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As filed with the Securities and Exchange Commission on April 14, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
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)
---------------
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)
------------------------------
copy to:
Gale R. Mellum, Esq.
Peggy Steif Abram, Esq.
Faegre & Benson LLP
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
(612) 336-3000
Fax (612) 336-3026
------------------------------
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. [ ] _____________________________________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ] ____________________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered per share (1) price (1) fee
- ------------------------ ------------------------ ---------------------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,100,000 shares $17.563 $19,218,750 $5,101
====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of the registration fee pursuant to Rule
457(c) based on the average of the high and low sales prices per share of
the Registrant's Common Stock on April 13, 2000 as reported on the Nasdaq
National Market.
-------------------------------
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 April 14, 2000.
PROSPECTUS
1,100,000 SHARES
CIMA LABS INC.
COMMON STOCK
----------------------
This prospectus relates to shares of our common stock that may be sold by
the selling stockholders named under "Selling Stockholders." We will not receive
any of the proceeds from the sale of those shares.
Our common stock is traded on the Nasdaq National Market under the symbol
"CIMA." On April 13, 2000, the last sale price for the common stock, as reported
on the Nasdaq National Market, was $17.875 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.
---------------------------
, 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. 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. The risks and uncertainties described below are not the only
ones facing our company. Additional risks and uncertainties also may impair our
business operations. Any of the following risks may cause our business,
financial condition and results of operations to suffer. 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
WE HAVE A LIMITED OPERATING HISTORY ON WHICH TO EVALUATE OUR PROSPECTS.
We recorded the first commercial sales of products using our
fast-dissolve technologies in early 1997. 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 commercializing our technologies and expanding our production
capabilities, in addition to research and product development activities.
Accordingly, we have only a limited operating history and our business and
prospects 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. Many of these risks are discussed in the subheadings below.
WE MAY NOT BE PROFITABLE IN THE FUTURE.
We have accumulated aggregate net losses from inception through
December 31, 1999 of approximately $46 million. Our losses have resulted
principally from the research and product development costs for our drug
delivery technologies and from general and administrative costs. If we are not
profitable, the market price of our stock may fall. Profitable operations depend
on a number of factors, many of which are beyond our direct control. These
factors include:
o the demand for our products;
o our ability to manufacture our products efficiently and with the
required quality;
o our ability to increase our manufacturing capacity;
o the level of product and price competition;
o our ability to develop additional commercial applications for our
products;
o our ability to control our costs; and
o general economic conditions.
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THE LOSS OF ONE OF OUR MAJOR CUSTOMERS COULD HARM OUR BUSINESS.
Revenues from our three largest customers represented over 85% of our total
revenues for the year ended December 31, 1999. The loss of any one of those
customers could have a material adverse effect on our business and results of
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 and our business and results of operations may be
adversely affected.
IF WE DO NOT ENTER INTO ADDITIONAL COLLABORATIVE AGREEMENTS WITH PHARMACEUTICAL
COMPANIES, WE MAY NOT BE ABLE TO BECOME PROFITABLE.
Our revenues depend on entering into 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. We currently have collaborative agreements with six
pharmaceutical companies. 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 financial condition and results of operations
could be materially adversely affected.
In addition, we cannot be sure that:
o we will be able to enter into collaborative agreements to develop
additional products using our drug delivery technologies;
o any existing or future collaborative agreements will result in
additional commercial products, or that any of these products will be
successful;
o we will meet the milestones established in our current or future
collaborative agreements; or
o we will 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.
We develop, manufacture and sell our products through relationships with
our pharmaceutical company partners. The timing and other aspects of the
development of products are sometimes out of our control, as the other party to
the relationship may have priorities that differ from ours. Therefore, the
timing of the commercialization of our products under development may be subject
to unanticipated delays. Further, our drug delivery technologies are
incorporated into the oral dosage forms of products marketed and sold by our
pharmaceutical company partners and we do not have a direct marketing channel to
consumers for our drug delivery technologies. Therefore, the success of the
products incorporating our technologies will depend on 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. If one or more of our pharmaceutical
company partners fail to pursue the development of, or the marketing of, our
products as planned, our business may be adversely affected.
IF WE CANNOT INCREASE OUR PRODUCTION CAPACITY, OUR BUSINESS WILL SUFFER.
