As Filed with the Securities and Exchange Commission on June 11, 1999
Registration No. 333-75275
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-3
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 Number)
2875 NORTHEAST 191 STREET, SUITE 400
AVENTURA, FLORIDA 33180
(305) 933-6089
(Address, including ZIP code, and telephone number, including
area code, of registrant's principal executive offices)
DAVID L. WEINBERG
CHIEF FINANCIAL OFFICER
COLUMBIA LABORATORIES, INC.
2875 NORTHEAST 191 STREET, SUITE 400
AVENTURA, FLORIDA 33180
(305) 933-6089
(Name, address, including ZIP code, and telephone number, including area
code, of agent for service)
Copy to:
STEPHEN M. BESEN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If 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, please 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, please check this following
box and list the Securities Act registration number of the 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: [ ]
C:\DATA\EDGAR\#386144 v5.rtf
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THE INFORMATION CONTAINED IN THIS PROSPECTUS PROSPECTUS IS NOT COMPLETE AND MAY
BE CHANGED. THE SELLING STOCKHOLDERS IDENTIFIED IN THIS PROSPECTUS MAY NOT SELL
THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES
EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL NOR IS
IT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
Subject to completion, dated June 11, 1999
PROSPECTUS
COLUMBIA LABORATORIES, INC.
3,738,958 Shares of Common stock
The stockholders identified in this prospectus are offering:
o 2,378,571 shares of common stock underlying convertible
preferred stock owned by selling stockholders;
o 662,034 shares of common stock underlying a convertible
subordinated note owned by a selling stockholder; and
o 698,353 shares of common stock underlying warrants owned by
selling stockholders.
Columbia will not receive any of the proceeds from sales of the
shares.
Columbia common stock trades on the American Stock Exchange under
the symbol COB. On June 10, 1999, the last reported sale price of the common
stock on the AMEX was $8 1/8 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 2 OF THIS PROSPECTUS FOR A
DISCUSSION OF MATERIAL RISKS THAT AN INVESTOR SHOULD CONSIDER BEFORE BUYING
COLUMBIA 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.
The date of this prospectus is , 1999
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TABLE OF CONTENTS
THE COMPANY..............................................................2
RISK FACTORS.............................................................5
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.......................12
WHERE YOU CAN FIND MORE INFORMATION.....................................14
USE OF PROCEEDS.........................................................16
SELLING STOCKHOLDERS....................................................16
PLAN OF DISTRIBUTION....................................................20
LEGAL MATTERS...........................................................22
EXPERTS.................................................................22
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THE COMPANY
Because this is a summary, it does not contain all the information
about Columbia that may be important to you. You should read the more detailed
information and the financial statements and related notes which are
incorporated by reference in this Prospectus.
We are currently engaged in the development and sale of pharmaceutical
products and cosmetics. Our objective is to develop unique pharmaceutical
products that treat female specific diseases and conditions including:
o infertility;
o dysmenorrhea, painful uterine cramping associated with
menses;
o endometriosis, the growth of endometrial tissue outside the
uterus; and
o hormonal deficiencies.
We are also seeking to develop unique pharmaceutical products that treat
sexually transmitted diseases.
Our products primarily utilize our patented Bioadhesive Delivery
System. The Bioadhesive Delivery System is based upon the principal of
bioadhesion, a process by which the polymer, a large insoluble substance,
adheres to skin and other body surfaces and to mucin, a naturally occurring
secretion of the mucous membranes. The polymer remains attached to the surfaces
or the mucin and is discharged upon normal cell turnover. Cell turnover is a
normal process which, depending upon the area of the body, occurs every 12 to 72
hours. The extended period of attachment permits the Bioadhesive Delivery System
to be utilized in products when extended duration of effectiveness is desirable
or required.
Our first prescription drug utilizing the Bioadhesive Delivery System,
Crinone(R), is a sustained release, vaginally delivered, natural progesterone
product. Progesterone is a hormone manufactured by a woman's ovary in the second
half of the menstrual cycle. By delivering progesterone directly to the uterus,
a process we call "First Uterine Pass Effect"(C), it maximizes the therapeutic
benefit. It also avoids side effects seen with orally-delivered synthetic
progesterone-like drugs. In May 1997, we received U.S. marketing approval for
Crinone from the FDA for use as progesterone supplementation or replacement as
part of a treatment program for infertile women. In July 1997, we received U.S.
marketing approval for Crinone from the FDA for the treatment of secondary
amenorrhea, which is the loss of the menstrual period. Outside the U.S., Crinone
has been approved for marketing for one or more medical indications in a variety
of European and Latin American countries.
In May 1995, we entered into a worldwide, except for South Africa,
license and supply agreement with American Home Products Corporation. As part of
the agreement, the Wyeth-Ayerst Laboratories division of AHP marketed Crinone.
Under the terms of the agreement, we have earned $17 million in milestoenes
payments as of December 31, 1998. On May 27, 1999, AHP and Ares-Serone, a Swiss
pharmaceutical company, signed an assignment and royalty agreement. The
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agreement is subject to the satisfaction of several conditions, including
approval by the U.S. Department of Justice. If the agreement is completed, we
will supply Crinone to Ares-Serone under the same terms as in our agreement with
AHP.
In addition, we produce the following products:
o Advantage-S, our female contraceptive gel;
o Replens, which replenishes vaginal moisture on a sustained
basis and relieves the discomfort associated with vaginal
dryness;
o Advanced Formula Legatrin PM(R), for the relief of
occasional pain and sleeplessness associated with minor
muscle aches such as night leg cramps;
o Vaporizer in a bottle(R), a portable cough suppressant for
the temporary relief of a cough due to the common cold; and
o Diasorb(R), a pediatric antidiarrheal product.
In June 1998, we announced that we had been granted an Investigational
New Drug Application by the FDA for Chronodyne(R), a product intended to relax
the uterus and prevent abnormal contractions. This product may be useful in the
treatment of disorders such as:
o dysmenorrhea;
o difficult and painful menstruation; and
o for the treatment and prevention of endometriosis.
Our research in endocrinology has also led to the development of the
testosterone bioadhesive buccal tablet, a product to treat "Andropause" in men.
