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As filed with the Securities and Exchange Commission on June 12, 2000
Registration No. 333-34828
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CIMA LABS INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 41-1569769
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation)
10000 VALLEY VIEW ROAD
EDEN PRAIRIE, MINNESOTA 55344-9361
(952) 947-8700
(Address and Telephone Number of Principal Executive Offices)
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John M. Siebert, Ph.D.
Chief Executive Officer
CIMA LABS INC.
10000 Valley View Road
Eden Prairie, Minnesota 55344-9361
(952) 947-8700
(Name, Address, and Telephone Number of Agent for Service)
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copy to:
Gale R. Mellum, Esq.
Gordon S. Weber, Esq.
Faegre & Benson LLP
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
(612) 336-3000
Fax (612) 336-3026
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Approximate date of commencement of proposed sale to the
public: From time to time 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 filed to register 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 the earlier effective
registration statement for the same offering. | |
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If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. | |
-------------------------------
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.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to completion. Dated June 12, 2000.
PROSPECTUS
1,100,000 SHARES
CIMA LABS INC.
COMMON STOCK
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The stockholders named on page 13 are selling up to 1,100,000
shares of our common stock.
Our common stock is traded on the Nasdaq National Market under
the symbol "CIMA." On June 9, 2000, the last sale price for the common stock, as
reported on the Nasdaq National Market, was $19.75 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 2 FOR FACTORS YOU SHOULD
CONSIDER BEFORE BUYING SHARES OF THE COMMON STOCK.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
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, 2000
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CIMA LABS INC.
We develop and manufacture fast-dissolve and
enhanced-absorption oral drug delivery systems. OraSolv and DuraSolv, our
leading proprietary fast-dissolve technologies, are oral dosage forms
incorporating taste-masked active drug ingredients into tablets which dissolve
quickly in the mouth without chewing or water. We currently manufacture and
package five commercial products incorporating our proprietary fast-dissolve
technologies with active drug ingredients developed by other companies. We
develop applications for our technologies that we license to pharmaceutical
company partners. We generate revenue from licensing fees, product development
fees, selling products we have manufactured that use our fast-dissolve
technologies and royalties.
We were incorporated in Delaware in 1986. Our executive offices are
located at 10000 Valley View Road, Eden Prairie, Minnesota 55344-9361. Our
telephone number is (952) 947-8700 and our web site is www.cimalabs.com. The
information on our website is not incorporated into and is not intended to be a
part of this prospectus.
RISK FACTORS
You should consider carefully the following risks before you decide to
buy our common stock. We believe that the risks we describe below currently are
particularly relevant to us. However, we are also subject to general business
and economic risks and uncertainties that confront many or all other companies.
In addition, the risks and uncertainties we face may change as our business
changes. Risks and uncertainties in addition to those we discuss below may
impair our business operations and our ability to achieve sustained
profitability. This could cause the trading price of our common stock to
decline and you may lose all or part of the money paid to buy our common stock.
RISK RELATED TO OUR COMPANY
BECAUSE WE HAVE A LIMITED OPERATING HISTORY, POTENTIAL INVESTORS IN OUR STOCK
MAY HAVE DIFFICULTY EVALUATING OUR PROSPECTS.
We recorded the first commercial sales of products using our
fast-dissolve technologies in early 1997. Accordingly, we have only a limited
operating history, which may make it difficult for you and other potential
investors to evaluate our prospects. The difficulty investors may have in
evaluating our prospects may cause volatile fluctuations, including decreases,
in the market price of our common stock as investors react to information about
our prospects. Since 1997, we have generated revenues from product development
fees, licensing arrangements, sales of products using our fast-dissolve
technologies and from royalties. We are currently making the transition from
research and product development operations with limited production to
commercial operations with expanding production capabilities in addition to
research and product development activities. Our business and prospects,
therefore, must be evaluated in light of the risks and uncertainties of a
company with a limited operating history and, in particular, one in the
pharmaceutical industry. We discuss many of these risks that are particularly
relevant to us in the subheadings below. However, we are also subject to general
business risks and uncertainties. You should evaluate any potential investment
in our common stock accordingly.
IF WE ARE NOT PROFITABLE IN THE FUTURE, THE VALUE OF YOUR INVESTMENT IN OUR
STOCK MAY FALL.
We have not been profitable for much of our past. If we are not
profitable in the future, the market price of our stock may fall. We have
accumulated aggregate net losses from inception through March 31, 2000 of
approximately $46 million. The costs for research and product development of our
drug delivery technologies and general and administrative expenses have been the
principal causes of our losses. Our
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ability to achieve sustained profitable operations depends on a number of
factors, many of which are beyond our direct control. These factors include:
- the demand for our products;
- our ability to manufacture our products efficiently and with the
required quality;
- our ability to increase our manufacturing capacity;
- the level of product and price competition;
- our ability to develop additional commercial applications for our
products;
- our ability to control our costs; and
- general economic conditions.
WE MAY REQUIRE ADDITIONAL FINANCING, WHICH MAY NOT BE AVAILABLE ON FAVORABLE
TERMS OR AT ALL AND WHICH MAY RESULT IN DILUTION OF YOUR EQUITY INTEREST.
