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Registration No. 333- ___
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
JMAR TECHNOLOGIES, 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)
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3956 Sorrento Valley Blvd.
San Diego, CA 92121
(Address of principal Executive Offices)
MANAGEMENT ANTI-DILUTION INCENTIVE PLAN
(Full title of the plan)
Joseph G. Martinez
V.P., General Counsel
3956 Sorrento Valley Blvd.
San Diego, CA 92121
(858) 535-1706
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Proposed Maximum Proposed
Title of Securities Amount to be Offering Price Maximum Amount of
to be Registered Registered(1) Per Share(2) Aggregate Offering Registration Fee
Price (2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 424,246 shares $3.00 $1,272,738 $336.00
$.01 par value
====================================================================================================
</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) Solely for purposes of calculating the amount of the registration fee
under Rule 457(h), the price per share and aggregate offering price are
based upon the $3.00 exercise price of all of the 424,246 outstanding
Warrants to purchase Common Stock pursuant to the Company's Management
Anti-Dilution Incentive Plan.
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EXPLANATORY NOTE:
This Registration Statement relates to an employee benefit plan which was
adopted by the Company in 1993. Until March, 2000 the Warrants granted under the
Plan were not exercisable and the Company had no obligation to register these
shares until the Warrants become excercisable.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Items 1 and 2 of Part I
of Form S-8 will be sent or given to plan participants as specified in Rule
428(b)(1) and, in accordance with the instructions to Part I, are not filed with
the Commission as part of this Registration Statement.
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, 1999; and
(b) 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.
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 Registration Statement 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 Registration Statement 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
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Joseph G. Martinez, V.P. and General Counsel of the Company, has
rendered a legal opinion as to the legality of the securities being registered
hereunder. Mr. Martinez is employed as an officer of the Company, owns 6,505
shares of Common Stock of the Company and has options to purchase an aggregate
of 88,500 shares of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Article V of the Company's Bylaws
provides that the Company may indemnify its officers and directors to the full
extent permitted by law. Section 145 of the General Corporation Law of the State
of Delaware (the "GCL") provides that a Delaware corporation has the power to
indemnify its officers and directors in certain circumstances.
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Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no cause to believe his
or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such director or officer acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such director or officer shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action was brought shall determine that despite the
adjudication of liability such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation shall have power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article EIGHTH of the Company's Certificate of Incorporation currently
provides that each director shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the GCL, or (iv) for any transaction from which the director
derived an improper benefit.
The Company currently maintains policies of insurance under which the
directors and officers of the Company 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.
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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; and
(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; 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; and
(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 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
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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 City of San Diego, State of California, on the 31st day of
March, 2000.
JMAR TECHNOLOGIES, INC.
By: /s/ DENNIS E. VALENTINE
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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 March 31, 2000, 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
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EXHIBIT INDEX
No. Description
5 Opinion of Joseph G. Martinez, Esq.,
General Counsel of the Company
24.1 Consent of Joseph G. Martinez, Esq.,
General Counsel of the Company
(contained in Exhibit 5)
24.2 Consent of Arthur Andersen LLP
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Exhibit 5
March 30, 2000
JMAR Technologies, Inc.
3956 Sorrento Valley Boulevard
San Diego, California 92121
Gentlemen:
I am General Counsel to JMAR Technologies, Inc. This opinion is
rendered to you in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of 424,246 shares of the Company's $.01 par value
Common Stock authorized for issuance upon the exercise of warrants (the
"Warrants") granted under the Company's Management Anti-Dilution Incentive Plan
(the "Plan").
In rendering this opinion, I have examined and relied upon, among
other things, originals or copies, identified to my 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, I have, when the relevant facts were not independently established
by me, relied upon the documents I have examined or upon certificates of
officers of the Company. In my examination of the documents referred to above, I
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to me as originals and the conformity with the originals of
all documents submitted to me as copies.
I have investigated such questions of law for the purpose of
rendering this opinion as I have deemed necessary. I am an attorney duly
admitted and qualified to practice in the State of California and I 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, I am of the
opinion that the 424,246 shares of the Company's Common Stock reserved for
issuance under the Plan have been duly and validly authorized and reserved for
issuance upon the exercise of the Warrants and the shares, upon issuance
pursuant to the provisions of the Warrants, including receipt of the required
consideration, will be validly issued, fully paid and non-assessable.
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I hereby consent to the use of my 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 424,246
shares of Common Stock reserved for issuance under the Plan, and may not be
relied upon by any other party or for any other purpose.
Very truly yours,
/s/ JOSEPH G. MARTINEZ
Joseph G. Martinez
General Counsel
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Exhibit 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement, covering the shares
authorized for issuance under the Management Anti-Dilution Incentive Plan, of
our report dated March 22, 2000 included in the JMAR Technologies, Inc. Form
10-K for the year ended December 31, 1999 and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
San Diego, California
March 30, 2000