Like the failure of the ovaries in menopausal women to produce estrogen,
andropause occurs upon the failure of the testes to produce sufficient
testosterone in men. This, in turn, results in increasing levels of Follicle
Stimulating Hormone, a natural hormone in the male pituitary gland which
stimulates the testicles to produce testosterone. This may have the same impact
as menopause in women, including
o increased risk of cardiovascular disease;
o Alzheimer's disease; and
o osteoporosis.
Our testosterone bioadhesive buccal tablet may play an important role in the
treatment of angina, the pain associated with the clogging of the coronary
arteries, and in the secondary prevention of a heart attack.
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We have focused on women's health care because of the significant
number of women's health and hygiene needs which have not been met by available
products and because we have found vaginal delivery of pharmaceutical products
to be particularly effective. We intend to continue to develop products that
improve the delivery of previously approved drugs.
Our principal executive offices are located at:
2875 Northeast 191st Street, Suite 400
Aventura, Florida 33180
(305) 933-6089
Our subsidiaries, all of which are wholly-owned, are Columbia
Laboratories (Bermuda) Ltd., Columbia Laboratories (France) SA, Columbia
Laboratories (UK) Limited and Columbia Research Laboratories, Inc.
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RISK FACTORS
You should carefully consider the following risk factors as well as the
other information contained and incorporated by reference in this prospectus
before making an investment in the common stock. Any one or a combination of
these risk factors may have a material adverse effect on Columbia.
OUR HISTORY OF LOSSES MAY RESULT IN A SHORTAGE OF WORKING CAPITAL FOR OUR
OPERATIONS.
We cannot assure you that funds generated from operations will be
sufficient to achieve our research and development plans. For the fiscal year
ended December 31, 1998, we had a net loss of $13,859,734, which was primarily
the result of a lack of sales and costly research and development activities.
Revenues from the sale of our principal product, Crinone 8%, were $2.5 million
in 1998, down from $11.2 million in 1997. This was primarily as a result of
reduced orders from a major customer. If we are unable to increase sales of our
current products, we expect to need additional funds to continue our research
and development, conduct pre-clinical trials and apply for regulatory approval,
if necessary. If we are unable to obtain additional funds, we may be unable to
continue operations.
WE FACE SIGNIFICANT COMPETITION FROM PHARMACEUTICAL AND CONSUMER PRODUCT
COMPANIES, WHICH MAY ADVERSELY IMPACT OUR MARKET SHARE.
We, and our partners, operate in or intend to enter intensely
competitive markets. We compete against established pharmaceutical and consumer
product companies which market products addressing similar needs. In addition,
numerous companies are developing, or in the future may develop, enhanced
delivery systems and products which compete with our present and proposed
products. Some competitors have greater financial, research and technical
resources. These competitors may also have greater marketing capabilities,
including the resources to implement extensive advertising campaigns. It is
possible that we may not have the resources to withstand these and other
competitive forces. As a result, we may lose market share.
Crinone 8%, although a natural progesterone product, competes in
markets with other progestins, both synthetic and natural, which may be
delivered orally, by injections or by suppositories. Some of the more successful
orally dosed products include Provera marketed by the Upjohn Company and Prempro
and Premphase marketed by American Home Products. Although we are not aware of
any product incorporating rate-controlled technology with respect to vaginal
lubrication, we believe that our Replens product competes in the same markets as
K-YJelly/registered trademark/ and Gyne-Moisturin/registered trademark/, vaginal
lubricants marketed by Johnson & Johnson Products, Inc. and Schering-Plough
Corporation, respectively. We also believe that our products Advantage-S,
Legatrin PM and Diasorb compete against numerous products in their respective
categories and that our product Vaporizer in a bottle/registered trademark/
competes against Vicks Vaporsteam, a product distributed by Richardson-Vicks,
Inc.
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STEPS TAKEN BY US TO PROTECT OUR PROPRIETARY RIGHTS MIGHT NOT BE ADEQUATE, IN
WHICH CASE, COMPETITORS MAY INFRINGE ON OUR RIGHTS OR DEVELOP SIMILAR PRODUCTS.
Our success and ability to compete is partially dependent on our
proprietary technology. We rely primarily on a combination of U.S. patents,
trademarks, copyrights, trade secret laws, third-party confidentiality and
nondisclosure agreements and other methods to protect our proprietary rights.
The steps we take to protect our proprietary rights, however, may not be
adequate. Third parties may infringe or misappropriate our copyrights,
trademarks and similar proprietary rights. Moreover, we may not be able or
willing, for financial, legal or other reasons, to enforce our rights. To this
date, we have never been a party to a proprietary rights action.
Even though we have patents covering our Bioadhesive Delivery System,
other companies may independently develop or obtain patent or similar rights to
equivalent or superior technologies or processes. Additionally, although we
believe that our patented technology has been independently developed and does
not infringe on the patents of others, we cannot assure you that our technology
does not and will not infringe on the patent of others. In the event of
infringement, we may be required to modify our technology or products, obtain
licenses or pay license fees. We may not be able to do so in a timely manner or
upon acceptable terms and conditions. This may have a material adverse effect on
our operations.
We have filed the following as trademarks in countries throughout the
world:
o "Replens"
o "Advantage-S"
o "Advantage-24"
o "Advantage-LA"
o "Crinone"
o "Chronodyne"
Such trademarks, however, may not afford us adequate protection or we
may not have the financial resources to enforce our rights under such
trademarks.
THE FAILURE OF OTHER COMPANIES TO SUCCESSFULLY PROMOTE OUR PRODUCTS COULD
ADVERSELY EFFECT OUR CASH FLOW.
We have entered into agreements with other companies for the
distribution and marketing of our Bioadhesive Delivery System products in the
U.S. and several foreign countries. Our success is dependent to a great extent
on the marketing efforts of our distribution and marketing partners, over which
we have limited ability to influence. The failure of these companies to
aggressively or successfully market our products could have a material adverse
effect on our cash flow.