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. 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. Production lines in the
pharmaceutical industry generally take 16 to
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24 months to complete because of the long lead times required for precision
production equipment and the lengthy testing and approval process. We cannot be
sure that our production capacity can be increased quickly enough to meet the
requirements of our pharmaceutical company partners with whom we are developing
our drug delivery technologies. If we are unable to increase our production
capacity as scheduled, our revenues may be reduced and our relationship with our
pharmaceutical company partners may be harmed.
WE HAVE A SINGLE MANUFACTURING FACILITY AND OUR BUSINESS WOULD SUFFER IF WE WERE
TO LOSE ITS PRODUCTION CAPACITY.
All of the products that we produce are manufactured 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 would
have no other means of producing products incorporating our drug delivery
technologies until we are 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 AND OUR BUSINESS COULD
SUFFER IF THE MATERIALS WERE NOT AVAILABLE FROM THEIR CURRENT SOURCE.
We rely on a single supplier for some of our raw materials and
packaging supplies. If these raw materials or packaging supplies were no longer
available, our manufacturing operations may be interrupted until another
supplier could be identified, its products validated and trading terms with it
negotiated. We cannot be sure that an alternative supplier could be identified
in a timely manner, or at all, or that favorable terms could be negotiated with
an alternative supplier. Any disruptions in our manufacturing operations from
the loss of a supplier could have a material adverse effect on our results of
operations, and potentially damage our relations with our pharmaceutical company
partners.
OUR ABILITY TO DEVELOP ADDITIONAL PRODUCTS IS UNCERTAIN.
We intend to continue to enhance our current technologies and pursue
additional proprietary drug delivery technologies. Even if these technologies
appear promising during various stages of development, we may not be able to
develop commercial applications for them because:
o the potential technologies may fail clinical studies;
o we may not find a pharmaceutical company to adopt the technologies;
o it may be difficult to apply the technologies on a commercial scale;
or
o the technologies may be uneconomical to market.
If we are unable to develop new commercial applications for our
proprietary drug delivery technologies, our business may be adversely affected.
IF PATIENTS AND PHYSICIANS DO NOT ACCEPT OUR DRUG DELIVERY TECHNOLOGIES, WE MAY
BE UNABLE TO GENERATE SIGNIFICANT REVENUES, IF ANY.
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
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market and sell our products, which would limit our ability to generate revenues
and harm our results of operations. The degree of acceptance of any drug
delivery system depends on a number of factors. These factors include, but are
not limited to:
o demonstrated clinical efficacy and safety;
o cost-effectiveness; o convenience and ease of administration;
o advantages over alternative drug delivery systems; and
o marketing and distribution support.
In addition, we expect that products incorporating our drug delivery
technologies will be priced slightly higher than conventional swallowable or
chewable tablets. Because only a limited number of products incorporating our
drug delivery technologies are commercially available, we cannot be sure of the
level of market acceptance of our drug delivery technologies.
DEMAND FOR SOME OF OUR PRODUCTS IS SEASONAL, AND OUR OPERATING RESULTS MAY
SUFFER DURING PERIODS WHEN DEMAND IS LIGHT.
Certain non-prescription products we manufacture are used to treat
seasonal ailments such as colds and the flu. In 1999, revenue from Novartis,
which included sales of our Triaminic products, royalties on sales of Triaminic
by Novartis and product development fees, represented 42% of our total revenues.
Our partners may not market our products in off-seasons and our operating
results consequently may suffer. We are focused on developing a mix of
non-prescription and prescription products to reduce these seasonal variations
but we may not be successful.
IF WE CANNOT ADEQUATELY PROTECT OUR PATENT AND PROPRIETARY RIGHTS, OUR BUSINESS
WILL SUFFER.
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. We have been granted seven patents on
our drug delivery systems in the U.S., which will expire beginning in 2010.
We cannot be sure that any patent applications relating to our
potential products, processes and technologies will result in patents being
issued. Our current patents may not be valid or enforceable, or protect us
against competitors who challenge our patents, or obtain patents that may have
an adverse effect on our ability to conduct business, or who are able to
circumvent our patents. Further, we cannot be sure that we will 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. We cannot be sure that these agreements will prove
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.