We may require additional financing to fund expected increases in
operating expenses and capital expenditures as we commercialize additional
applications of our drug delivery technologies and increase our production
capacity. If we cannot obtain financing when needed, or obtain it on favorable
terms, we may be required to curtail our development of new drug delivery
technologies or our expansion of manufacturing capacity. Further, if we issue
equity securities, our stockholders may experience dilution. We believe our cash
and cash equivalents, together with the net proceeds from our private placement
of common stock in March, 2000 and expected revenues from operations, will be
sufficient to meet our anticipated capital requirements for the foreseeable
future. However, we may elect to pursue additional financing at any time to more
aggressively pursue development of new drug delivery technologies and expand
manufacturing capacity beyond that currently planned.
Other factors that will affect future capital requirements and may
require us to seek additional financing include:
- the level of expenditures necessary to develop new products or
technologies;
- the progress of our research and product development programs;
- the need to construct a larger than currently anticipated
manufacturing facility to meet demand for our products;
- results of our collaborative efforts with current and potential
pharmaceutical company partners; and
- the timing of, and amounts received from, future product sales,
product development fees and licensing revenue and royalties.
THE LOSS OF ONE OF OUR MAJOR CUSTOMERS COULD REDUCE OUR REVENUES SIGNIFICANTLY.
Revenues from AstraZeneca, N.V. Organon and Novartis together
represented over 85% of our total revenues for the year ended December 31, 1999.
The loss of any one of these customers could cause our revenues to decrease
significantly, resulting in, or increasing, our losses from operations. If we
cannot broaden our customer base, we will continue to depend on a few customers
for the majority of our revenues. We may be unable to negotiate favorable
business terms with customers that represent a significant portion of our
revenues. If we cannot, our revenues and gross profits may be insufficient to
allow us to achieve sustained profitability.
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IF WE DO NOT ENTER INTO ADDITIONAL COLLABORATIVE AGREEMENTS WITH PHARMACEUTICAL
COMPANIES, WE MAY NOT BE ABLE TO ACHIEVE SUSTAINED PROFITABILITY.
We depend upon collaborative agreements with pharmaceutical companies
to develop, test, obtain governmental approval for, and commercialize oral
dosage forms of, active pharmaceutical ingredients using our drug delivery
technologies. The number of products that we successfully develop under these
collaborative agreements will affect our revenues. If we do not enter into
additional agreements in the future, or if our current or future agreements do
not result in successful marketing of our products, our revenues and gross
profits may be insufficient to allow us to achieve sustained profitability. We
currently have collaborative agreements with American Home Products,
AstraZeneca, Bristol-Myers Squibb, N.V. Organon, Novartis and Schering-Plough.
Additional risks that we face related to our collaborative agreements
include:
- we may not be able to enter into collaborative agreements to
develop additional products using our drug delivery technologies;
- any existing or future collaborative agreements may not result in
additional commercial products;
- additional commercial products that we may develop may not be
successful;
- we may not be able to meet the milestones established in our
current or future collaborative agreements; and
- we may not be able to successfully develop new drug delivery
technologies that will be attractive to potential pharmaceutical
company partners.
WE RELY ON THIRD PARTIES TO MARKET, DISTRIBUTE AND SELL THE PRODUCTS
INCORPORATING OUR DRUG DELIVERY TECHNOLOGIES AND THOSE THIRD PARTIES MAY NOT
PERFORM.
Our pharmaceutical company partners help us develop, manufacture and
sell our products. If one or more of our pharmaceutical company partners fails
to pursue the development or marketing of our products as planned, our revenues
and gross profits may not reach our expectations, or may decline. We sometimes
cannot control the timing and other aspects of the development of products
because our pharmaceutical company partners may have priorities that differ from
ours. Therefore, our commercialization of products under development may be
delayed unexpectedly. Further, we incorporate our drug delivery technologies
into the oral dosage forms of products marketed and sold by our pharmaceutical
company partners. We do not have a direct marketing channel to consumers for our
drug delivery technologies. Therefore, the success of the marketing
organizations of our pharmaceutical company partners, as well as the level of
priority assigned to the marketing of our products by these entities, which may
differ from our priorities, will determine the success of the products
incorporating our technologies.
IF WE CANNOT INCREASE OUR PRODUCTION CAPACITY, WE MAY BE UNABLE TO MEET EXPECTED
DEMAND FOR OUR PRODUCTS AND WE MAY LOSE REVENUES.
We must increase our production capacity to meet expected demand for
our products. We currently have one production line and a second line is being
developed. If we are unable to increase our production capacity as scheduled, we
may be unable to meet expected demand for our products, we may lose revenues and
we may not be able to maintain our relationships with our pharmaceutical company
partners on good terms. Production lines in the pharmaceutical industry
generally take 16 to 24 months to complete because of the long lead times
required for precision production equipment and the lengthy testing and approval
process. We expect our second production line to be operational in the second
half of 2001, although we may experience difficulties that could delay our
ability to increase our manufacturing capacity. We may not
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be able to increase our production capacity quickly enough to meet the
requirements of our pharmaceutical company partners with whom we are developing
our drug delivery technologies.
WE HAVE A SINGLE MANUFACTURING FACILITY AND WE MAY LOSE REVENUES AND BE UNABLE
TO MAINTAIN OUR RELATIONSHIPS WITH OUR PHARMACEUTICAL COMPANY PARTNERS IF WE
LOSE ITS PRODUCTION CAPACITY.
We manufacture all of the products that we produce on our existing
production line in our Eden Prairie facility. If our existing production line or
facility becomes incapable of manufacturing products for any reason, we may be
unable to meet production requirements, we may lose revenues and we may not be
able to maintain our relationships with our pharmaceutical company partners.