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We may not be able to satisfy all of our obligations under these
agreements. Our obligations include developing the products to be sold and
obtaining regulatory approvals allowing for their sale. The failure to satisfy
our obligations under any of these agreements may result in modification or
termination of the relevant agreement. This could have a material adverse effect
on our business and financial condition. To this date, we have successfully met
our obligations.
As part of these agreements, several of our partners have the right of
first option or right of first refusal to license gynecological products that we
develop in the future. We are currently in discussions with these partners and
other companies regarding the potential licensing of other products. We cannot
assure you that we will be able to enter into any of these agreements or that we
will receive any up front payments or ongoing royalties. We also cannot assure
you that our partners will aggressively or successfully market these products.
OUR DEPENDENCE ON A PRINCIPAL SUPPLIER MAY LIMIT OUR ABILITY TO SECURE NECESSARY
MATERIALS.
Medical grade, cross-linked polycarbophil, the polymer used in our
products using our Bioadhesive Delivery System, is currently available from only
one supplier, B.F. Goodrich Company. We believe that Goodrich will supply as
much of the material as we require because our products rank among the highest
value-added uses of the polymer. In the event that Goodrich cannot or will not
supply enough of the product to satisfy our needs, we will be required to seek
alternative sources of polycarbophil. We cannot assure you that an alternative
source of polycarbophil can be obtained or that it can be obtained on
satisfactory terms.
WE DEPEND UPON THIRD PARTY MANUFACTURERS WHO MAY NOT BE ABLE TO MEET OUR FUTURE
NEEDS.
We rely on third parties to manufacture our products. These
manufacturers may not be able to satisfy our needs in the future. This could
have an adverse effect on our profit margins and our ability to deliver our
products on a timely and competitive basis.
GOVERNMENT REGULATION MAY DELAY MARKETING OF THE PRODUCTS WHICH WE ARE
DEVELOPING. DELAYS IN THE MARKETING OF OUR PRODUCTS COULD HAVE A MATERIAL
ADVERSE EFFECT ON OUR BUSINESS.
Nearly every aspect of the development, manufacture and
commercialization of our pharmaceutical products is subject to time consuming
and costly regulation by various governmental entities, including:
o the Food and Drug Administration;
o the Federal Trade Commission;
o applicable state agencies; and
o applicable regulatory agencies in those foreign countries
where our products are manufactured or distributed.
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For example, the agreement between AHP and Ares-Serone is subject to the
approval of the U.S. Department of Justice in accordance with the Hart Scott
Rodino Act before Ares-Serone will be permitted to market our product. Delays in
obtaining approval from these regulatory agencies can have material adverse
effects on our business and prospects.
As in the United States, almost all foreign countries require
pre-marketing approval by health regulatory authorities. For example, we are
currently awaiting approval by the Chinese Health Authorities to distribute our
Advantage-S product throughout China. Requirements for approval differ from
country to country and involve different types of testing. There can be
substantial delays in obtaining required approvals from regulatory authorities.
Even after approvals are obtained, there can be further delays encountered
before the products become commercially available. These delays can have
material adverse effects on our business and prospects.
OUR CURRENT INSURANCE COVERAGE COULD BE INSUFFICIENT. PRODUCT LIABILITY CLAIM
AWARDS IN EXCESS OF OUR INSURANCE COVERAGE COULD HAVE A MATERIAL ADVERSE EFFECT
ON OUR BUSINESS.
Due to the nature of our business, we may be exposed to product
liability claims by consumers. Although we presently maintain product liability
insurance coverage in the amount of $15 million, this may not be sufficient to
cover all possible liabilities. An award against us in an amount greater than
our insurance coverage could have a material adverse effect on our operations.
Some food and drug retailers require us to have a minimum level of
product liability insurance coverage before they will purchase or accept our
products for retail distribution. Our failure to satisfy insurance requirements
could limit our ability to achieve broad retail distribution of our products.
This could have a material adverse effect upon our business and financial
condition.
LAKE PHARMACEUTICALS, INC. HAS FILED AN ACTION AGAINST US. AN AWARD AGAINST US
COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR OPERATIONS.
Lake Pharmaceuticals, Inc. has filed an action against us in the United
States District Court, Northern District of Illinois. Lake claims it suffered
damages of an unspecified amount as a result of the FDA's allegations in July
1997 that our nonoxynol-9 product, then marketed by Lake under the tradename
Advantage-24, was not permitted under the FDA's approval to be sold with a 24
hour claim. This action was dismissed by the Illinois Court and it was
transferred to the United States District Court for the Southern District of
Florida to be combined with a suit that we have brought against Lake seeking a
declaratory judgment on certain contract related issues. Should we be found
liable, Lake is seeking damages of at least $5 million. We believe, however, if
Lake prevails, damages, if any, incurred by Lake are much less than claimed and
will be more in the range of $525,000. An award against us could have a material
adverse effect on our operations as we do not have insurance to cover this type
of claim.
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THE LOSS OF OUR KEY EXECUTIVES COULD HAVE A SIGNIFICANT IMPACT ON OUR COMPANY.
Our success depends in large part upon the abilities and continued
service of our executive officers and other key employees, particularly Norman
M. Meier, our President and Chief Executive Officer, and William J. Bologna, our
Chairman of the Board of Directors. We have entered into employment agreements
with Messrs. Meier and Bologna which expire on December 31, 2000. The loss of
services of these persons could have a material adverse effect on our business
and prospects.
OUR ABILITY TO USE NET OPERATING LOSS CARRYFORWARDS COULD BE REDUCED OR LOST.
THIS COULD ADVERSELY AFFECT OUR NET INCOME AND CASH FLOW.
As of December 31, 1998, we had net operating loss carryforwards of
approximately $49 million that can be used to reduce our future U.S. federal
income tax liabilities. Our ability to use these loss carryforwards to reduce
our future U.S. federal income tax liabilities could be lost if we were to
experience more than a 50% change in ownership within the meaning of Section
382(g) of the Internal Revenue Code on or before December 31, 2013. If we were
to lose the benefits of these loss carryforwards, our earnings and cash
resources would be materially and adversely affected.