WE MAY BE SUBJECT TO CLAIMS THAT OUR TECHNOLOGIES, OR THE PRODUCTS IN WHICH THEY
ARE USED, INFRINGE ON THE PROPRIETARY RIGHTS OF OTHERS.
The manufacture, use or sale of our drug delivery technologies may
infringe the patent rights of others. We may be unable to avoid infringement of
those patents and we may have to seek licenses, defend infringement actions or
challenge the validity of those patents in court. We cannot be sure that, if
required, licenses from third parties will be available to us on terms and
conditions acceptable to us, if at all, or that we would prevail in any patent
litigation. If we could not obtain required licenses, are found liable for
infringement, or are not able to have these patents declared invalid, we may be
liable for
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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 cannot
be sure that we have identified, or will 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 and,
ultimately, receive license revenues and product development fees, as well as
revenues from the sale of products incorporating our technology and royalties.
The drugs are generally the property of the pharmaceutical companies and may be
the subject of patents or patent applications and other forms of protection
owned by the pharmaceutical companies. To the extent those patents or other
forms of protection expire, become invalid or otherwise ineffective, or to the
extent the drugs are covered by patents or other forms of protection owned by
third parties, sales of the drugs by the collaborating pharmaceutical company
may be restricted, limited or may cease. Our revenues, in that event, may be
adversely affected.
WE MAY NOT BE ABLE TO OBTAIN REGULATORY APPROVAL FOR OUR PRODUCTS ON A TIMELY
BASIS, OR AT ALL.
All new pharmaceutical products, including our products and those under
development, are subject to extensive and rigorous regulation by the federal
government, principally the U.S. Food and Drug Administration, or FDA, and by
state and local government agencies. These regulations govern the research,
development, testing, manufacture, safety, storage, record keeping, labeling,
advertising and promotion and marketing and distribution of pharmaceutical
products. If marketed abroad, these products also are subject to regulation by
foreign governments.
The process for obtaining FDA approvals for drug products is generally
lengthy, expensive and uncertain. Securing FDA approvals often requires
applicants to submit extensive clinical data and supporting information to the
FDA. We depend on external laboratories and medical institutions to conduct
pre-clinical and clinical testing of our products in compliance with clinical
and laboratory practices established by the FDA. The data obtained from
pre-clinical and clinical testing is subject to varying interpretations that
could delay, limit or prevent regulatory approval. Delays or rejection also may
occur due to changes in FDA approval policy during the development period, or
changes in regulatory review for each submitted New Drug Application. 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.
Once a drug product is approved, the Division of Drug Marketing,
Advertising and Communication, or DDMAC, the FDA's marketing surveillance
department within the Center for Drugs, must approve marketing claims asserted
by our pharmaceutical company partners, which are the basis for a product's
labeling, advertising and promotion. We cannot be sure that the claims our
pharmaceutical company partners are asserting about our drug delivery
technology, or the drug product itself, will be approved by DDMAC. If our
pharmaceutical company partners fail to obtain from DDMAC acceptable marketing
claims for a product, our business and results of operations could be materially
adversely affected.
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:
o warning letters;
o fines;
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o product seizures or recalls;
o injunctions;
o refusals to permit products to be imported into or exported out of the
U.S.;
o total or partial suspension of production;
o withdrawals of previously approved marketing applications; and
o criminal prosecutions.
Manufacturers of drugs also must comply with applicable Good
Manufacturing Practices, or GMP, requirements, which relate to product testing,
quality assurance and maintaining records and documentation. We cannot be sure
that we will be able to comply with the applicable GMP and other FDA regulatory
requirements for manufacturing as we expand our manufacturing operations, which
would impair our business.
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. We cannot be sure that
we will obtain all necessary regulatory approvals or that we will not be
required to incur significant costs in obtaining or maintaining any foreign
regulatory approvals. If approvals to market our products are delayed, if we
fail to receive these approvals, or if we lose previously received approvals,
our business would be impaired.
WE MAY HAVE DIFFICULTY MANAGING OUR GROWTH.
Any failure to properly manage our growth may have a material adverse
effect on our business, operating results and financial condition. The rapid
growth that we have experienced places significant challenges on our management,
administrative and operational resources. To properly manage this 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. Management 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. Our failure to generate additional revenue in excess of increased
operating expenses in any fiscal period could have a material adverse effect on
our financial results for that period.
