As Filed with the Securities and Exchange Commission on March 31, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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: [ ]
NY2:\386144\01\89Y801!.DOC\37965.0012
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Proposed Maximum Proposed
Amount Offering Price Maximum Amount of
Title of Each Class of To be Per Unit(2) Aggregate Registration
Securities to be Registered(1) Registered Offering Price Fee
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
<S> <C> <C> <C> <C>
Common stock issuable upon conversion of 2,378,571 $2.80 $6,660,000 $1,851.48
Series C Convertible Preferred Stock
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon conversion of 7 662,032 $15.1050 $10,000,000 $2,780.00
1/8% Convertible Subordinated Note Due March
15, 2005
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon exercise of 20,000 $16.00 $320,000 $88.96
outstanding Warrants
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon exercise of 20,000 $18.00 $360,000 $100.08
outstanding Warrants
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon exercise of 20,000 $20.00 $400,000 $111.20
outstanding Warrants
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon exercise of 120,000 $5.00 $600,000 $166.80
outstanding Warrants
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon exercise of 225,000 $4.8125 $1,082,813 $301.03
outstanding Warrants
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon exercise of 233,100 $3.50 $815,850 $226.81
outstanding Warrants
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
Total 3,678,703 $5,626.36
- ------------------------------------------------ ------------- ------------------ ------------------------ --------------
</TABLE>
(1) This registration statement is being used to register 2,378,571 shares of
common stock underlying convertible preferred stock owned by selling
stockholders, 662,032 shares of common stock underlying convertible
subordinated notes owned by selling stockholders and 638,100 shares of
common stock underlying warrants owned by selling stockholders, plus an
indeterminate number of shares of common stock which may be issued by
reason of the antidilution provisions of the preferred stock, subordinated
notes and warrants.
(2) Calculated pursuant to Rule 457(g).
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 CONTAINED IN THIS 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 AND
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 March 31, 1999
PROSPECTUS
COLUMBIA LABORATORIES, INC.
3,678,703 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 662,032 shares of common stock underlying a convertible
subordinated note owned by a selling stockholder; and
o 638,100 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.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 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
PAGE
THE COMPANY......................................................1
RISK FACTORS.....................................................2
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS................8
WHERE YOU CAN FIND MORE INFORMATION..............................9
USE OF PROCEEDS.................................................10
SELLING STOCKHOLDERS............................................11
PLAN OF DISTRIBUTION............................................13
LEGAL MATTERS...................................................14
EXPERTS.........................................................14
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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
infertility, dysmenorrhea, endometriosis, hormonal deficiencies and that prevent
sexually transmitted diseases. Our research in endocrinology has also led to the
development of a product to treat "andropause" in men. Our products primarily
utilize our patented Bioadhesive Delivery System.
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. We
received approximately $2.5 million in purchase orders of our principal product,
Crinone 8%, from a major customer in 1998, down from $11.2 million in 1997. If
we are unable to generate enough funds from 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.
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.
STEPS TAKEN BY US TO PROTECT OUR PROPRIETARY RIGHTS MIGHT NOT BE ADEQUATE.
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.
Even though we have patents covering the 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"
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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 DEVELOPMENT OF PRODUCTS USING THE BIOADHESIVE DELIVERY SYSTEM IS UNCERTAIN.
Several potential products using the Bioadhesive Delivery System remain
in the early stages of development and remain subject to the risks inherent in
the development of products based on innovative technologies, including:
o unanticipated development problems;
o insufficiency of funds to undertake development or substantial
change in the development of a specific product; and
o pre-marketing regulatory approval.
We cannot assure you that additional products using the Bioadhesive
Delivery System can be successfully developed, can be developed on a timely
basis or will prove to be more effective than existing products.
WE RELY ON OTHER COMPANIES TO PROMOTE OUR PRODUCTS IN FOREIGN COUNTRIES.
We have entered into agreements with other companies for the
distribution and marketing of our bioadhesive products in 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.
We may not be able to satisfy all of our obligations under these
agreements. 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.
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 the 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.
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GOVERNMENT REGULATION MAY DELAY MARKETING OF THE PRODUCTS.
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.
New pharmaceutical products that we develop are required to undergo
extensive and rigorous testing by the FDA. The FDA has the power to seize
adulterated or misbranded products and unapproved new drugs, to require us to
recall them from the market, to enjoin further manufacture or sale and to
publicize certain facts concerning a product. The manufacturing of our products
which are either made or sold in the United States is subject to current Good
Manufacturing Practices prescribed by the FDA. Additionally, the labeling of
over-the-counter drugs in the United States and the advertising relating to such
products are subject to the review of the FTC. As a result of FDA and FTC
regulations, obtaining pre-market regulatory approval requires extensive time
and money. Delays in obtaining approval from these regulatory agencies can have
material adverse effects on our business and prospects.