WE DO NOT INTEND TO PAY CASH DIVIDENDS ON OUR COMMON STOCK. AS A RESULT, YOU
WILL NOT RECEIVE ANY PERIODIC INCOME FROM AN INVESTMENT IN OUR COMMON STOCK.
We have never paid a cash dividend on our common stock and we do not
anticipate paying cash dividends in the foreseeable future. We intend to retain
any earnings for use in the development and expansion of our business. In
addition, applicable provisions of Delaware law may affect our ability to
declare and pay dividends on our common stock and our preferred stock.
Accordingly, you should not expect to receive any periodic income from owning
our common stock. Any economic gain on your investment will be solely from an
appreciation, if any, in the price of the stock.
SALES OF LARGE AMOUNTS OF COMMON STOCK MAY ADVERSELY AFFECT OUR MARKET PRICE.
Sales of large amounts of common stock in the open market could cause
the market price of our common stock to drop. We currently have 28,684,687
shares of common stock outstanding, of which 25,322,126 shares are freely
tradable. Approximately 3,362,561 shares of our common stock are restricted
securities, but may be sold pursuant to Rule 144. We also have the following
securities outstanding:
o Series A Convertible Preferred Stock
o Series B Convertible Preferred Stock
o Series C Convertible Preferred Stock
o a subordinated convertible note
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o warrants and options
If all of these securities are exercised or converted, an additional 9,290,331
shares of common stock will be outstanding, all of which have been registered
under the Securities Act. When issued, these shares will be freely tradable. The
exercise and conversion of these securities is likely to dilute the book value
per share of the common stock. In addition, the existence of these securities
may adversely affect the terms on which we can obtain additional equity
financing.
ANTI-TAKEOVER PROVISIONS COULD IMPEDE OR DISCOURAGE A THIRD-PARTY ACQUISITION OF
OUR COMPANY. THIS COULD PREVENT STOCKHOLDERS FROM RECEIVING A PREMIUM OVER
MARKET PRICE FOR THEIR STOCK.
Columbia is a Delaware corporation. Anti-takeover provisions of
Delaware law impose various obstacles to the ability of a third party to acquire
control of our company, even if a change in control would be beneficial to our
existing stockholders. In addition, our board of directors has the power,
without stockholder approval, to designate the terms of one or more series of
preferred stock and issue shares of preferred stock, which could be used
defensively if a takeover is threatened. Our incorporation under Delaware law
and our board's ability to create and issue a new series of preferred stock
could impede a merger, takeover or other business combination involving our
company or discourage a potential acquiror from making a tender offer for our
common stock. This could reduce the market value of our common stock if
investors view these factors as preventing stockholders from receiving a premium
for their shares.
SOME OF THE PARTIES ON WHICH WE RELY MAY HAVE YEAR 2000 TECHNOLOGY PROBLEMS
WHICH ULTIMATELY MAY DISRUPT OUR BUSINESS.
In operating our business, we are dependent on information technology
and process control systems that employ computers as well as embedded
microprocessors. We also depend on the proper functioning of the business
systems of third parties. Many computer systems and microprocessors can only
process dates in which the year is represented by two digits. As a result, some
of these systems and processors may interpret "00" incorrectly as the year 1900
instead of the year 2000, in which event they could malfunction or become
inoperable after December 31, 1999. Systems and processors that can properly
recognize the year 2000 are referred to as "year 2000 compliant."
We believe that we have developed an effective program to address our
year 2000 problem. Based upon current plans and assumptions, we do not expect
that the year 2000 problem will have a material adverse impact on our financial
condition or results of operations. We cannot, however, assure you that this
will be the case. Additionally, we cannot assure you that systems of third
parties on which we rely will be year 2000 compliant in a timely manner or that
a failure to be year 2000 complaint by another company will not have a material
adverse impact on our financial condition or results of operations. The possible
consequences to us of these parties not being fully year 2000 compliant include:
o delays in delivery of our products;
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o delays in the receipt of supplies by us;
o invoice and collections errors; and
o inventory obsolescence.
The ability of third parties with whom we transact business to
adequately address their year 2000 issues is outside of our control.
Furthermore, our expectations are also based on the assumption that there will
be no general failure of external local, national or international systems,
including power, communications, postal or transportation systems, necessary for
the ordinary conduct of our business.
THE EURO CONVERSION MAY NEGATIVELY IMPACT OUR EUROPEAN OPERATIONS.
With two operating subsidiaries in Europe, economic and political
developments in the European Union can have a significant impact on our
business. For fiscal year 1998, 25.0% of our revenues were attributable to sales
of our product in Europe. On January 1, 1999, eleven member countries of the
European Union established fixed conversion rates between their existing
currencies and one common currency, the Euro. The Euro trades on currency
exchanges and may be used in business transactions. Under the regulations
governing the transition to the Euro, there is a "no compulsion, no prohibition"
rule which states that no one is obligated to use the Euro until notes and
coinage have been introduced on January 1, 2002. Beginning in January 2002, new
Euro-denominated bills and coins will be issued and existing currencies will be
withdrawn from circulation.
Our operating subsidiaries affected by the Euro currency conversion
have established plans to address the systems and business issues raised by the
Euro currency conversion. These issues include:
o the need to adapt computer and other business systems and
equipment to accommodate Euro-denominated transactions; and
o the competitive impact of cross-border price transparency
which may make it more difficult for business to charge
different prices for the same products on a
country-by-country basis, particularly once the Euro
currency is issued in 2002.
Based on current plans and assumptions, we do not expect that the Euro
conversion will have a material adverse impact on our financial condition or
results of operations. Uncertainties, however, exist as to the effects the Euro
currency may have on our European clients, as well as the impact of the Euro
conversion on the economies of the participating countries. In addition, the
increased price transparency that will be caused by the introduction of the Euro
may negatively impact the pricing of our products in different participating
countries. We will continue to evaluate the impact of the introduction of the
Euro as we continue to expand our services and the European locations in which
we operate.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The statements contained or incorporated by reference in this
prospectus that are not historical facts are "forward-looking statements," as
that term is defined in the Private Securities Litigation Reform Act of 1995. In
addition, from time to time, we, or our representatives, have made or may make
forward-looking statements, orally or in writing. Furthermore, forward-looking
statements may be included in our filings with the SEC as well as in press
releases or oral presentations made by or with the approval of one of our
authorized executive officers. Forward-looking statements include all statements
about our future strategy and most other statements that are not historical in
nature. Forward-looking statements are generally identified by words such as
"believes," "estimates," "expects,", "intends," "may," "will," "should," or
"anticipates." Such statements include, without limitation, our expectations
regarding:
o sales;
o earnings or other future financial performance and
liquidity;
o product introductions;
o entry into new geographic regions; and
o general optimism about future operations or operating
results.