Without our existing production line, we would have no other means of
manufacturing products incorporating our drug delivery technologies until we
were able to restore the manufacturing capability at our facility or develop an
alternative manufacturing facility. Although we carry business interruption
insurance to cover lost revenues and profits in an amount we consider adequate,
this insurance does not cover all possible situations. In addition, our business
interruption insurance would not compensate us for the loss of opportunity and
potential adverse impact on relations with our existing pharmaceutical company
partners resulting from our inability to produce products for them.
WE RELY ON A SINGLE SOURCE FOR SOME OF OUR RAW MATERIALS, WE MAY LOSE REVENUES
AND WE MAY NOT BE ABLE TO MAINTAIN OUR RELATIONSHIP WITH OUR PHARMACEUTICAL
COMPANY PARTNERS IF THOSE MATERIALS WERE NOT AVAILABLE FROM THEIR CURRENT
SOURCE.
We rely on single suppliers for some of our raw materials and
packaging supplies. If these raw materials or packaging supplies were no longer
available we may be unable to meet production requirements, we may lose revenues
and we may not be able to maintain our relationships with our pharmaceutical
company partners. Without adequate supplies of raw materials or packaging
supplies, our manufacturing operations may be interrupted until another supplier
could be identified, its products validated and trading terms with it
negotiated. We may not be able to identify an alternative supplier in a timely
manner, or at all. Furthermore, we may not be able to negotiate favorable terms
with an alternative supplier. Any disruptions in our manufacturing operations
from the loss of a supplier could potentially damage our relations with our
pharmaceutical company partners.
IF WE CANNOT DEVELOP ADDITIONAL PRODUCTS, OUR ABILITY TO INCREASE OUR REVENUES
WOULD BE LIMITED.
We intend to continue to enhance our current technologies and pursue
additional proprietary drug delivery technologies. If we are unable to do so, we
may be unable to achieve our objectives of revenue growth and sustained
profitability. Even if enhanced or additional technologies appear promising
during various stages of development, we may not be able to develop commercial
applications for them because:
- the potential technologies may fail clinical studies;
- we may not find a pharmaceutical company to adopt the
technologies;
- it may be difficult to apply the technologies on a commercial
scale; or
- the technologies may be uneconomical to market.
IF PATIENTS AND PHYSICIANS DO NOT ACCEPT OUR DRUG DELIVERY TECHNOLOGIES, WE MAY
BE UNABLE TO GENERATE SIGNIFICANT REVENUES.
Our revenues depend on ultimate patient and physician acceptance of our
drug delivery technologies as an alternative to conventional drug delivery
systems. If our drug delivery technologies are not accepted in the marketplace,
our pharmaceutical company partners may be unable to successfully market and
sell our products, which would limit our ability to generate revenues and to
achieve sustained
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profitability. The degree of acceptance of any drug delivery system depends on
a number of factors. These factors include:
- demonstrated clinical efficacy and safety;
- cost-effectiveness;
- convenience and ease of administration;
- advantages over alternative drug delivery systems; and
- marketing and distribution support.
In addition, we expect that our pharmaceutical company partners will
price products incorporating our drug delivery technologies slightly higher than
conventional swallowable or chewable tablets, which may impair their acceptance.
Because only a limited number of products incorporating our drug delivery
technologies are commercially available, we cannot yet assess the level of
market acceptance of our drug delivery technologies.
DEMAND FOR SOME OF OUR PRODUCTS IS SEASONAL, AND OUR SALES AND PROFITS MAY
SUFFER DURING PERIODS WHEN DEMAND IS LIGHT.
Certain non-prescription products that we manufacture for our
pharmaceutical company partners to treat seasonal ailments such as colds and the
flu. Our pharmaceutical company partners may choose to not market those products
in off-seasons and our sales and profits may decline in those periods as a
result. In 1999, revenues from Novartis, which included revenues related to
Triaminic, a cold and flu product, represented 42% of our total revenues. We may
not be successful in developing a mix of non-prescription and prescription
products to reduce these seasonal variations.
IF WE CANNOT ADEQUATELY PROTECT OUR TECHNOLOGY AND PROPRIETARY INFORMATION, WE
MAY BE UNABLE TO SUSTAIN A COMPETITIVE ADVANTAGE.
Our success depends, in part, on our ability to obtain and enforce
patents for our products, processes and technologies and to preserve our trade
secrets and other proprietary information. If we cannot do so, our competitors
may exploit our innovations and deprive us of the ability to realize revenues
and profits from our developments. We have been granted seven patents on our
drug delivery systems in the U.S., which will expire beginning in 2010.
Any patent applications we may have made or may make relating to our
potential products, processes and technologies may not result in patents being
issued. Our current patents may not be valid or enforceable. They may not
protect us against competitors that challenge our patents, obtain patents that
may have an adverse effect on our ability to conduct business or are able to
circumvent our patents. Further, we may not have the necessary financial
resources to enforce our patents.
To protect our trade secrets and proprietary technologies and
processes, we rely, in part, on confidentiality agreements with our employees,
consultants and advisors. These agreements may not provide adequate protection
for our trade secrets and other proprietary information in the event of any
unauthorized use or disclosure, or if others lawfully develop the information.
THIRD PARTIES MAY CLAIM THAT OUR TECHNOLOGIES, OR THE PRODUCTS IN WHICH THEY ARE
USED, INFRINGE ON THEIR PROPRIETARY RIGHTS AND WE MAY INCUR SIGNIFICANT COSTS
RESOLVING THESE CLAIMS.
