-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, End3UvoFqwm5hQfh0Xzfzl56sa0FI8jOUSf434gaj5nEWK1IiC0IvtTzQnNkP8Nt N20TdJlRqA2XtFrxI8vOhg== 0000950124-97-001528.txt : 19970317 0000950124-97-001528.hdr.sgml : 19970317 ACCESSION NUMBER: 0000950124-97-001528 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970314 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: JONES MEDICAL INDUSTRIES INC /DE/ CENTRAL INDEX KEY: 0000793613 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 431229854 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23383 FILM NUMBER: 97557025 BUSINESS ADDRESS: STREET 1: P.O. BOX 46903 STREET 2: 1945 CRAIG RD CITY: ST LOUIS STATE: MO ZIP: 63146 BUSINESS PHONE: 3145766100 MAIL ADDRESS: STREET 1: 1945 CRAIG ROAD CITY: ST. LOUIS STATE: MO ZIP: 63146 S-3 1 S-3 DATED MARCH 14, 1997 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 1997 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 - -------------------------------------------------------------------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 - -------------------------------------------------------------------------------- JONES MEDICAL INDUSTRIES, INC. (Exact name of Registrant as specified in its charter) DELAWARE 43-1229854 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 1945 Craig Road, St. Louis, MO 63146 (314) 576-6100 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) DENNIS M. JONES Jones Medical Industries, Inc. 1945 Craig Road St. Louis, MO 63146 (314) 576-6100 (Name, address, including zip code, and telephone number, including area code, of agent for service) With copies of communications to: CHARLES E. H. LUEDDE, ESQ. Greensfelder, Hemker & Gale, P.C. 10 South Broadway, Suite 2000 St. Louis, Missouri 63102 314-241-9090 ----------------------- Approximate date of commencement of proposed sale to the public: As promptly as practicable after this Registration Statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [x] If this Form is filed to registered additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of earlier effective registration statement for the same offering. [ ] _________________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of earlier effective registration statement for the same offering. [ ] _________________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ]
------------------ CALCULATION OF REGISTRATION FEE ============================================================================================================== Title of Each Amount Proposed Maximum Proposed Maximum Amount of Class of Securities to be Offering Price Aggregate Registration to be Registered Registered Per Unit (1) Offering Price Fee - -------------------------------------------------------------------------------------------------------------- Common Stock, $.04 par value 291,250 shares $27.875 $8,118,563.75 $2,460.18 ==============================================================================================================
(1) Calculated in accordance with Rule 457(c) under the Securities Act of 1933, as amended, solely for purposes of calculation of the registration fee. Based upon the average of the high and low sales prices as reported by the Nasdaq National Market for March 13, 1997. ------------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. 2 INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THIS PROSPECTUS SHALL NOT CONSTITUTE AN ORDER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE. 3 SUBJECT TO COMPLETION, DATED MARCH 14, 1997 PROSPECTUS 291,250 SHARES JONES MEDICAL INDUSTRIES, INC. COMMON STOCK, $.04 PAR VALUE This Prospectus relates to the offering by certain shareholders named within (the "Selling Shareholders") of an aggregate of 291,250 shares (the "Shares") of Common Stock, $.04 par value (the "Common Stock") of Jones Medical Industries, Inc. (the "Company"). The Common Stock is traded in the over-the-counter market and is quoted on the Nasdaq National Market System ("Nasdaq NMS") under the symbol JMED. The last reported sales price for the Common Stock on March __, 1997, as reported by the Nasdaq NMS was ______. The offering, sale and distribution of the Shares is expected to occur from time to time following the date of this Prospectus and prior to December 31, 1997. See "Plan of Distribution." Proceeds from the offering, sale and distribution of the Shares are expected to be received by or for the respective accounts of the Selling Shareholders. The Company will not receive any portion of the proceeds of the offering. ------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. -------------------- NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDERS. NEITHER THE DELIVERY OF THE PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. ----------------- THE DATE OF THIS PROSPECTUS IS MARCH ___, 1997. 