We caution you to bear in mind that forward-looking statements, by
their very nature, involve assumptions and expectations and are subject to risks
and uncertainties. Although we believe that the assumptions and expectations
reflected in the forward-looking statements contained in this prospectus are
reasonable, we cannot assure you that those assumptions or expectations will
ultimately be correct. Important factors that could cause actual results to
differ materially from our expectations are disclosed in this prospectus under
the caption "Risk Factors." These factors include the following:
o increased competitive activity from companies in the
pharmaceutical industry, some of which have greater
resources;
o social, political and economic risks to our foreign
operations, including changes in foreign investment and
trade policies, including changes in accounting standards,
that affect, or will affect, Columbia in the United States
and abroad;
o foreign currency fluctuations affecting the relative prices
at which we and foreign competitors sell our products in the
same market; and
o the ability of Columbia and third parties, including
customers or suppliers, to adequately address year 2000
issues.
Additional information on factors that may affect the business and
financial results can be found in our filings with the SEC. All forward-looking
statements should be considered in light of these risks and uncertainties. We
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assume no responsibility to update forward-looking statements made in this
prospectus.
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WHERE YOU CAN FIND MORE INFORMATION
Federal securities law requires us to file information with the
Securities and Exchange Commission concerning our business and operations.
Accordingly, we file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms located at 450 Fifth Street, N.W., Washington,
D.C. 20549. You can also do so at the following regional offices of the
Commission:
o Seven World Trade Center, 13th Floor, New York, New York
10048.
o Northwest Atrium Center, 5000 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511.
Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public from
the SEC's web site at: http://www.sec.gov. Copies of these reports, proxy
statements and other information also can be inspected at the offices of the
American Stock Exchange at 86 Trinity Place, New York, NY 10006-1881.
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act, with respect to the common stock that the selling
stockholders may offer under this prospectus. This prospectus, which is a part
of the registration statement, does not include all the information contained in
the registration statement and its exhibits. For further information with
respect to Columbia and the common stock, you should consult the registration
statement and its exhibits. Statements contained in this prospectus concerning
the provisions of any documents are summaries of those documents, and we refer
you to the document filed with the SEC for more information. The registration
statement and any of its amendments, including exhibits filed as a part of the
registration statement or an amendment to the registration statement, are
available for inspection and copying as described above.
The SEC allows us to "incorporate by reference" the information we file
with them. This means that we can disclose important information to you by
referring you to the other information we have filed with the SEC. The
information that we incorporate by reference is considered to be part of this
prospectus. Information that we file later with the SEC will automatically
update and supersede this information.
The following documents filed by Columbia with the SEC pursuant to the
Securities Act of 1933, and the Exchange Act of 1934 (File No. 1-12145) and any
future filings under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act made
prior to the termination of the offering are incorporated by reference:
o Columbia's Annual Report on Form 10-K for its fiscal year
ended December 31, 1998;
o Columbia's Current Report on Form 8-K filed with the SEC on
January 7, 1999; and
14
<PAGE>
o Columbia's Quarterly Report on Form 10-Q for its first
quarter ended March 31, 1999.
You can request a free copy of the above filings or any filings
subsequently incorporated by reference into this prospectus by writing or
calling us at:
Columbia Laboratories, Inc.
2875 Northeast 191 Street, Suite 400
Aventura, Florida 33180
Attention: David L. Weinberg, Chief Financial Officer
Telephone: (305) 933-6089
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE
ELSE TO PROVIDE YOU WITH ADDITIONAL OR DIFFERENT INFORMATION. THE COMMON STOCK
IS NOT BEING OFFERED IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD
NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT IS ACCURATE
AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF SUCH DOCUMENTS.
15
<PAGE>
USE OF PROCEEDS
The shares of common stock being offered are solely for the accounts of
the selling stockholders pursuant to various registration rights agreements and
warrants agreements. We will not receive any proceeds from the sale of the
common stock. See "Selling Stockholders."
SELLING STOCKHOLDERS
The 3,738,958 shares of common stock which may be offered and sold
pursuant to this prospectus are issuable upon:
o conversion of Columbia's outstanding 7 1/8% Convertible
Subordinated Note;
o conversion of Columbia's outstanding Series C Convertible
Preferred Stock; and
o exercise of certain outstanding warrants issued by Columbia.
In connection with the issuance of these securities, we entered into various
agreements that require us to file a registration statement covering the common
stock issuable upon conversion or exercise of these securities. This prospectus
is a part of the registration statement we filed with the SEC covering the
common stock.
The following table sets forth information about the selling
stockholders and the number of shares of common stock beneficially owned by
them, including upon conversion or exercise of the convertible note, the
convertible preferred stock and the warrants. We received this information from
the selling stockholders. Except as disclosed in this prospectus, none of the
selling stockholders has, or within the past three years has had, any position,
office or other material relationship with Columbia or any of its predecessors
or affiliates. Because the selling stockholders may offer all or some portion of
the common stock pursuant to this prospectus, no estimate can be given as to the
number of shares of common stock that will be held by the selling stockholders
upon termination of any sales of the common stock. In addition, the selling
stockholders identified below may have sold, transferred or otherwise disposed
of all or a portion of their securities since the date on which they provided
the information regarding their securities in transactions exempt from the
registration requirements of the Securities Act.
The shares of common stock are being registered to permit public
secondary trading of the shares and the selling stockholders may offer the
shares for sale from time to time. See "Plan of Distribution."
