As Filed With the Securities and Exchange Commission on August 20, 1997
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COLUMBIA LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 59-2758596
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2665 SOUTH BAYSHORE DRIVE
MIAMI, FLORIDA 33133
(305) 860-1670
(Address of Principal Executive Offices)
1996 LONG-TERM PERFORMANCE PLAN
(Full title of plan)
Norman M. Meier, President
Columbia Laboratories, Inc.
2665 South Bayshore Drive
Miami, Florida 33133
(305) 860-1670
(Name, address, and telephone number,
including area code, of agent for service)
Copies to:
Stephen M. Besen, Esq.
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
(212) 310-8574
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
- ----------------- --------------- ------------------ -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per 3,000,000
share shares $16,625 $49,875 $ 15,113.63
</TABLE>
(1) Inserted solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The fee is calculated on the basis of the
average high and low prices for the Registrant's Common Stock reported
on the American Stock Exchange on August __, 1997.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed pursuant to Section 13 (a) of the Securities
Exchange Act of 1934, as amended ("Exchange Act").
b) The Company's Proxy Statement dated August 26, 1996 for the annual
meeting of shareholders held on October 2, 1996.
c) The Company's Form 10-Q for the three months ended March 31, 1997.
d) The Company's Form 10-Q for the six months ended June 30, 1997.
d) The description of the Company's common stock contained in the
Post-Effective Amendment No. 1 to the Registration Statement on Form
S-1 dated April 11, 1997 (Registration No. 333-02427).
All documents subsequently filed by the Company with the Securities and Exchange
Commission pursuant to Section 13 (a), 13 (c) , 14 and 15 (d) of the Exchange
Act, prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all such securities then
remaining unsold, shall be deemed to be incorporated by reference in the
registration statement and to be apart thereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The description of the Company's common stock, contained in the Post-Effective
Amendment No. 1 to the Registration Statement on Form S-1 dated April 11, 1997
(Registration No. 333-02427) is incorporated by reference and contains the
information required by Item 202 of Regulation S-K.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Delaware General Corporation Law and the Company's Restated and
Amended Certificate of Incorporation, the Company has agreed to indemnify its
directors and officers against liabilities which they may incur while serving as
directors or officers of the Company, including liabilities arising under the
Securities Act. Under the Company's Restated and Amended Certificate of
Incorporation, the Company has limited the extent to which a director of the
Company may be liable to the Company or any shareholder for monetary damages for
breach of fiduciary duty as a director to the extent permitted by Section 102
(b) (7) of the Delaware General Corporation Law. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted pursuant to the
foregoing provisions, the Company has been informed that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. The
Company also maintains an insurance policy for directors and officers that may
insure them against certain liabilities incurred by them in the performance of
their duties, including liabilities under the Securities Act.
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<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
The following are filed herewith as part of this Registration
Statement:
EXHIBIT NO. EXHIBIT
- ----------- -------
4.1 1996 Long-term Performance Plan is incorporated by
reference to the Company's Proxy Statement dated August 26,
1996
5.1 Opinion of Weil, Gotshal & Manges as to the legality of the
securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 The consent of Weil, Gotshal & Manges, to the use of
their opinion as an exhibit to this Registration
Statement is included in their opinion filed herewith
as Exhibit 5.1
25 Power of attorney is included on the signature page included herein
ITEM 9. 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;
(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 (a) (1) (i) and (a) (1) (ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15 (d) of the Securities
Act of 1934 that are incorporated by reference in the registration
statement.
II-2
<PAGE>
(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.
(4) 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 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) 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 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>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Miami, State of Florida on August 14, 1997.
COLUMBIA LABORATORIES, INC.
By: /S/ MARGARET J. ROELL
------------------------------------
Margaret J. Roell, Vice President
Know all persons by these presents, that each person whose signature
appears below constitutes and appoints Norman M. Meier or Margaret J. Roell his
attorney-in-fact, with power of substitution, for him or her in any and all
capacities, to sign any amendments to this registration statement on Form S-8,
and to file same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his substitute or substitutes, may
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/S/ NORMAN M. MEIER President, Chief Executive August 18, 1997
- -------------------------------- Officer, Director
Norman M. Meier (Principal Executive Officer)
/S/ WILLIAM J. BOLOGNA Chairman of the Board of Directors August 18, 1997
- --------------------------------
William J. Bologna
/S/ NICHOLAS A. BUONICONTI Vice Chairman of the Board of Directors August 14, 1997
- ----------------------------------- Chief Operating Officer
Nicholas A. Buoniconti
/S/ MARGARET J. ROELL Vice President-Finance and August 14, 1997
- --------------------------------- Administration, Chief Financial
Margaret J. Roell Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
/S/ JEAN CARVAIS Director August 15, 1997
- ------------------------------
Jean Carvais
/S/ IRWIN L. KELLNER Director August 15, 1997
- ------------------------------
Irwin L. Kellner
Director August __, 1997
- -----------------------------
Lila E. Nachtigall
Director August __, 1997
- ------------------------------
Robert C. Strauss
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
5.1 Opinion of Weil, Gotshal & Manges as to the legality
of the securities being registered
23.1 Consent of Arthur Andersen LLP
EXHIBIT 5.1
WEIL, GOTSHAL & MANGES LLP
A LIMITED PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
767 FIFTH AVENUE, NEW YORK, NY 10153-0119
(212) 310-8000
FAX: (212) 310-8007
August 20, 1997
Columbia Laboratories, Inc.
2665 Bayshore Drive
Miami, Florida 33133
Ladies and Gentlemen:
We have acted as counsel to Columbia Laboratories, Inc., a
Delaware corporation (the "Company"), in connection with the filing of the
Company's Registration Statement on Form S-8 under the Securities Act of 1933,
as amended (the "Registration Statement"). Terms defined in the Registration
Statement and not otherwise defined herein are used herein with the meanings as
so defined.
In so acting, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such corporate records,
agreements, documents and other instruments, and such certificates or comparable
documents of public officials and of officers and representatives of the
Company, and have made such inquiries of such officers and representatives, as
we have deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents. As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates or comparable
documents of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the 3,000,000 shares of common stock,
par value $0.01 per share, of the Company to be issued and sold by the Company
pursuant to the Registration Statement have been duly authorized and, when
issued and sold as
<PAGE>
Columbia Laboratories, Inc.
August 20, 1997
Page 2
contemplated by the Registration Statement and in accordance with the terms of
the Company's Long-Term Performance Plan, will be validly issued, fully paid and
nonassessable.
This opinion is rendered solely for your benefit in connection
with the transactions described above. This opinion may not be used or relied
upon by any other person and may not be disclosed, quoted, filed with a
governmental agency or otherwise referred to without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
---------------------------
Weil, Gotshal & Manages LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference of our report dated February 7, 1997 included in
Columbia Laboratories, Inc.'s Form 10-K for the year ended December 31, 1996,
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Miami, Florida,
August 15, 1997.
