holder
of the securities listed above.
PLAN OF DISTRIBUTION
Following the date of this Prospectus, the Selling Stockholders 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 Company has
not been advised when, or even whether, the Selling Stockholders intend to sell
such shares.
The Selling Stockholders may pay customary brokerage commissions on the
sale transactions. The Selling Stockholders 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. The Company has
agreed to indemnify Auerbach, Pollak and Richardson, Inc. against certain
liabilities, including those arising under the Securities Act of 1933. If the
Selling Stockholders should, collectively, 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.
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EXPERTS
The consolidated financial statements and schedule of JMAR Technologies,
Inc. as of December 31, 1999 and 1998 and for each of the three years in the
period ended December 31, 1999, incorporated by reference in this prospectus and
the Registration Statement, have been audited by Arthur Andersen LLP,
independent public accountants, as 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.
LEGAL MATTERS
The legality of the Securities offered hereby is being passed upon for
the Company by Joseph G. Martinez, Esq., Vice President and General Counsel of
the Company. Mr. Martinez is an officer of the Company and has beneficial
ownership of 41,189 shares of Common Stock of the Company.
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<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of expenses of the Company
in connection with the issuance and sale of the securities being registered:
<TABLE>
<CAPTION>
Amount
---------
<S> <C>
Securities and Exchange Commission registration fee............... $ 502.55
Printing expenses................................................. 1,000.00
Accounting fees and expenses...................................... 250.00
Legal fees and expenses........................................... 0.00
Miscellaneous expenses............................................ 247.45
Total........................................ $2,000.00
</TABLE>
The amounts are estimated except for the registration fee. The Company
has agreed to pay the above expenses of the Selling Stockholders in connection
with the Offering.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article V of the Bylaws of the Company provides that directors,
officers, employees and agents of the Company or a subsidiary of the Company
shall be indemnified against liabilities incurred by them while acting in such
capacities, including liabilities arising under the Securities Act, except to
the extent prohibited by then applicable law. Article V also provides for the
advance of expenses incurred in defending any proceeding prior to the final
disposition thereof, except to the extent prohibited by then applicable law. The
right of indemnification provided shall not be exclusive of any right the party
may have by law, or under any agreement, insurance policy, vote of the Board of
Directors or Stockholders or otherwise. The Company shall have the power to
purchase and maintain insurance on behalf of any indemnifiable party against any
liability asserted against or incurred by the indemnifiable party in such
capacity.
Section 145 of the Delaware General Corporation Law generally provides
that indemnification will only be available where an officer or director can
establish that he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company.
The Company maintains a director's and officer's liability insurance
policy which indemnifies directors and officers for certain losses arising from
a claim by reason of a wrongful act, as defined, under certain circumstances, in
his capacity as a director or officer of the Company or any of its subsidiaries.
For a description of the SEC's position on indemnification, see the last
paragraph of Item 17, "Undertakings" which is incorporated by reference in
response to this Item 15.
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<PAGE> 15
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
------------ ------------------------------------------------------------------------------
<S> <C>
4.1(1) Form of Common Stock Certificate
4.2(2) Rights Agreement, dated as of February 12, 1999
5.1 Opinion of Joseph G. Martinez, Esq., Vice President and General Counsel of
the Company
23.1 Consent of Joseph G. Martinez is included in Exhibit 5.1 hereto.
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (see signature page in Part II of this Registration
Statement).
</TABLE>
----------
(1) Incorporated by reference to the exhibit filed with the Company's
Registration Statement on Form S-1 (No. 33-47390) filed on April 22,
1992 and amended November 23, 1992, January 11, 1993, January 27, 1993,
February 9, 1993, February 11, 1993, February 12, 1993 and declared
effective on February 16, 1993.
(2) Incorporated by reference to the exhibit filed with the Company's
Registration Statement on Form 8-A filed on March 8, 1999.
ITEM 17. UNDERTAKINGS
The undersigned Company hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10
(a) (3) of the Securities Act 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; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which
was registered) and any deviation from the low or
high end of the estimated maximum
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<PAGE> 16
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424 (b) if, in the aggregate, the changes in
volume and price represent no more than a 20%
change in the maximum aggregate offering price
set forth in the "Calculation of Registration
Fee" table in the 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.
The undersigned Company 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 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.
Insofar as indemnification of liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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<PAGE> 17
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on the 21st day of
September, 2000.
JMAR TECHNOLOGIES, INC.
By: /s/ Dennis E. Valentine
--------------------------------------------
Dennis E. Valentine,
Chief Financial Officer
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<PAGE> 18
POWER OF ATTORNEY
We, the undersigned directors of JMAR Technologies, Inc. and each of us, do
hereby constitute and appoint Joseph G. Martinez and Dennis E. Valentine, or any
one of them, our true and lawful attorneys and agents, each with power of
substitution, to do any and all acts and things in our names and on our behalf
in our capacities as directors and to execute any and all instruments for us and
in our names in the capacities indicated above, which said attorneys and agents,
or any one of them may deem necessary or advisable to enable said corporation to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission, in connection with
this Registration Statement, including specifically, but without limitation,
power and authority to sign for us or any of us in our names in the capacities
indicated below, any and all amendments (including post-effective amendments)
hereto; and we do hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or any one of them, shall do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons on September 21, 2000,
in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ JOHN S. MARTINEZ Chairman of the Board,
------------------------------------------- Chief Executive Officer and
John S. Martinez Director
/s/ DENNIS E. VALENTINE Chief Financial Officer
------------------------------------------- and Principal
Dennis E. Valentine Accounting Officer
/s/ JAMES H. BANISTER, JR. Director
-------------------------------------------
James H. Banister, Jr.
/s/ C. NEIL BEER Director
-------------------------------------------
C. Neil Beer
/s/ VERNON H. BLACKMAN Director
-------------------------------------------
Vernon H. Blackman
/s/ BARRY RESSLER Director
-------------------------------------------
Barry Ressler
</TABLE>
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