Third parties may claim that the manufacture, use or sale of our drug
delivery technologies infringe their patent rights. If such claims are asserted,
we may have to seek licenses, defend infringement actions or challenge the
validity of those patents in court. If we could not obtain required
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licenses, are found liable for infringement or are not able to have these
patents declared invalid, we may be liable for significant monetary damages,
encounter significant delays in bringing products to market or be precluded from
participating in the manufacture, use or sale of products or methods of drug
delivery covered by the patents of others. We may not have identified, or be
able to identify in the future, U.S. and foreign patents that pose a risk of
potential infringement claims.
We enter into collaborative agreements with pharmaceutical companies to
apply our drug delivery technologies to drugs developed by others. Ultimately,
we receive license revenues and product development fees, as well as revenues
from the sale of products incorporating our technology and royalties. The drugs
to which our drug delivery technologies are applied are generally the property
of the pharmaceutical companies. Those drugs may be the subject of patents or
patent applications and other forms of protection owned by the pharmaceutical
companies or third parties. If those patents or other forms of protection
expire, become ineffective or are subject to the control of third parties, sales
of the drugs by the collaborating pharmaceutical company may be restricted or
may cease. Our revenues, in that event, may decline.
WE MAY INCUR SIGNIFICANT COSTS SEEKING APPROVAL FOR OUR PRODUCTS AND IF WE ARE
NOT SUCCESSFUL, WE MAY BE UNABLE TO ACHIEVE OUR ANTICIPATED REVENUES AND
PROFITS.
The federal government, principally the U.S. Food and Drug
Administration, and state and local government agencies regulate all new
pharmaceutical products, including our existing products and those under
development. We may incur significant costs attempting to obtain regulatory
approval for our products. If we are not successful, our revenues and
profitability may decline.
Applicants for FDA approval often must submit extensive clinical data
and supporting information to the FDA. Varying interpretations of the data
obtained from pre-clinical and clinical testing could delay, limit or prevent
regulatory approval of a drug product. Changes in FDA approval policy during the
development period, or changes in regulatory review for each submitted new drug
application also may cause delays or rejection of an approval. Even if the FDA
approves a product, the approval may limit the uses or "indications" for which a
product may be marketed, or may require further studies. The FDA also can
withdraw product clearances and approvals for failure to comply with regulatory
requirements or if unforeseen problems follow initial marketing.
Manufacturers of drugs also must comply with applicable good
manufacturing practices requirements. If we cannot comply with applicable good
manufacturing practices we may be required to suspend the production and sale of
our products, which would reduce our revenues and gross profits. We may not be
able to comply with the applicable good manufacturing practices and other FDA
regulatory requirements for manufacturing as we expand our manufacturing
operations.
If our products are marketed in foreign jurisdictions, we, and the
pharmaceutical companies with whom we are developing our technologies, must
obtain required regulatory approvals from foreign regulatory agencies and comply
with extensive regulations regarding safety and quality. If approvals to market
our products are delayed, if we fail to receive these approvals, or if we lose
previously received approvals, our revenues would be reduced. We may not be able
to obtain all necessary foreign regulatory approvals. We may be required to
incur significant costs in obtaining or maintaining foreign regulatory
approvals.
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WE MAY BE SUBJECT TO SANCTIONS IF WE FAIL TO COMPLY WITH REGULATORY
REQUIREMENTS.
If we, or pharmaceutical companies with whom we are developing our
technologies, fail to comply with applicable FDA and other regulatory
requirements, we, and they, may be subject to sanctions, including:
- warning letters;
- fines;
- product seizures or recalls;
- injunctions;
- refusals to permit products to be imported into or exported out of
the U.S.;
- total or partial suspension of production;
- withdrawals of previously approved marketing applications; and
- criminal prosecutions.
IF THE MARKETING CLAIMS ASSERTED ABOUT OUR PRODUCTS ARE NOT APPROVED, OUR
REVENUES MAY BE LIMITED.
Once a drug product is approved by the FDA, the Division of Drug
Marketing, Advertising and Communication, the FDA's marketing surveillance
department within the Center for Drugs, must approve marketing claims asserted
by our pharmaceutical company partners. If our pharmaceutical company partners
fail to obtain from the Division of Drug Marketing acceptable marketing claims
for a product incorporating our drug technology, our revenues from that product
may be limited. Marketing claims are the basis for a product's labeling,
advertising and promotion. The claims our pharmaceutical company partners are
asserting about our drug delivery technology, or the drug product itself, may
not be approved by the Division of Drug Marketing.
IF WE DO NOT PROPERLY MANAGE OUR GROWTH, WE MAY BE UNABLE TO SUSTAIN THE LEVEL
OF REVENUES WE HAVE ATTAINED OR EFFECTIVELY PURSUE ADDITIONAL BUSINESS
OPPORTUNITIES.
Our revenues increased 76% from the year ended December 31, 1998 to the
year ended December 31, 1999, placing significant stress on our management,
administrative and operational resources. If we do not properly manage the
growth we have recently experienced and expect in the future, our revenues may
decline or we may be unable to pursue sources of additional revenues. To
properly manage our growth, we must, among other things, implement additional
and improve existing administrative, financial and operational systems,
procedures and controls on a timely basis. We will also need to expand our
finance, administrative and operations staff. We may not be able to complete the
improvements to our systems, procedures and controls necessary to support our
future operations in a timely manner. We may not be able to hire, train,
integrate, retain, motivate and manage required personnel and may not be able to
successfully identify, manage and exploit existing and potential market
opportunities. Improving our systems and increasing our staff will increase our
operating expenses. If we fail to generate additional revenue in excess of
increased operating expenses in any fiscal period we may incur losses, or our
losses may increase in that period.