4 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith, files reports and other information with the Securities and Exchange Commission (the "Commission"). The reports, proxy statements and other information filed by the Company with the Commission can be inspected and copied at the Public Reference Room of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C., 20549 and at the commission's regional offices at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, Suite 1300, New York, New York 10048. Copies of such material can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The Common Stock of the Company is traded on the Nasdaq National Market and such reports, proxy statements and other information can also be inspected at the office of the National Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006. The Company has filed with the Commission a Registration Statement on Form S-3 (together with any amendments thereto, the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Shares offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement, certain portions of which have been omitted as permitted by the rules and regulations of the Commission. Such additional information may be obtained from the Commission's principal office in Washington, D.C. The Registration Statement, including the exhibits thereto, and other reports, proxy statements and filings made by the Company are also generally available pursuant to the Commission's electronic data gathering, analysis and retrieval system known as "EDGAR." Statements contained or incorporated by reference in this Prospectus as to the contents of any contract or other document referred to herein or therein are not necessarily complete, and in each such instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement or such other document, each such statement being qualified in all respects by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE This Registration Statement incorporates by reference certain documents which are not presented herewith or delivered herewith. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. The following documents, which have been filed by the Company with the Commission pursuant to the 1934 Act, are hereby incorporated by reference in this Registration Statement: 1. Company's Annual Report on Form 10-K for the year ended December 31, 1996; 2. All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the Company's fiscal year ended December 31, 1996; and 3. Description of the Company's Common Stock contained in the Company's Proxy Statement dated April 15, 1991. In addition to the foregoing documents, there is also incorporated herein by reference any additional reports or proxy statements filed by the Company under Sections 13, 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior to the termination of the offering. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration 2 5 Statement to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated herein, modified or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as modified or superseded, to constitute a part of this Registration Statement. Copies of any such documents, other than exhibits to such documents, are available without charge upon request from Jones Medical Industries, Inc., 1945 Craig Road, St. Louis, Missouri 63146, Attention: Judith A. Jones, Secretary (telephone: 314-576-6100). ----------------- THE COMPANY The Company is engaged in the manufacture, marketing and sale of pharmaceuticals and nutritional supplements. The Company's principal executive offices are located at 1945 Craig Road, St. Louis, Missouri 63146, and its telephone number is (314) 576-6100. THE SELLING SHAREHOLDERS The Selling Shareholders are the respective beneficial owners named in the table below. The table reflects the aggregate number of shares of Common Stock held by each such beneficial owner, the number of shares included as part of the Shares and the number of shares to be held by such beneficial owner upon completion of the offering (assuming the sale of all Shares). The table also reflects the percentage of the Common Stock currently owned and the percentage to be owned upon completion of the offering (assuming the sale of all Shares) based in each case upon the number of shares of Common Stock outstanding as of the close of business on March 3, 1997. In accordance with regulations adopted by the Commission, beneficial ownership is based upon a person's ability either to direct the voting of shares or to make investment decisions relating to the acquisition or sale of such shares and, as such, does not necessarily reflect an interest in the income or value of such shares.
Shares Shares to be Owned Owned* After Sale -------------------- ------------------- Shares Name of Shareholder(1) number percent+ Offered number percent+ - ---------------------- ------ -------- ------- ------ -------- Dale E. Eads 145,625 0.51 145,625 ----- ----- (address) Perry N. Cole 145,625 0.51 145,625 ----- ----- (address) All Selling Shareholders as a Group......... 291,250 1.02% 291,250 ----- -----