WE DEPEND ON KEY PERSONNEL AND MUST CONTINUE TO ATTRACT AND RETAIN KEY
PERSONNEL.
Our success depends upon the continued contributions of our executive
officers and scientific and technical personnel. During our operating history,
many key responsibilities within our company have been assigned to a relatively
small number of individuals. The competition for qualified personnel is intense,
and the loss of services of key personnel could adversely affect our business.
In particular, the loss of the services of John Siebert, our Chief Executive
Officer, and John Hontz, our Chief Operating Officer, could have a material
adverse effect on our operations. We have an employment agreement through
December 31, 2000 with Dr. Seibert.
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.
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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. We cannot be sure that any indemnification we
have obtained, or may obtain, from contract research organizations or
pharmaceutical companies conducting human clinical trials on our behalf protect
us from product liability claims or from the costs of related litigation.
Similarly, we cannot be sure that any indemnification we have obtained, or may
obtain, from pharmaceutical companies with whom we are developing our drug
delivery technologies will 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, we cannot be sure that our product
liability insurance, which has an aggregate policy limit of $5 million, will
reimburse us, or will 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 have a material
adverse effect on our business and results of operations.
RISKS RELATED TO OUR INDUSTRY
WE FACE RAPID TECHNOLOGICAL CHANGE AND INTENSE COMPETITION.
Our success depends, in part, upon maintaining a competitive position in
the development of products and technologies in a rapidly evolving field. We
compete with other drug delivery, biotechnology and pharmaceutical companies,
engaged in the development of alternative drug delivery technologies or new drug
research and testing, as well as with entities developing new drugs that may be
taken orally. 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.
OUR COMMERCIAL PRODUCTS ARE SUBJECT TO CONTINUING REGULATION.
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:
o adverse drug experience reporting regulations;
o product promotion;
o product manufacturing, including good manufacturing practice, or GMP,
requirements; and
o 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:
o seize our products;
o mandate a recall;
o stop future sales through injunctive procedures; and/or
o assess civil and criminal penalties against us.
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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 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, that makes it difficult, if not impossible, for a person to acquire
control of us without the consent of our board of directors. The anti-takeover
provisions of our corporate charter documents, Delaware law and our
stockholders' rights plan 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 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 prices for securities of drug delivery,
biotechnology and pharmaceutical companies historically have been highly
volatile. Factors that could adversely affect our stock price include:
o fluctuations in our operating results;
o announcements of technological collaborations, innovations or new
products by us or our competitors;
o governmental regulations;
o developments in patent or other proprietary rights;
o public concern as to the safety of drugs developed by us or others;
o the results of pre-clinical testing and clinical studies or trials by
us or our competitors;
o litigation; and
o general market conditions.
OUR OPERATING RESULTS MAY FLUCTUATE, CAUSING OUR STOCK PRICE TO FALL.
Our operating results may fluctuate from quarter to quarter and from year
to year depending on:
o demand by patients for the products we produce;
o new product introductions;
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o the seasonal nature of the products we produce to treat seasonal
ailments;
o pharmaceutical company ordering patterns;
o the number of new collaborative agreements that we enter into;
o our achievement of product development milestones under collaborative
agreements; and
o our level of activity conducted on behalf and at the direction of
pharmaceutical companies.
Fluctuations in our operating results may lead to fluctuations, including
declines, in our stock price.
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 are 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.
WE MAY REQUIRE ADDITIONAL FINANCING.
We expect operating expenses and capital expenditures to increase as we
commercialize additional applications of our drug delivery technologies and
increase our production capacity. We believe our cash and cash equivalents,
together with the net proceeds from the private placement of common stock 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. In addition, 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. We cannot be sure that additional financing will be available to us
or, if available, on acceptable terms. Further, if we issue equity securities,
our stockholders may experience dilution.
10
<PAGE> 12
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.
11
<PAGE> 13
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.
12
<PAGE> 14
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares being offered from time to
time in one or more transactions:
o on the Nasdaq National Market or otherwise;
o in the over-the-counter market;
o in negotiated transactions;
o through the writing of options on shares, whether the options are
listed on an options exchange or otherwise; or
o 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, a supplement to this prospectus will be filed, if required,
disclosing:
o the name of the participating broker-dealers;
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealers, where applicable;
o that such broker-dealers did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
o 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.