IF WE CANNOT ATTRACT AND RETAIN KEY PERSONNEL, ON WHICH WE DEPEND, WE MAY NOT BE
ABLE TO EXECUTE OUR BUSINESS PLAN AS ANTICIPATED.
During our operating history, we have assigned many key
responsibilities within our company to a relatively small number of individuals.
If we lose the services of John Siebert, our Chief Executive Officer, or John
Hontz, our Chief Operating Officer, we may have difficulty executing our
business plan in the manner we currently anticipate. The competition for
qualified personnel is intense, and the loss of
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services of key personnel could adversely affect our business. We have an
employment agreement through December 31, 2000 with Dr. Siebert. We do not
maintain key person insurance for any of our key personnel.
We rely on our consultants to assist us in formulating our research and
development strategy. All of our consultants are otherwise employed and each of
these consultants may have commitments to other entities that may limit their
availability to us or other interests that may conflict with our interests.
WE MAY FACE PRODUCT LIABILITY CLAIMS RELATED TO PARTICIPATION IN CLINICAL TRIALS
OR THE USE OR MISUSE OF OUR PRODUCTS.
The testing, manufacturing and marketing of products utilizing our drug
delivery technologies may expose us to potential product liability and other
claims resulting from their use. If any such claims against us are successful,
we may be required to make significant compensation payments. Any
indemnification that we have obtained, or may obtain, from contract research
organizations or pharmaceutical companies conducting human clinical trials on
our behalf may not protect us from product liability claims or from the costs of
related litigation. Similarly, any indemnification we have obtained, or may
obtain, from pharmaceutical companies with whom we are developing our drug
delivery technologies may not protect us from product liability claims from the
consumers of those products or from the costs of related litigation. If we are
subject to a product liability claim, our product liability insurance, which has
an aggregate policy limit of $5 million, may not reimburse us, or be sufficient
to reimburse us, for any expenses or losses we may suffer. A successful product
liability claim against us, if not covered by, or if in excess of, our product
liability insurance, may require us to make significant compensation payments,
which would be reflected as expenses on our statement of operations.
RISKS RELATED TO OUR INDUSTRY
IF WE CANNOT KEEP PACE WITH THE RAPID TECHNOLOGICAL CHANGE AND MEET THE INTENSE
COMPETITION IN OUR INDUSTRY, WE MAY LOSE BUSINESS.
Our success depends, in part, upon maintaining a competitive position
in the development of products and technologies in a rapidly evolving field. If
we cannot maintain competitive products and technologies, our current and
potential pharmaceutical company partners may choose to adopt the drug delivery
technologies of our competitors. Fast-dissolve tablet technologies that compete
with our OraSolv and DuraSolv technologies include the Zydis technology
developed by R.P. Scherer Corporation, the WOWTab technology developed by
Yamanouchi Shaklee Pharmaceuticals, the Flashtab technology developed by
Laboratories Prographarm, and FlashDose technology developed by Fuisz
Technologies Ltd. We also compete generally with other drug delivery,
biotechnology and pharmaceutical companies, engaged in the development of
alternative drug delivery technologies or new drug research and testing. Many of
these competitors have substantially greater financial, technological,
manufacturing, marketing, managerial and research and development resources and
experience than we do, and, therefore, represent significant competition for us.
Our competitors may succeed in developing competing technologies or
obtaining governmental approval for products before we do. The products of our
competitors may gain market acceptance more rapidly than our products.
Developments by competitors may render our products, or potential products,
noncompetitive or obsolete.
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OUR COMMERCIAL PRODUCTS ARE SUBJECT TO CONTINUING REGULATION AND WE MAY BE
SUBJECT TO ADVERSE CONSEQUENCES IF WE FAIL TO COMPLY WITH APPLICABLE
REGULATIONS.
Even if our products receive regulatory approval, either in the U.S. or
internationally, we will continue to be subject to extensive regulatory
requirements. These regulations are wide-ranging and govern, among other
things:
- adverse drug experience reporting regulations;
- product promotion;
- product manufacturing, including good manufacturing practice
requirements; and
- product changes or modifications.
If we fail to comply or maintain compliance with these laws and
regulations, we may be fined or barred from selling our products. If the FDA
believes that we are not complying with the law, it can:
- seize our products;
- mandate a recall;
- stop future sales through injunctive procedures; and/or
- assess civil and criminal penalties against us.
RISKS RELATED TO OUR COMMON STOCK
ANTI-TAKEOVER PROVISIONS OF OUR CORPORATE CHARTER DOCUMENTS, DELAWARE LAW AND
OUR STOCKHOLDERS' RIGHTS PLAN MAY AFFECT THE PRICE OF OUR COMMON STOCK.