Notes: * As of March 3, 1997. + Based on 28,569,651 shares outstanding as of March 3, 1997. In addition to the Selling Shareholders named above, the term Selling Shareholders as used in this Prospectus shall include any donee, charitable or otherwise, receiving shares as a gift from a Selling Shareholder named above. The Shares being offered by the Selling Shareholders represent shares of the Company's stock received by them in exchange for their ownership interests in Abana Pharmaceuticals, Inc. ("Abana") which was acquired by the Company as of December 31, 1996. Because Messrs. Eads and Cole owned more than a majority of the outstanding 3 6 common stock of Abana and took action by written consent to provide necessary shareholder approval of the acquisition of Abana by the Company, such shares were not eligible for inclusion in the Registration Statement on Form S-4 filed by the Company in connection with the transaction. As part of the agreements relating to the acquisition of Abana, the Company agreed to register such shares for resale following the filing of the Company's Form 10-K for the year ended December 31, 1996, and (subject to certain conditions) to keep such registration in effect until such shares become eligible for sale under Rule 144 under the Securities Act of 1933. Neither Mr. Eads nor Mr. Cole is employed by the Company. PLAN OF DISTRIBUTION The Company is not participating in the offering, sale or distribution of the Shares and will not receive any proceeds therefrom. The Company is advised by the Selling Shareholders that the distribution of the Shares will occur as follows. The Shares may be sold from time to time by or for the accounts of the Selling Shareholders. Such sales may be made in the Nasdaq NMS or otherwise, at prices and at terms then prevailing or related to the then current market price, or in negotiated transactions. The shares may be sold by one or more of the following: (a) a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent for the Selling Shareholder but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker-dealer and resale by such broker-dealer for its account pursuant to this Prospectus; (c) ordinary brokerage transactions and transactions in which the broker solicits purchasers; or (d) private transactions. In effecting sales, broker-dealers engaged by the Selling Shareholders may arrange for other broker-dealers to participate in the resales. The Selling Shareholders have severally advised the Company that as of the date of this Prospectus each Selling Shareholder is acting independently with respect to the nature, terms and timing of transactions constituting the offer, distribution and sale of the Shares. However, as of the date of this Prospectus, no Selling Shareholder has any commitment or contractual arrangement with any broker dealer with respect to the Shares offered hereby. In addition to sales of Shares to be made by the Selling Shareholders, a Selling Shareholder may also make charitable or other gifts of Shares and the recipient of such a gift may elect to sell such Shares as provided above. Any such sale by a recipient of a gift from a Selling Shareholder may be deemed to be in connection with the distribution contemplated hereby and must be accompanied by the delivery of a Prospectus. In the event that a recipient of Shares as a result of a gift from a Selling Shareholder does not complete a sale of such Shares prior to December 31, 1997, the sale on behalf of such recipient may be made under Rule 144 under the Securities Act of 1933 rather than pursuant to the Registration Statement of which this Prospectus is a part. In connection with distributions of the Shares or otherwise, the Selling Shareholders have advised the Company that they may enter into hedging transactions with broker-dealers. In connection with such transactions, broker-dealers may engage in short sales of the Shares registered hereunder in the course of hedging positions they assume with Selling Shareholders. The Selling Shareholders may also borrow and sell shares of the Common Stock of the Company and redeliver the Shares to close out such short positions. The Selling Shareholders may also enter into option or other transactions with broker-dealers which require the delivery to such broker-dealer of Shares registered hereunder, which the broker-dealer may resell pursuant to this Prospectus. A Selling Shareholder may also loan or pledge the shares registered hereunder to a bank or broker-dealer and such bank or broker-dealer may sell the Shares so loaned or, upon a default under the terms of any pledge, the bank or broker-dealer may effect sales of the pledged Shares pursuant to this Prospectus. In connection with the distribution of the Shares offered hereby, broker-dealers may receive compensation in the form of commissions, discounts or concessions from the Selling Shareholders in amounts to be negotiated in connection with the sale or other transaction. Such broker-dealers and any other broker-dealers participating in such transactions may be deemed to be "underwriters" with respect to the Shares within the meaning of the Securities Act 4 7 of 1933, as amended (the "Act"), and any such commissions, discounts or concessions may be deemed to be underwriting discounts or commissions under the Act. All costs, expenses and fees in connection with the registration of the Shares under the Act and the printing of this Prospectus will be borne by the Company. Notwithstanding the foregoing, commissions and discounts, if any, attributable to the sale or distribution of the Shares will be borne by the Selling Shareholders. The Selling Shareholders will also be responsible for fees and expenses of counsel and other advisors to such Selling Shareholders, the cost of any review of distribution or offering arrangements required under the rules of the National Association of Securities Dealers, Inc., and for the cost of any amendment to the registration resulting from a change in the proposed plan of distribution or from other action by a Selling Shareholder. The Selling