As in the United States, a number of foreign countries require
pre-marketing approval by health regulatory authorities. 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.
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.
Lake Pharmaceuticals, Inc. has filed an action against us in the United
States District Court, Northern District of Illinois. Should Lake prevail in its
claims against us, this could have a material adverse effect on our business if
our insurance coverage is insufficient to cover the claim. Lake claims it
suffered damages 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 to be sold under the monograph. 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.
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.
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
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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.
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.
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.
THE MARKET PRICE OF OUR COMMON STOCK CAN FLUCTUATE GREATLY.
The stock market has at various times experienced extreme price and
volume fluctuations that have particularly affected the market price for many
emerging growth companies, such as our own, that often have been unrelated to
the operating performance or prospects of these companies. These fluctuations,
as well as general economic, political and market conditions, such as recessions
or international currency fluctuations, may adversely affect the market price of
the common stock.
SALES OF LARGE AMOUNTS OF COMMON STOCK MAY ADVERSELY AFFECT 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
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.
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ANTI-TAKEOVER PROVISIONS COULD IMPEDE OR DISCOURAGE A THIRD-PARTY ACQUISITION OF
OUR COMPANY.
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, under certain circumstances, reduce the market value
of our common stock.
YEAR 2000 TECHNOLOGY PROBLEMS MAY DISRUPT OUR BUSINESS.
In operating a 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 are in the
process of implementing a year 2000 readiness program.
The first component of the year 2000 readiness program was to identify
all of our internal information technology (IT) and non-IT systems business
systems that are susceptible to system failures or processing errors as a result
of year 2000 problems. This step has been completed and all systems have been
upgraded to be year 2000 complaint, principally through the replacement or
modification of computer software of affected systems. The cost incurred for
this process approximated $5,000.
The second component of the year 2000 readiness program is to identify
significant service providers, vendors and customers that we believe are
critical to our business operations after December 31, 1999. We are taking steps
to determine whether they are or expect to be year 2000 compliant by the end of
this year. The possible consequences of not being fully year 2000 compliant
include:
o delays in delivery of products;
o delays in the receipt of supplies;
o invoice and collections errors; and
o inventory obsolescence.
We cannot assure you that systems of third parties on which we rely
will be year 2000 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.
We believe that we have developed an effective program to address the
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. The ability of third parties with whom we transact business to
adequately address their year 2000 issues is outside of our control. 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. We will continue to assess the risks presented by the
year 2000 problem and will develop contingency plans if, and when, such plans
become necessary.
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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. 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" all the negative thereof. 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 to 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 filing with the SEC. All forward-looking
statements should be considered in light of these risks and uncertainties. We
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; and
o Columbia's Current Report on Form 8-K filed with the SEC on
January 7, 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.
9
<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."
10
<PAGE>
SELLING STOCKHOLDERS
The 3,678,703 shares of common stock which may be offered and sold
pursuant to this prosepctus 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.
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."
11
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Beneficial Number of Shares Beneficial
Ownership at March Covered by this Ownership After
31, 1999 Prospectus Offering
Selling Stockholders Number of Shares Number of Shares Percent of
Class(1)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Achieve Fund (2) 98,036 98,036 0 *
- ---------------------------------------------------------------------------------------------------------------
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 (3), (4) 10,675,788 43,920 0 3.16%
- ---------------------------------------------------------------------------------------------------------------
Delaware Charter Guarantee & Trust 19,607 19,607 0 *
FBO Robert W. Ledoux Roth IRA
- ---------------------------------------------------------------------------------------------------------------
Derwent Limited 392,143 392,143 0 *
- ---------------------------------------------------------------------------------------------------------------
George Voelker 39,214 39,214 0 *
- ---------------------------------------------------------------------------------------------------------------
James J. Apostolakis (3), (5) 1,241,936 198,036 1,043,900 3.23%
- ---------------------------------------------------------------------------------------------------------------
James R. Berdell - Roth IRA 39,214 39,214 0 *
- ---------------------------------------------------------------------------------------------------------------
John Gildea 49,414 39,214 10,200 *
- ---------------------------------------------------------------------------------------------------------------
Jupiter Partners 58,821 58,821 0 *
- ---------------------------------------------------------------------------------------------------------------
Knott Partners, L.P. (3) 885,866 465,866 0 1.30%
- ---------------------------------------------------------------------------------------------------------------
Morrison Family Trust (6) 137,250 137,250 0 *
- ---------------------------------------------------------------------------------------------------------------
Norman M. Meier (3), (7) 1,982,850 137,250 1,845,600 5.70%
- ---------------------------------------------------------------------------------------------------------------
Shephard Lane (8) 163,000 25,000 138,000 *
- ---------------------------------------------------------------------------------------------------------------
Terry Van Der Tuuk 49,214 39,214 10,000 *
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
* Less than 1.0%
-------------------------
(1) Based upon 35,540,355 shares of common stock. This includes
28,684,687 shares of common stock outstanding as of March 19, 1999
plus the 3,678,703 shares of common stock registered pursuant to
this registration statement.