Our corporate charter documents, Delaware law and our stockholders'
rights plan include provisions that may discourage or prevent parties from
attempting to acquire us. These provisions may have the effect of depriving our
stockholders of the opportunity to sell their stock at a price in excess of
prevailing market prices in an acquisition of us by another company. Our board
of directors has the authority to issue up to 5,000,000 shares of preferred
stock and to determine the rights, preferences and privileges of those shares
without any further vote or action by our stockholders. The rights of holders of
our common stock may be adversely affected by the rights of the holders of any
preferred stock that may be issued in the future. Additional provisions of our
certificate of incorporation and bylaws could have the effect of making it more
difficult for a third party to acquire a majority of our outstanding voting
common stock. These include provisions that limit the ability of stockholders to
call special meetings or remove a director for cause.
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law, which prohibits a publicly-held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in
a prescribed manner. For purposes of Section 203, a "business combination"
includes a merger, asset sale or other transaction resulting in a financial
benefit to the interested stockholder, and an "interested stockholder" is a
person who, either alone or together with affiliates and associates, owns (or
within the past three years, did own) 15% or more of the corporation's voting
stock.
We also have a stockholders' rights plan, commonly referred to as a
poison pill, which makes it difficult, if not impossible, for a person to
acquire control of us without the consent of our board of directors.
10
<PAGE> 12
OUR STOCK PRICE HAS BEEN AND MAY CONTINUE TO BE VOLATILE.
The trading price of our common stock has been, and is likely to
continue to be highly volatile. The market value of your investment in our
common stock may fall sharply at any time due to this volatility. In the year
ended December 31, 1999, the trading price of our common stock ranged from $2.53
to $13.50. In the year ended December 31, 1998, the trading price for our common
stock ranged from $2.09 to $4.97. The market prices for securities of drug
delivery, biotechnology and pharmaceutical companies historically have been
highly volatile. Factors that could adversely affect our stock price include:
- fluctuations in our operating results;
- announcements of technological collaborations, innovations or new
products by us or our competitors;
- governmental regulations;
- developments in patent or other proprietary rights;
- public concern as to the safety of drugs developed by us or
others;
- the results of pre-clinical testing and clinical studies or trials
by us or our competitors;
- litigation; and
- general market conditions.
OUR OPERATING RESULTS MAY FLUCTUATE, CAUSING OUR STOCK PRICE TO FALL.
Fluctuations in our operating results may lead to fluctuations,
including declines, in our stock price. Our operating results may fluctuate from
quarter to quarter and from year to year depending on:
- demand by patients for the products we produce;
- new product introductions;
- the seasonal nature of the products we produce to treat seasonal
ailments;
- pharmaceutical company ordering patterns;
- the number of new collaborative agreements that we enter into;
- our achievement of product development milestones under
collaborative agreements; and
- our level of activity conducted on behalf and at the direction of
pharmaceutical companies.
FUTURE SALES OF COMMON STOCK, OR THE PROSPECT OF FUTURE SALES, MAY DEPRESS OUR
STOCK PRICE.
Sales of a substantial number of shares of common stock, or the
perception that sales may occur, could adversely affect the market price of our
common stock. On March 17, 2000, we issued and sold 1,100,000 shares of our
common stock to a limited number of investors in a private placement, exempt
from registration under the Securities Act of 1933. Under the stock purchase
agreement with the investors, we were required to file a registration statement
with the Securities and Exchange Commission within thirty days after March 17,
2000 for the resale by the investors of the shares of common stock issued in the
private placement. We also are required to use our reasonable efforts to have
the registration statement declared effective by the Securities and Exchange
Commission and maintain its effectiveness until the earlier of March 17, 2002,
the time at which all shares acquired in the private placement have been sold
under the registration statement, or the date on which each investor may sell
all of the shares of common stock acquired by the investor in the private
placement without registration or without regard to any volume limitations.
Significant resales of the common stock issued in the private placement could
adversely affect the market price of our common stock.
11
<PAGE> 13
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements based on our
current expectations, assumptions, estimates and projections about our business
and our industry. These forward-looking statements involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of a number of factors, as more
fully described above and elsewhere in this prospectus. We undertake no
obligation to update publicly any forward-looking statements for any reason,
even if new information becomes available or other events occur in the future.
12
<PAGE> 14
SELLING STOCKHOLDERS
The following table presents the number of outstanding shares of our
common stock beneficially owned by the selling stockholders as of March 17,
2000. The table also presents the maximum number of shares proposed to be sold
by the selling stockholders and the number of shares they will own after the
sales. The percentages are based on 10,851,134 shares outstanding on March 17,
2000.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO OFFERING AFTER OFFERING (1)
------------------------- -------------------------
PERCENTAGE PERCENTAGE
OF SHARES OF
NAME NUMBER OUTSTANDING OFFERED NUMBER OUTSTANDING
-------------------------------- --------- -------------- ---------- --------- ------------
<S> <C> <C> <C> <C> <C>
Delaware Group Equity Funds III, 298,100 2.7 108,900 189,200 1.7
on behalf of its Delaware Trend
Fund
Delaware Group Premium Fund, on 160,600 1.5 60,600 100,000 *
behalf of its Trend Series
Delaware Management Company, 82,700 * 29,400 53,300 *
sub-investment adviser on behalf
of PACE Small/Medium Company
Growth Equity Investments
Delaware Pooled Trust, on behalf 2,500 * 1,100 1,400 *
of its The Small-Cap Growth
Equity Portfolio
Franklin Biotechnology 300,000 2.8 300,000 -- --
Discovery Fund
Franklin Small Cap 600,000 5.5 600,000 -- --
Growth Fund
</TABLE>
-------------------------
*Less than 1%.
(1) Assumes sale of all shares of the selling stockholders being offered.