Shareholders may agree to indemnify any broker-dealer or agent participating in the sale or distribution of the Shares against certain liabilities, including liabilities arising under the Act. The Selling Shareholders have agreed to indemnify the Company against certain liabilities, including liabilities arising under the Act, based upon information supplied to the Company by the Selling Shareholders for inclusion in the registration of the Shares under the Act. The Company has agreed to maintain the registration of the Shares under the Act in effect until the earlier of (i) the date upon which the sale or distribution of the Shares by the Selling Shareholders has been completed or is terminated at the request of such Selling Shareholders or (ii) December 31, 1998. In the event that the exemption from registration provided by Rule 144 under the Act becomes available to the Selling Shareholders prior to December 31, 1998, Shares may be sold under Rule 144 rather than pursuant to this Prospectus. Recent amendments to Rule 144 adopted by the Securities and Exchange Commission will make Rule 144 available to the Selling Shareholders on or before December 31, 1997. In connection with such agreement, the Selling Shareholders have agreed with the Company not to engage (or to permit any broker-dealer or agent acting on their behalf to engage) in offers or sales of the Shares during certain periods during or following a period in which (a) the Company is engaged in a registered offering or distribution of equity securities for its own account, whether for cash or in connection with an acquisition or (b) the information provided by a Selling Shareholder for inclusion in the registration is inaccurate or incomplete. Each Selling Shareholder has further agreed to advise the Company promptly with respect to sales of Shares by or for the account of such Selling Shareholder, including transactions which result in "short against the box" positions. CERTAIN LEGAL MATTERS The validity of the Common Stock being offered hereby will be passed upon for the Company by Greensfelder, Hemker & Gale, P.C., 2000 Equitable Building, 10 South Broadway, St. Louis, Missouri 63102. Greensfelder, Hemker & Gale, P.C. and certain of its officers own, beneficially, an aggregate of approximately 55,000 shares of Common Stock. In addition, Edward A. Chod, an officer of Greensfelder, Hemker & Gale, P.C. is a director of the Company. EXPERTS The consolidated financial statements of the Company appearing in the Company's Annual Report (Form 10-K) for the year ended December 31, 1996 have been audited by Ernst & Young LLP independent auditors, as set forth in their report thereon and included therein and incorporated herein by reference which, insofar as it relates to the amounts included for Galen Drugs of Florida, Inc., as of September 30, 1995 and for each of the two years in the period then ended, is based in part on the report of Hacker, Johnson, Cohen & Grieb, independent auditors. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. 5 8 PART II ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth the estimated expenses (other than commissions, discounts, selling concessions or other payments made or allowed to participating broker-dealers) in conjunction with the securities subject to this Registration Statement as follows: Registration Fee $ 2,460.18 Legal Fees and Expenses of Issuer 3,000.00 Accounting Fees and Expenses 5,000.00 Printing and Filing Costs 2,500.00 Miscellaneous 639.82 Legal Fees and Expenses of Selling Shareholders 1,500.00 ---------- Total $15,000.00 Except for the Legal Fees and Expenses of Selling Shareholders, the foregoing expenses will be borne by the Registrant. In the event that the distribution arrangements relating to the offer and sale of the shares becomes subject to review by the National Association of Securities Dealers, Inc., the filing fee with respect thereto and any related expenses will be borne by the Selling Shareholders. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS The provisions of Section 145 of Chapter One of Title 8 of the Delaware Code, amended (Section 145 of the General Corporation Law of the State of Delaware), read as follows: Section 145. Indemnification of officers, directors, employees and agents; insurance. (a) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Page II-1 9 (b) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made (1) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directors, by independent legal counsel in a written opinion, or (3) by the stockholders. (e) Expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director, officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate. (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this section. Page II-2 10 (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (Last amended by Ch. 289, L. '86, eff. 7-1-86). See also Exhibit 10.1 filed herewith for the form of certain indemnification of the Registrant and its directors and officers by the Selling Shareholders. ITEM 16. EXHIBITS 5.1 Opinion and consent of Greensfelder, Hemker & Gale, P.C. 10.1 Form of Letter Agreement between the Issuer and each Selling Shareholder named in the Registration Statement 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Hacker, Johnson, Cohen & Grieb. 