13
<PAGE> 15
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:
o 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); and
o 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.
14
<PAGE> 16
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> 17
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> 18
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> 19
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Eden Prairie, State of Minnesota, on April 14, 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
Registration Statement has been signed below by the following persons,
representing a majority of the Board of Directors, in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
*
- -------------------------------- President and Chief Executive April 14, 2000
John M. Siebert, Ph.D. Officer (Principal Executive
Officer) and Director
*
- -------------------------------- Vice President and Chief Financial April 14, 2000
David A. Feste Officer (Principal Financial
Officer and Principal Accounting
Officer)
*
- -------------------------------- Chairman of the Board of Directors April 14, 2000
Terrence W. Glarner
*
- -------------------------------- Director April 14, 2000
Steven B. Ratoff
*
- -------------------------------- Director April 14, 2000
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> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
- ------- ----------- ---------
<C> <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 ......... Filed Electronically
4.5 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Delaware Group Premium Fund, on behalf of its Trend Series .................... Filed Electronically
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................................. Filed Electronically
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 ............................................. Filed Electronically
4.8 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Franklin Biotechnology Discovery Fund.......................................... Filed Electronically
4.9 Stock Purchase Agreement dated March 13, 2000, between the Registrant and
Franklin Small Cap Growth Fund................................................. Filed Electronically
5 Opinion of Faegre & Benson LLP................................................. Filed Electronically
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............................................................. Filed Electronically
</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).
<PAGE> 1
Exhibit 4.4
STOCK PURCHASE AGREEMENT
CIMA Labs Inc.
10000 Valley View Road
Eden Prairie, Minnesota 55344
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between CIMA Labs, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,200,000 shares
(the "Shares") of common stock of the Company, $.01 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor 108,900 shares,
for a purchase price of $19.00 per share, or an aggregate purchase price of
$2,069,100, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by this reference as if
fully set forth herein. Unless otherwise requested by the Investor,
certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which
it is a member or to which it is related, beneficially owns (including the
right to acquire or vote) any securities of the Company and (c) it has no
direct or indirect affiliation or association with any NASD member.
Exceptions: The Investor currently beneficially owns 189,200 shares of
common stock of the Company. Delaware Distributors, L.P., a limited purpose
broker-dealer, is the Investor's distributor and an NASD member.
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
DATED AS OF: March 13, 2000
Delaware Group Equity Funds III, on behalf
of its Delaware Trend Fund
By: /s/ Gerald S. Frey
---------------------
Print Name: Gerald S. Frey
Title: Senior Vice President
Address: 1818 Market Street, Philadelphia,
Pennsylvania 19103
AGREED AND ACCEPTED:
CIMA LABS INC.
By: /s/ John M. Siebert
-------------------
John M. Siebert
Title: President and Chief Executive Officer
<PAGE> 1
Exhibit 4.5
STOCK PURCHASE AGREEMENT
CIMA Labs Inc.
10000 Valley View Road
Eden Prairie, Minnesota 55344
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between CIMA Labs, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,200,000 shares
(the "Shares") of common stock of the Company, $.01 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor 60,600 shares,
for a purchase price of $19.00 per share, or an aggregate purchase price of
$1,151,400, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by this reference as if
fully set forth herein. Unless otherwise requested by the Investor,
certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which
it is a member or to which it is related, beneficially owns (including the
right to acquire or vote) any securities of the Company and (c) it has no
direct or indirect affiliation or association with any NASD member.
Exceptions: The Investor currently beneficially owns 100,000 shares of
common stock of the Company. Delaware Distributors, L.P., a limited purpose
broker-dealer, is the Investor's distributor and an NASD member.
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
DATED AS OF: March 13, 2000
Delaware Group Premium Fund, on behalf of its Trend Series
By: /s/ Gerald S. Frey
-------------------------------------
Print Name: Gerald S. Frey
Title: Senior Vice President
Address: 1818 Market Street, Philadelphia,
Pennsylvania 19103
AGREED AND ACCEPTED:
CIMA LABS INC.