13
<PAGE> 15
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares being offered from time to
time in one or more transactions:
- on the Nasdaq National Market or otherwise;
- in the over-the-counter market;
- in negotiated transactions;
- through the writing of options on shares, whether the options are
listed on an options exchange or otherwise; or
- a combination of such methods of sale.
The selling stockholders may sell the shares at market prices
prevailing at the time of sale, at prices related to those market prices or at
negotiated prices. The selling stockholders also may sell the shares pursuant to
Rule 144 adopted under the Securities Act of 1933 as permitted by that rule. The
selling stockholders may effect transactions by selling shares directly to
purchasers or to or through broker-dealers. The broker-dealers may act as agents
or principals. The broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholders or the
purchasers of the shares. The compensation of any particular broker-dealer may
be in excess of customary commissions. The selling stockholders and
broker-dealers that participate with the selling stockholders in the
distribution of shares may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act. Any commissions received by them and any
profit on the resale of shares may be deemed to be underwriting compensation. We
have informed the selling stockholders that the anti-manipulative provisions of
Regulation M promulgated under the Securities Exchange Act of 1934 may apply to
their sales of shares in the market.
Upon notification to us by a selling stockholder that any material
arrangement has been entered into with broker-dealers for the sale or purchase
of shares, we will file a supplement to this prospectus, if required,
disclosing:
- the name of the participating broker-dealers;
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to such
broker-dealers, where applicable;
- that such broker-dealers did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
- other facts material to the transaction.
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 SEC 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 with the SEC
at its Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
You can also obtain copies of the documents at prescribed rates by writing to
the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of its Public Reference Room. Our SEC filings are also available at
the office of the National Association of Securities Dealers, Inc. For more
information on obtaining copies of our public filings at the National
Association of Securities Dealers, Inc., you should write to National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
14
<PAGE> 16
We "incorporate by reference" into this prospectus the information we
file with the SEC, 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
subsequently with the SEC will automatically update this prospectus. We
incorporate by reference the documents listed below and any filings we make with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934 after the initial filing of the registration statement that contains
this prospectus and prior to the time that all the securities offered by this
prospectus are sold:
- Annual Report on Form 10-K for the year ended December 31, 1999
(including information specifically incorporated by reference into
our Form 10-K from our 2000 Annual Report to Stockholders and our
definitive Notice and Proxy Statement for our 2000 Annual Meeting
of Stockholders);
- Quarterly Report on Form 10-Q for the quarter ended March 31,
2000; and
- the description of our common stock contained in the registration
statement on Form 8-A dated June 22, 1994 and any amendment or
reports filed to update that description.
You may request a copy of these filings (other than an exhibit to a
filing, unless that exhibit is specifically incorporated by reference into that
filing) at no cost, by writing to or telephoning us at the following address:
Mr. David A. Feste
Vice President and Chief Financial Officer
CIMA LABS INC.
10000 Valley View Road
Eden Prairie, Minnesota 55344
(952) 947-8700
You should rely only on the information incorporated by reference or
presented in this prospectus. We have not authorized anyone else to provide you
with different information. We are only offering these securities in states
where the offer is permitted. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the cover page of
this prospectus.
LEGAL OPINIONS
Faegre & Benson LLP, 2200 Norwest Center, Minneapolis, Minnesota 55402
will pass upon the validity of the shares of common stock offered by this
prospectus.
EXPERTS
The financial statements included in our Annual Report on Form 10-K for
the year ended December 31, 1999, were audited by Ernst & Young LLP, independent
auditors, as indicated in their report thereon, and are incorporated by
reference into this prospectus and elsewhere in this registration statement in
reliance upon their report, given on their authority as experts in accounting
and auditing.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance and distribution of
the shares of common stock being registered hereunder, other than underwriting
commissions and expenses, are estimated below.
<TABLE>
<S> <C>
SEC registration fee ...................... $ 5,101
Nasdaq listing fee ........................ 17,500
Legal services and expenses ............... 75,000
Accounting services and expenses .......... 30,000
Printing fees ............................. 5,000
Miscellaneous ............................. 12,399
-----------
Total $ 145,000
===========
</TABLE>
Except for the SEC registration fee and the Nasdaq listing
fee, all of the foregoing expenses have been estimated. The selling stockholders
will bear fees and disbursements of their own legal counsel and accountants and
transfer taxes. The Registrant will bear all other expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
CIMA LABS INC. ("CIMA LABS") is a Delaware corporation. Section 145 of
the General Corporation Law of the State of Delaware ("Delaware Law") contains
detailed provisions on indemnification of directors and officers of a Delaware
corporation against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with certain litigation.
CIMA LABS's Fifth Restated Certificate of Incorporation (the
"Certificate"), together with CIMA LABS's Third Restated Bylaws (the "Bylaws"
and together with the Certificate, the "Corporate Documents") provide for
indemnification of directors and officers. CIMA LABS's Corporate Documents
provide that CIMA LABS will indemnify each director, officer, employee or agent
of CIMA LABS or any individual serving in such a capacity with another business
entity at CIMA LABS's request (an "Indemnitee") to the full extent permitted by
Delaware Law, as now enacted or hereinafter amended, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such Indemnitee in connection therewith.
CIMA LABS's Corporate Documents provide that expenses incurred by a director,
officer or employee in defending an action, suit or proceeding shall be paid by
CIMA LABS in advance of the final disposition of such action upon receipt of an
undertaking by or on behalf of such person that he will repay such amount if it
is ultimately determined that he is not entitled to be indemnified by CIMA LABS.