23.3 Consent of Greensfelder, Hemker & Gale, P.C. (included in Exhibit 5.1). ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; Page II-3 11 (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that undertakings 1(i) and 1(ii) above do not apply to this Registration Statement if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. Page II-4 12 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the County of St. Louis, State of Missouri, on the 14th day of March, 1997. JONES MEDICAL INDUSTRIES, INC. By: s/DENNIS M. JONES --------------------------- Dennis M. Jones, President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated: SIGNATURES TITLE DATE ---------- ----- ---- [S] [C] [C] /s/ Dennis M. Jones Chairman of the Board March 10, 1997 - --------------------------- President, Chief Executive Dennis M. Jones, President Officer and Director /s/ Judith A. Jones Principal Financial Officer, March 10, 1997 - --------------------------- Executive Vice President, Judith A. Jones Secretary, Treasurer and Director /s/ Michael T. Bramblett Executive Vice President and March 10, 1997 - --------------------------- Director Michael T. Bramblett /s/ Edward A. Chod Director March 10, 1997 - --------------------------- Edward A. Chod /s/ G. Andrew Franz Senior Vice President - March 10, 1997 - --------------------------- Operations - Pharmaceuticals G. Andrew Franz and Director /s/ David A. McLaughlin Senior Vice President - March 10, 1997 - --------------------------- Operations - Nutritionals and David A. McLaughlin Director - --------------------------- Director Stanley Lopata - --------------------------- Director L. John Polite, Jr. - --------------------------- Director Thomas F. Patton Page II-5 EX-5.1 2 OPINION OF GREENSFELDER, HEMKER & GALE 1 EXHIBIT 5.1 [LETTERHEAD OF GREENSFELDER, HEMKER & GALE, P.C.] March, 14, 1997 Jones Medical Industries, Inc. 1945 Craig Road St. Louis, Missouri 63141 Gentlemen: We are acting as counsel for Jones Medical Industries, Inc. (the "Company") in connection with the registration of an aggregate of 291,250 shares of its Common Stock, $.04 par value (the "Shares"), under the Securities Act of 1933, as amended, pursuant to a Registration Statement on Form S-3 filed on March 14, 1997. The Shares represent a portion of the shares issued pursuant to the transactions contemplated by the Plan of Reorganization and Agreement (the "Agreement") dated as of October 24, 1996, by and among the Company, Abana Pharmaceuticals, Inc., Dale E. Eads and Perry N. Cole and consist of the shares issued pursuant to such Agreement which were not eligible for inclusion in the Company's Registration Statement on Form S-4 filed on November 8, 1996. The Shares are presently outstanding and are to be offered for the respective accounts of the Selling Shareholders named in the Registration Statement. We have examined all proceedings with respect to the due incorporation of the Company under the laws of the State of delaware, minutes of the Company's Board of Directors and stockholders, the Agreement and the issuance of the Shares at the time of Closing thereunder, and such other papers and records as we deem relevant to the opinion set forth below. Based upon the foregoing, it is our opinion that the Shares are validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours GREENSFELDER, HEMKER & GALE, P.C. EX-10.1 3 FORM OF LETTER AGREEMENT 1 EXHIBIT 10.1 Form of Letter Agreement between the Issuer and each Selling Shareholder March __, 1997 Jones Medical Industries, Inc. 1945 Craig Road St. Louis, Missouri 63146 Gentlemen: The undersigned is a "Selling Shareholder" of the Common Stock, $.04 par value (the "Common Stock") of Jones Medical Industries, Inc. (the "Issuer") as such term is defined in the Registration Statement on Form S-3 filed with the Securities and Exchange Commission on March __, 1997 (Registration No. 333-_______) (the "Registration Statement"). The Registration Statement relates to the offer, sale and distribution by all Selling Shareholders of an aggregate of 291,250 shares (the "Shares") of the Issuer's Common Stock under the Securities Act of 1933 (the "Act"). The Shares constitute a portion of the Issuer's Common Stock issued pursuant to that certain Plan of Reorganization and Agreement (the "Agreement") dated October 24, 1996, by and among Abana Pharmaceuticals, Inc., Dale E. Eads and Perry N. Cole, and the Issuer. In accordance with the Agreement, as an inducement to the Issuer to agree to: (i) prepare and file the Registration Statement; (ii) use its best efforts to keep the registration of the Shares under the Act current and effective until the earlier of: (A) the date upon which the sale or distribution of the Shares by all Selling Shareholders has been completed or is terminated at the request of all Selling Shareholders; or (B) August 30, 1998; and (iii) bear the costs, expenses and fees in connection with the registration of the Shares under the Act, which costs, expenses and fees shall include: (A) the filing fee due the Securities and Exchange Commission; (B) the fees and expenses of the Issuer's counsel and accountants in connection with the preparation, review and filing of the Registration Statement; and (C) the costs of electronic filing of the Registration Statement and printing costs with respect to the prospectus included in the