By: /s/ John M. Siebert
-------------------
John M. Siebert
Title: President and Chief Executive Officer
<PAGE> 1
Exhibit 4.6
STOCK PURCHASE AGREEMENT
CIMA Labs Inc.
10000 Valley View Road
Eden Prairie, Minnesota 55344
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between CIMA Labs, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,200,000 shares
(the "Shares") of common stock of the Company, $.01 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor 29,400 shares,
for a purchase price of $19.00 per share, or an aggregate purchase price of
$558,600, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by this reference as if
fully set forth herein. Unless otherwise requested by the Investor,
certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which
it is a member or to which it is related, beneficially owns (including the
right to acquire or vote) any securities of the Company and (c) it has no
direct or indirect affiliation or association with any NASD member.
Exceptions: The Investor currently beneficially owns 53,300 shares of
common stock of the Company. Mitchell Hutchins Asset Management Inc.
(MHAM), the Investor's manager is an NASD member. MHAM is a wholly-owned
subsidiary of PaineWebber Incorporated, which is also an NASD member.
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
DATED AS OF: March 13, 2000
Delaware Management Company, sub-investment adviser on behalf
of PACE Small/Medium Company Growth Equity Investments
INVESTOR
By: /s/ Robert J. DiBraccio
Print Name: Robert J. DiBraccio
Title: Senior Vice President
Address: 1818 Market Street, Philadelphia,
Pennsylvania 19103
AGREED AND ACCEPTED:
CIMA LABS INC.
By: /s/ John M. Siebert
-------------------
John M. Siebert
Title: President and Chief Executive Officer
<PAGE> 1
Exhibit 4.7
STOCK PURCHASE AGREEMENT
CIMA Labs Inc.
10000 Valley View Road
Eden Prairie, Minnesota 55344
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between CIMA Labs, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,200,000 shares
(the "Shares") of common stock of the Company, $.01 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor 1,100 shares,
for a purchase price of $19.00 per share, or an aggregate purchase price of
$20,900, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by this reference as if
fully set forth herein. Unless otherwise requested by the Investor,
certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which
it is a member or to which it is related, beneficially owns (including the
right to acquire or vote) any securities of the Company and (c) it has no
direct or indirect affiliation or association with any NASD member.
Exceptions: The Investor currently beneficially owns 1,400 shares of common
stock of the Company. Delaware Distributors, L.P., a limited purpose
broker-dealer, is the Investor's distributor and an NASD member.
Please confirm that the foregoing correctly sets forth the agreement between
us by signing in the space provided below for that purpose.
DATED AS OF: March 13, 2000
Delaware Pooled Trust, on behalf of its The
Small-Cap Growth Equity Portfolio
By: /s/ Gerald S. Frey
--------------------
Print Name: Gerald S. Frey
Title: Senior Vice President
Address: 1818 Market Street, Philadelphia
Pennsylvania 19103
AGREED AND ACCEPTED:
CIMA LABS INC.
By: /s/ John M. Siebert
-------------------
John M. Siebert
Title: President and Chief Executive Officer
<PAGE> 1
Exhibit 4.8
STOCK PURCHASE AGREEMENT
CIMA Labs Inc.
10000 Valley View Road
Eden Prairie, Minnesota 55344
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between CIMA Labs, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,200,000 shares
(the "Shares") of common stock of the Company, $.01 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor 300,000 shares,
for a purchase price of $19.00 per share, or an aggregate purchase price of
$5,700,000, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by this reference as if
fully set forth herein. Unless otherwise requested by the Investor,
certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which
it is a member or to which it is related, beneficially owns (including the
right to acquire or vote) any securities of the Company and (c) it has no
direct or indirect affiliation or association with any NASD member.
Exceptions:
none
--------------------------------------------------------------------------
(If no exceptions, write "none." If left blank, response will
be deemed to be "none.")
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
DATED AS OF: March 13, 2000
Franklin Biotechnology Discovery Fund
-------------------------------------
INVESTOR
By: /s/ Murray L. Simpson
-----------------------
Print Name: Murray L. Simpson
Title: Vice President
Address: 777 Mariners Island Boulevard,
San Mateo, California 94404
AGREED AND ACCEPTED:
CIMA LABS INC.
By: /s/ John M. Siebert
-------------------
John M. Siebert
Title: President and Chief Executive Officer
<PAGE> 1
EXHIBIT 4.9
STOCK PURCHASE AGREEMENT
CIMA Labs Inc.