16
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Number of
Beneficial Shares Covered
Ownership at May by this Beneficial Ownership
17, 1999 Prospectus After Offering
-------- ---------- --------------
Selling Stockholders Number of Shares Number of Shares Percent of Class (1)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Achieve Fund (2) 300,936 98,036 202,900 *
- -------------------------------------------------------------------------------------------------------------------
Allen & Co. 49,253 49,253 0 *
- -------------------------------------------------------------------------------------------------------------------
Anthony Campbell (3) 141,300 100,000 41,300 *
- -------------------------------------------------------------------------------------------------------------------
Aries Trading LTD. 243,929 78,429 165,500 *
- -------------------------------------------------------------------------------------------------------------------
Bernard Marden 713,930 196,071 517,859 1.60%
- -------------------------------------------------------------------------------------------------------------------
Christopher Castroviejo 29,607 19,607 10,000 *
- -------------------------------------------------------------------------------------------------------------------
David Landau 19,607 19,607 0 *
- -------------------------------------------------------------------------------------------------------------------
David M. Knott (4) (5) 1,024,820 43,920 980,900 3.03%
- -------------------------------------------------------------------------------------------------------------------
David Ray 339,286 98,036 241,250 *
- -------------------------------------------------------------------------------------------------------------------
Delaware Charter Guarantee & Trust FBO 19,607 19,607 0 *
Robert W. Ledoux Roth IRA
- -------------------------------------------------------------------------------------------------------------------
Derwent Limited 392,143 392,143 0 *
- -------------------------------------------------------------------------------------------------------------------
George Voelker 39,214 39,214 0 *
- -------------------------------------------------------------------------------------------------------------------
James J. Apostolakis (4) (6) 1,241,936 198,036 1,043,900 3.22%
- -------------------------------------------------------------------------------------------------------------------
James R. Berdell - Roth IRA 39,214 39,214 0 *
- -------------------------------------------------------------------------------------------------------------------
John Fenlin (7) 32,629 23,529 9,100 *
- -------------------------------------------------------------------------------------------------------------------
John Gildea 49,414 39,214 10,200 *
- -------------------------------------------------------------------------------------------------------------------
John W. Bendall, Jr. 11,000 11,000 0 *
- -------------------------------------------------------------------------------------------------------------------
Jupiter Partners 58,821 58,821 0 *
- -------------------------------------------------------------------------------------------------------------------
Knott Partners, L.P. (4) 885,866 465,866 420,000 1.30%
- -------------------------------------------------------------------------------------------------------------------
Mallory Factor 140,514 39,214 101,300
- -------------------------------------------------------------------------------------------------------------------
Morrison Family Trust (8) 297,250 137,250 160,000 *
- -------------------------------------------------------------------------------------------------------------------
Narragansett Capital Partners L.P. 39,214 39,214 0 *
- -------------------------------------------------------------------------------------------------------------------
Norman M. Meier (4) (9) 1,982,850 137,250 1,845,600 5.69%
- -------------------------------------------------------------------------------------------------------------------
SBC Warburg Dillon Read 662,034 662,034 0 *
- -------------------------------------------------------------------------------------------------------------------
Shephard Lane (10) 163,000 25,000 138,000 *
- -------------------------------------------------------------------------------------------------------------------
Terry Van Der Tuuk 49,214 39,214 10,000 *
- -------------------------------------------------------------------------------------------------------------------
William J. Bologna (11) 3,030,334 98,036 2,932,298 9.04%
- -------------------------------------------------------------------------------------------------------------------
Windsor Partners, L.P. (3) 955,157 156,857 798,300 2.59%
- -------------------------------------------------------------------------------------------------------------------
Value Management & Research UK (12) 60,000 60,000 0 *
(13)
- -------------------------------------------------------------------------------------------------------------------
Value Management & Research AG (12) 120,000 120,000 0 *
(14)
- -------------------------------------------------------------------------------------------------------------------
Value Management & Research Luxembourg 235,286 235,286 0 *
SA (12) (15)
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
* Less than 1.0%
-------------------------
(1) Based upon 32,423,645 shares of common stock. This includes 28,684,687
shares of common stock outstanding as of May 10, 1999, plus the
3,738,958 shares of common stock registered pursuant to this
registration statement.
17
<PAGE>
(2) Mr. Morrison, the beneficiary of the Morrison Family Trust, is the
general partner of the Achieve Fund, and therefore, may be deemed the
beneficial owner of the shares owned by the Achieve Fund.
(3) Mr. Campbell is the general partner of Windsor Partners, L.P. and
therefore, may be deemed the beneficial owner of the shares owned by
Windsor Partners, L.P.
(4) Columbia, William J. Bologna, Norman M. Meier, David M. Knott, Knott
Partners, L.P., James J. Apostolakis, Anthony R. Campbell, David Ray
and Bernard Marden have entered into an agreement dated December 14,
1998, that, among other things, expresses their understandings and
agreements with respect to the nomination of persons to serve on
Columbia's board of directors during the period commencing on December
14, 1998 and ending immediately prior to Columbia's 2000 Annual
Meeting of the stockholders or December 31, 2000, if sooner.
(5) Mr. Knott beneficially owns:
o 600 shares of common stock held in the IRA account of his wife;
o 96,100 shares of common stock held in a managed account where he
shares the power to vote and dispose of the shares; and
o 448,000 shares of common stock held in other managed accounts
where he holds the sole power to vote and dispose of the shares.
Additionally, Mr. Knott is the general partner of Knott Partners, L.P.
and, as a result, may be deemed the beneficial owner of the shares
owned by Knott Partners, L.P.
(6) Since January 1999, Mr. Apostolakis has served as the vice-chairman
and a director on the board of directors. Of the 1,241,936 shares
beneficially owned by Mr. Apostolakis, 170,750 common shares are owned
by corporations owned by Mr. Apostolakis and 17,625 common shares are
owned by pension plans and an IRA for the benefit of Mr. Apostolakis.
(7) Of the 32,629 shares beneficially owned by Mr. Fenlin, 8,500 are held
in a 401k account for his benefit and 600 are held in a custodial
account for Mr. Fenlin's son, for which Mr. Fenlin is the custodian.
(8) Mr. Richard Morrison, the beneficiary of the Morrison Family Trust, is
the general partner of the Achieve Fund.