Registration Statement, the undersigned hereby covenants and agrees with you that: 1. The undersigned will provide to the Issuer such information as it may reasonably request or that is required for inclusion in the Registration Statement; 2. The undersigned will indemnify and hold the Issuer and its directors, officers, employees and authorized agents harmless from and against any loss, claim, damage, liability or expense suffered by the Issuer or its directors, officers, employees and authorized agents in connection with the offer, sale and distribution of Shares under the Act as contemplated in the Registration Statement, including reasonable attorney's fees and expenses incurred by the Issuer in the defense of such claims, and arising from: (a) the 2 undersigned's failure to observe, perform and discharge its covenants and agreements set forth herein; and (b) any misstatement of fact, or the failure to state a fact necessary to make the statements of fact not misleading, relating to his participation and proposed manner of sale as set forth under the captions "The Selling Shareholders" and "Plan of Distribution"; 3. The undersigned will bear the expense, incurred by or on behalf of the undersigned, of any counsel fees and brokerage commissions or other expenses in connection with the sale of the registered Shares, including, without limitation, the cost of any review of offering or brokerage arrangements by the National Association of Securities Dealers, Inc.; 4. The undersigned will be responsible for costs incurred in connection with any amendment to the Registration Statement arising from any change in the proposed manner of offering or distribution or any withdrawal of Shares from registration and will reimburse the Issuer for its reasonable out of pocket expenses (including fees of counsel and accountants and printing expenses) in connection with amending the Registration Statement and prospectus included therein; 5. The undersigned will not engage (or permit any broker-dealer or agent acting on its behalf to engage) in offers or sales of the Shares during: (a) the forty-five (45) days following the effective date of any registration statement filed by the Issuer relating to an offering or distribution of equity securities for its own account, whether for cash or in connection with an acquisition, provided that the Issuer has given notice to the undersigned of such effective date; or (b) any period in which the information provided by any of the Selling Shareholders (including, without limitation, the undersigned) to the Issuer for inclusion in the Registration Statement is inaccurate or incomplete; and 6. The undersigned will advise the Issuer promptly of any sales of Shares by or for its account , including so-called "short against the box" transactions. The undersigned further acknowledges the foregoing covenants and agreements are intended to constitute its binding contract and agreement with you and that you shall be entitled to enforce the provisions hereof and in the event of any enforcement proceeding arising from the undersigned's failure to perform in accordance with this contract and agreement you shall be entitled, in addition to such other remedies as may be available, to recover your costs and expenses (including without limitation attorney's fees and expenses) in connection with any proceeding seeking enforcement against the undersigned. 3 The undersigned further represents and warrants that the information set forth in the Registration Statement and prospectus included therein under the captions "Selling Shareholders" and "Plan of Distribution" is true, correct and complete and does not include any misstatement of a material fact or omit to include any statement necessary to make the statements therein not misleading. Very truly yours, By: ____________________ Name: ____________________ Title: ____________________ AGREED TO AND ACCEPTED BY THE ISSUER THIS ___ DAY OF MARCH, 1997. By: __________________ Name: Dennis M. Jones Title: President EX-23.1 4 CONSENT OF ERNST & YOUNG 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3, No. 333-_____) and related Prospectus of Jones Medical Industries, Inc. for the registration of 291,250 shares of its common stock and to the incorporation by reference therein of our report dated February 14, 1997 with respect to the consolidated financial statements and schedule of Jones Medical Industries, Inc. in its Form 10-K for the year ended December 31, 1996. St. Louis, Missouri March 10, 1997 ERNST & YOUNG LLP EX-23.2 5 CONSENT OF HACKER, JOHNSON, ET AL 1 EXHIBIT 23.2 Independent Auditors' Consent The Board of Directors Jones Medical Industries, Inc.: We consent to the use of our report dated April 25, 1996, except for Note 16 as to which the date is July 30, 1996, with respect to the consolidated balance sheet of Galen Drugs of Florida, Inc. and subsidiaries as of September 30, 1995 and the related consolidated statements of earnings, stockholders' equity, and cash flows for the years ended September 30, 1995 and 1994, which report appears in the Annual Report on Form 10-K for the year ended December 31, 1996 of Jones Medical Industries, Inc., incorporated by reference in your Form S-3 dated March 14, 1997. Hacker, Johnson, Cohen & Grieb Tampa, Florida March 12, 1997 -----END PRIVACY-ENHANCED MESSAGE-----