10000 Valley View Road
Eden Prairie, Minnesota 55344
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between CIMA Labs, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,200,000 shares
(the "Shares") of common stock of the Company, $.01 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor 600,000 shares,
for a purchase price of $19.00 per share, or an aggregate purchase price of
$11,400,000, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by this reference as if
fully set forth herein. Unless otherwise requested by the Investor,
certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which
it is a member or to which it is related, beneficially owns (including the
right to acquire or vote) any securities of the Company and (c) it has no
direct or indirect affiliation or association with any NASD member.
Exceptions:
none
--------------------------------------------------------------------------
(If no exceptions, write "none." If left blank, response will be
deemed to be "none.")
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
DATED AS OF: March 13, 2000
Franklin Small Cap Growth Fund
INVESTOR
By: /s/ Murray L. Simpson
-----------------------
Print Name: Murray L. Simpson
Title: Vice President
Address: 777 Mariners Island Boulevard,
San Mateo, California 94404
AGREED AND ACCEPTED:
CIMA LABS INC.
By: /s/ John M. Siebert
-------------------
John M. Siebert
Title: President and Chief Executive Officer
<PAGE> 1
FAEGRE & BENSON LLP
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
612-336-3000
April 14, 2000
Board of Directors
CIMA LAB INC.
10000 Valley View Road
Eden Prairie, Minnesota 55344
Gentlemen:
In connection with the proposed registration under the Securities Act of
1933, as amended, of 1,100,000 shares of Common Stock, par value $.01 per share,
of CIMA LABS INC., a Delaware corporation (the "Company"), proposed to be sold
by certain selling stockholders of the Company, we have examined such corporate
records and other documents, including the Registration Statement on Form S-3,
dated the date hereof, relating to such shares (the "Registration Statement"),
and have reviewed such matters of law as we have deemed necessary for this
opinion, and we advise you that in our opinion:
1. The Company is a corporation existing under the laws of the State of
Delaware.
2. The shares of Common Stock proposed to be sold by the selling
stockholders named in the Registration Statement, when sold as
contemplated in the Registration Statement, will be legally and
validly issued and fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm wherever appearing therein.
Very truly yours,
/s/ FAEGRE & BENSON LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 (Form S-3 No. 00000) and related
Prospectus of CIMA LABS INC. for the registration of 1,100,000 shares of its
common stock and to the incorporation by reference therein of our report dated
February 11, 2000, except for Note 9 as to which the date is March 17, 2000,
with respect to the financial statements and schedule of CIMA LABS INC. included
in its Annual Report on Form 10-K for the year ended December 31, 1999, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
April 14, 2000
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, the undersigned director and/or
officer of CIMA LABS INC., a Delaware corporation, does hereby make, constitute
and appoint John M. Siebert and David A. Feste, and each or any of them, the
undersigned's true and lawful attorneys-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, to sign and affix the undersigned's name as such director
and/or officer of said Corporation to a Registration Statement on Form S-3 or
other applicable form, and any or all amendments, including post-effective
amendments thereto, under the Securities Act of 1933, as amended (the "Act"), to
be filed by said Corporation with the Securities and Exchange Commission,
Washington, D.C. in connection with the registration under the Act of equity
securities sold by said Corporation, and file the same, with all exhibits
thereto and other supporting documents pertaining to the registration of the
securities covered thereby, with said Commission, granting unto said
attorneys-in-fact and agents, and each or any of them, full power and authority
to do and perform each and every act and thing requisite and necessary or
incidental to the performance and execution of the powers herein expressly
granted, to be done in and about the premises, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney on the
date set forth below.
Signature Date
--------- ----
/s/ John M. Siebert March 31, 2000
- -----------------------------------------------------
John M. Siebert
President & Chief Executive Officer
(Principal Executive Officer) and Director
/s/ Terrence W. Glarner March 31, 2000
- -----------------------------------------------------
Terrence W. Glarner
Director
/s/ Steven B. Ratoff March 31, 2000
- -----------------------------------------------------
Steven B. Ratoff
Director
/s/ Joseph R. Robinson March 31, 2000
- -----------------------------------------------------
Joseph R. Robinson
Director