Delaware Law provides that the indemnification provisions of the statute 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.
CIMA LABS has entered into agreements with its directors and certain of
its officers, which agreements may require CIMA LABS to indemnify such directors
and officers against certain liabilities that may arise by reason of their
status or service as directors or officers, to advance their expenses incurred
as a result of any proceeding against them as to which they could be indemnified
and to obtain directors and officers insurance to the extent available on
reasonable terms.
II-1
<PAGE> 18
The directors and officers of CIMA LABS are covered by an insurance
policy indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4.1 Fifth Restated Certificate of Incorporation (1)
4.2 Third Restated Bylaws (2)
4.3 Form of Stock Purchase Agreement dated March 13, 2000 (3)
4.4 Stock Purchase Agreement dated March 13, 2000, between the Registrant and Delaware Group
Equity Funds III, on behalf of its Delaware Trend Fund
4.5 Stock Purchase Agreement dated March 13, 2000, between the Registrant and Delaware Group
Premium Fund, on behalf of its Trend Series
4.6 Stock Purchase Agreement dated March 13, 2000, between the Registrant and Delaware
Management Company, sub-investment adviser on behalf of PACE Small/Medium Company Growth
Equity Investments
4.7 Stock Purchase Agreement dated March 13, 2000, between the Registrant and Delaware Pooled
Trust, on behalf of its The Small-Cap Growth Equity Portfolio
4.8 Stock Purchase Agreement dated March 13, 2000, between the Registrant and Franklin
Biotechnology Discovery Fund
4.9 Stock Purchase Agreement dated March 13, 2000, between the Registrant and Franklin Small Cap
Growth Fund
5 Opinion of Faegre & Benson LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Faegre & Benson LLP (contained in Exhibit 5 to this Registration Statement)
24 Powers of Attorney
</TABLE>
------------------------
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Form 10-K for
the year ended December 31, 1994 (File No. 0-24424).
(2) Incorporated by reference to Exhibit 3.2 to the Company's Form 10-Q for the
period ended June 30, 1999 (File No. 0-24424).
(3) Incorporated by reference to Exhibit 4.3 to the Registrant's Form 10-K for
the year ended December 31, 1999 (File No. 0-24424).
II-2
<PAGE> 19
ITEM 17 UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, (ii) to reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement, 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 paragraphs (1)(i) and (1)(ii) do 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 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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 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.
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.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the undersigned 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 Amendment No. 1 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Eden Prairie, State of Minnesota, on June 12,
2000.
CIMA LABS INC.
(Registrant)
By *
-----------------------------------------
John M. Siebert, Ph.D.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 has been signed below by the following persons, representing a
majority of the Board of Directors, in the capacities and on June 12, 2000.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<S> <C>
*
--------------------------------------- President and Chief Executive
John M. Siebert, Ph.D. Officer (Principal Executive
Officer) and Director
*
--------------------------------------- Vice President and Chief Financial
David A. Feste Officer (Principal Financial
Officer and Principal Accounting
Officer)
*
--------------------------------------- Chairman of the Board of Directors
Terrence W. Glarner
*
--------------------------------------- Director
Steven B. Ratoff
*
--------------------------------------- Director
Joseph R. Robinson, Ph.D.
</TABLE>
* David A. Feste, by signing his name hereto, does hereby sign this document on
behalf of himself and each of the other above named executive officer and
directors of the Registrant pursuant to powers of attorney duly executed by
each such person.
/s/ David A. Feste
---------------------------------------
David A. Feste
II-4
<PAGE> 21
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
------- ----------- ---------
<S> <C> <C>
4.1 Fifth Restated Certificate of Incorporation (1)................................ Incorporated by
Reference
4.2 Third Restated Bylaws (2)...................................................... Incorporated by
Reference
4.3 Form of Stock Purchase Agreement dated March 13, 2000 (3)...................... Incorporated by
Reference
4.4 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Delaware Group Equity Funds III, on behalf of its Delaware Trend Fund .........
Previously Filed
4.5 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Delaware Group Premium Fund, on behalf of its Trend Series ....................
Previously Filed
4.6 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Delaware Management Company, sub-investment adviser on behalf of PACE
Small/Medium Company Growth Equity Investments................................. Previously Filed
4.7 Stock Purchase Agreement dated March 13, 2000, between the Registrant
and Delaware Pooled Trust, on behalf of its The Small-Cap Growth Equity
Portfolio. Previously Filed
4.8 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Franklin Biotechnology Discovery Fund.......................................... Previously Filed
4.9 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Franklin Small Cap Growth Fund................................................. Previously Filed
5 Opinion of Faegre & Benson LLP................................................. Previously Filed
23.1 Consent of Ernst & Young LLP................................................... Filed Electronically
23.2 Consent of Faegre & Benson LLP
(contained in Exhibit 5 to this Registration Statement)
24 Powers of Attorney............................................................. Previously Filed
</TABLE>
------------------------
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Form 10-K
for the year ended December 31, 1994 (File No. 0-24424).
(2) Incorporated by reference to Exhibit 3.2 to the Company's Form 10-Q for
the period ended June 30, 1999 (File No. 0-24424).
(3) Incorporated by reference to Exhibit 4.3 to the Registrant's Form 10-K
for the year ended December 31, 1999 (File No. 0-24424).