(9) Mr. Meier has been the President and Chief Executive Officer of
Columbia since its inception.
(10) Mr. Shephard has acted as general legal counsel to Columbia for the
last three years.
18
<PAGE>
(11) Mr. Bologna serves as Chairman of the Board. Of the 3,030,334 shares
beneficially owned by Mr. Bologna, 198,062 shares are held by his wife
and 42,834 shares are held in trusts for which Mr. Bologna is the
grantor and his wife and children are the beneficiaries.
(12) Value Management & Research AG is the majority shareholder of Value
Management & Research UK and Value Management & Research Luxembourg
SA.
(13) Value Management & Research UK received beneficial ownership of the
shares in accordance with an investment relations agreement with
Columbia.
(14) Value Management & Research AG received beneficial ownership of the
shares in accordance with a consulting agreement with Columbia. VMR AG
receives $5,000 per month from Columbia for financial advice and
investor relations services.
(15) Value Management & Research Luxembourg SA is a party to an investment
relations agreement with Columbia. VMR Luxembourg SA receives $5,000
per month from Columbia for financial advice and investor relations
services.
19
<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares of common stock covered by
this prospectus from time to time at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The selling stockholders may offer their shares for sale in one or more
of the following transactions:
o on the AMEX;
o through the facilities of any national securities exchange or
U.S. automated inter-dealer quotation system of a registered
national securities association on which any of the shares of
common stock are then listed, admitted to unlisted trading
privileges or included for quotation;
o in privately negotiated transactions; or
o in a combination of such methods of sale.
The selling stockholders may sell their shares directly, or indirectly
through underwriters, broker-dealers or agents acting on their behalf, and in
connection with such sales, the broker-dealers or agents may receive
compensation in the form of commissions, concessions, allowances or discounts
from the selling stockholders and/or the purchasers of the shares for whom they
may act as agent or to whom they sell the shares as principal or both, which
commissions, concessions, allowances or discounts might be in excess of
customary amounts thereof. Sales will be made only through broker-dealers
registered as such in a subject jurisdiction or in transactions exempt from such
registration. We have not been advised of any selling arrangement at the date of
this prospectus between any selling stockholder and any broker-dealer or agent.
We will not receive any of the proceeds from the sale of the shares by the
selling stockholders.
In connection with the distribution of the shares, certain of the
selling stockholders may enter into hedging transactions with broker-dealers. In
connection with these transactions, broker-dealers may engage in short sales of
the shares in the course of hedging the positions they assume with the selling
stockholders. The selling stockholders may also sell the shares short and
redeliver the shares to close out the short positions. The selling stockholders
may also enter into option or other transactions with broker-dealers which
require the delivery of the shares to the broker-dealer. The selling
stockholders may also loan or pledge the shares to a broker-dealer and the
broker-dealer may sell the shares so loaned, or upon a default, the
broker-dealer may effect sales of the pledged shares.
The selling stockholders and any dealer acting in connection with the
offering or any broker executing a sell order on behalf of a selling stockholder
may be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any profit on the sale of shares by a selling stockholder and any
commissions or discounts received by any the broker or dealer may be deemed to
be underwriting compensation under the Securities Act. In addition, the broker
20
<PAGE>
or dealer may be required to deliver a copy of this prospectus to any person who
purchases any of the shares from or through the broker or dealer.
Under the various registration rights agreements and warrant
agreements, according to which we filed the registration statement, we agreed to
file the reports required to be filed by us under the Securities Act and the
Exchange Act in a timely manner and to take such further action as any holder of
securities covered by the various registration rights agreements and warrant
agreements reasonably requests to enable the holder to sell his securities
without registration, including making publicly available the information
necessary to permit sales of the securities pursuant to Rules 144 and 144A under
the Securities Act.
Under the various registration rights agreement and warrant agreements,
we are required to bear certain fees and expenses incurred in connection with
the registration of the shares of common stock. Columbia and the selling
stockholders have agreed to indemnify the other against certain civil
liabilities, including certain liabilities arising under the Securities Act and
Exchange Act. To the extent indemnification is unavailable or insufficient, they
have agreed to contribute to the amount paid or payable in connection with these
liabilities.
21
<PAGE>
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
us by Weil, Gotshal & Manges LLP, New York, New York.
EXPERTS
The consolidated financial statements of Columbia as of December 31,
1997 and for each of the two years in the period ended December 31, 1997 and the
related schedule included in Columbia's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 and incorporated by reference in this
prospectus and elsewhere in the registration statement, have been audited by
Arthur Andersen LLP, independent public accountants; and as indicated in their
reports with respect thereto, are incorporated by reference herein in reliance
upon the authority of said firm as experts in giving said reports.
The consolidated financial statements of Columbia as of December 31,
1998 and for the year ended December 31, 1998 and the related schedule included
in Columbia's Annual Report on Form 10-K for the fiscal year ended December 31,
1998, and incorporated by reference in this prospectus and elsewhere in the
registration statement, have been audited by Goldstein Golub Kessler LLP,
independent public accountants. The reports of Goldstein Golub Kessler LLP on
the consolidated financial statements and the related schedule are incorporated
by reference in this document in reliance upon the authority of Goldstein Golub
Kessler LLP as experts in giving these reports.
22
<PAGE>
COLUMBIA LABORATORIES, INC.
3,738,958 SHARES
COMMON STOCK
PROSPECTUS
, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated amounts of the expenses of and related to offering are as
follows:
SEC registration fee..................................$ 5,626.36
Accounting fees and expenses..........................$ 8,000.00
Legal fees and expenses...............................$ 50,000.00
Miscellaneous.........................................$ 373.64
Total.................................................$ 64,000.00
Item 15. Indemnification of Directors and Officers
The registration is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "DGCL") empowers a Delaware
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of such corporation or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise. Such indemnification may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. A Delaware
corporation is permitted to indemnify directors, officers, employees and other
agents of such corporation in an action by or in the right of the corporation
under the same conditions, except that no indemnification is permitted without
judicial approval if the person to be indemnified has been adjudged to be liable
to the corporation. Where a director, officer, employee or agent of the
corporation is successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to above or in defense of any claim, issue
or matter therein, the corporation must indemnify such person against the
expenses (including attorneys' fees) which he or she actually and reasonably
incurred in connection therewith.
Columbia's bylaws provide that Columbia shall indemnify, to the full
extent and under the circumstances permitted by the DGCL in effect from time to
time, any past, present or future director or officer, made or threatened to be
made a party to an action or proceeding other than one by or in the right of
Columbia, by reason of the fact that such person is or was a director or
officer, or was serving in such capacities at another entity at the specific
request of Columbia, on the same conditions provided by the DGCL.
As permitted by Section 102(b)(7) of the DGCL, Columbia's certificate
of Incorporation contains a provision eliminating the personal liability of a
director to Columbia or its stockholders for monetary damages for breach of
fiduciary duty as a director, subject to certain exceptions.
Columbia maintains policies insuring its officers and directors against
certain civil liabilities, including liabilities under the Securities Act.
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
Exhibit No. Description
3.1 Restated Certificate of Incorporation, as amended (filed as
Exhibit 3.1 to Columbia's Registration Statement on Form S-1
(File No. 33-22062).*
4.1 Certificate of Designations, Preferences and Rights of Series C
Convertible Preferred Stock of Columbia, dated as of January
7,1999 (filed as Exhibit 4.1 to Columbia's Annual Report on Form
10-K for the year ended December 31, 1998 (the "1998-10-K)).*
4.2 Securities Purchase Agreement, dated as of January 19, 1999,
between Columbia and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.2 to the 1998 10-K).*
4.3 Securities Purchase Agreement, dated as of January 19, 1999,
among the Columbia, David M. Knott and Knott Partners, L.P.
(filed as Exhibit 4.3 to the 1998 10-K).*
4.4 Securities Purchase Agreement, dated as of February 1, 1999,
between the Columbia and Windsor Partners, L.P. (filed as Exhibit
4.4 to the 1998 10-K).*
4.5 Registration Rights Agreement, dated as of January 7, 1999,
between the Company and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.5 to the 1998 10-K).*
4.6 Form of Warrant to Purchase Common Stock, dated as of January 7,
1999 (filed as Exhibit 4.6 to the 1998 10-K).*
4.7 Form of Warrant to Purchase Common Stock.**
4.8 Convertible Note Purchase Agreement, 7 1/8% Convertible
Subordinated Note due March 15, 2005 and Registration Rights
Agreement all dated as of March 16, 1998 between the Company and
SBC Warburg Dillon Read Inc. (filed as Exhibit 10.12 to
Columbia's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998).*
5 Opinion of Weil, Gotshal & Manges LLP.**
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).**
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Goldstein Golub Kessler LLP.**
24 Power of Attorney. **
- --------------
* Incorporated by reference.
** Previously filed.
2
<PAGE>
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933.
(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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, 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 Securities Act of 1933, as
amended, 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,
3
<PAGE>
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 Securities Act of 1933, as amended,
and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Aventura, Florida, on this 10th day of June, 1999.
COLUMBIA LABORATORIES, INC.
By: /s/ David L. Weinberg
-------------------------------
David L. Weinberg
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<S> <C> <C>
SIGNATURE TITLE DATE
- --------- ----- ----
* President, Chief Executive Officer, June 10, 1999
- -------------------------------------------- Director
Norman M. Meier (Principal Executive Officer)
* Chairman of the Board of Directors June 10, 1999
- --------------------------------------------
William J. Bologna
* Vice Chairman of the Board of Directors June 10, 1999
- --------------------------------------------
James J. Apostolakis
Vice President-Finance and June 10, 1999
- -------------------------------------------- Administration, Chief Financial
David L. Weinberg Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
* Vice President-Pharmaceutical June 10, 1999
- -------------------------------------------- Development and Director
Dominique de Ziegler
* Director June 10, 1999
- --------------------------------------------
Jean Carvais
* Director June 10, 1999
- --------------------------------------------
Denis M. O'Donnell
* Director June 10, 1999
- --------------------------------------------
Selwyn P. Oskowitz
* Director June 10, 1999
- --------------------------------------------
Robert C. Strauss
*By: /s/ David L. Weinberg
-------------------------------------
David L. Weinberg
(Attorney-in-fact)
</TABLE>
5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
3.1 Restated Certificate of Incorporation, as amended (filed as
Exhibit 3.1 to Columbia's Registration Statement on Form S-1
(File No. 33-22062).*
4.1 Certificate of Designations, Preferences and Rights of Series C
Convertible Preferred Stock of Columbia, dated as of January
7,1999 (filed as Exhibit 4.1 to Columbia's Annual Report on Form
10-K for the year ended December 31, 1998 (the "1998-10-K)).*
4.2 Securities Purchase Agreement, dated as of January 19, 1999,
between Columbia and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.2 to the 1998 10-K).*
4.3 Securities Purchase Agreement, dated as of January 19, 1999,
among the Columbia, David M. Knott and Knott Partners, L.P.
(filed as Exhibit 4.3 to the 1998 10-K).*
4.4 Securities Purchase Agreement, dated as of February 1, 1999,
between the Columbia and Windsor Partners, L.P. (filed as Exhibit
4.4 to the 1998 10-K).*
4.5 Registration Rights Agreement, dated as of January 7, 1999,
between the Company and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.5 to the 1998 10-K).*
4.6 Form of Warrant to Purchase Common Stock, dated as of January 7,
1999 (filed as Exhibit 4.6 to the 1998 10-K).*
4.7 Form of Warrant to Purchase Common Stock.**
4.8 Convertible Note Purchase Agreement, 7 1/8% Convertible
Subordinated Note due March 15, 2005 and Registration Rights
Agreement all dated as of March 16, 1998 between the Company and
SBC Warburg Dillon Read Inc. (filed as Exhibit 10.12 to
Columbia's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998).*
5 Opinion of Weil, Gotshal & Manges LLP.**
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).**
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Goldstein Golub Kessler LLP.**
24 Power of Attorney. **
- --------------
* Incorporated by reference.
** Previously filed.