(2) Mr. Richard Morrison, the beneficiary of the Morrison Family
Trust, is the general partner of the Achieve Fund.
(3) Columbia, Messrs. 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, to, among other things, express
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.
(4) Mr. Knott is the general partner of Knott Partners, L.P. Mr. Knott
beneficially owns 600 shares of common stock held in the IRA
account of his wife; 96,100 shares of common stock held in a
managed account where he shares the power to vote and dispose of
the shares, and 448,000 shares of common stock held in other
managed accounts where he holds the sole power to vote and dispose
of the shares.
(5) 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.
(6) Mr. Richard Morrison, the beneficiary of the Morrison Family
Trust, is the general partner of the Achieve Fund.
(7) Mr. Meier has been the President and Chief Executive Officer of
Columbia since its inception.
(8) Mr. Shephard has acted as general legal counsel to Columbia for
the last three years.
12
<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 such 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 such broker or dealer may be deemed to
be underwriting compensation under the Securities Act. In addition, any such
broker or dealer may be required to deliver a copy of this prospectus to any
person who purchases any of the shares from or through such broker or dealer.
Under the various registration rights agreements and warrant
agreements, pursuant 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 shall reasonably request to enable such 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 such indemnification is unavailable or insufficient,
they have agreed to contribute to the amount paid or payable in connection with
these liabilities.
13
<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.
14
<PAGE>
COLUMBIA LABORATORIES, INC.
3,678,703 SHARES
COMMON STOCK
PROSPECTUS
, 1999
15
<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.........................$8,000.00
Legal fees and expenses..............................$________
Miscellaneous........................................$________
Total................................................$________
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.
II-1
<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 .(filed as Exhibit 4.7 to the
1998 10-K).*
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 (included as part of the signature page of this
Registration Statement).
- --------------
* Incorporated by reference.
II-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,
II-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.
II-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 30th day of March, 1999.
COLUMBIA LABORATORIES, INC.
By: /s/ David L. Weinberg
--------------------------------
David L. Weinberg
Chief Financial Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David L. Weinberg, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including, without limitation,
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
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.
SIGNATURE TITLE DATE
/s/ Norman M. Meier President, Chief Executive March 30, 1999
- -------------------------- Officer, Director
Norman M. Meier (Principal Executive Officer)
/s/ William J. Bologna Chairman of the Board of March 30, 1999
- -------------------------- Directors
William J. Bologna
/s/ James J. Apostolakis Vice Chairman of the Board March 30, 1999
- -------------------------- of Directors
James J. Apostolakis
/s/ David L. Weinberg Vice President-Finance and March 30, 1999
- -------------------------- Administration, Chief Financial
David L. Weinberg Officer, Treasurer and Secretary
(Principal Financial and
Accounting Officer)
/s/ Dominique de Ziegler Vice President-Pharmaceutical March 30, 1999
- -------------------------- Development and Director
Dominique de Ziegler
II-5
<PAGE>
/s/ Jean Carvais Director March 30, 1999
- --------------------------
Jean Carvais
/s/ Denis M. O'Donnell Director March 30, 1999
- --------------------------
Denis M. O'Donnell
/s/ Selwyn P. Oskowitz Director March 30, 1999
- --------------------------
Selwyn P. Oskowitz
/s/ Robert C. Strauss Director March 30, 1999
- --------------------------
Robert C. Strauss
II-6
<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 .(filed as Exhibit 4.7 to the
1998 10-K).*
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 (included as part of the signature page of this
Registration Statement).
- --------------
* Incorporated by reference.
II-7
EXHIBIT 5
WEIL, GOTSHAL & MANGES LLP
A LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
Board of Directors
Columbia Laboratories, Inc.
2875 Northeast 191 Street, Suite 400
Aventura, Florida 33180
Ladies and Gentlemen:
We have acted as counsel to Columbia Laboratories, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of the Company's Registration Statement
on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended, relating to the sale, from time to time, by certain stockholders of the
Company identified in the prospectus (the "Prospectus") which forms a part of
the Registration Statement, in the manner described in the Prospectus, of up to
an aggregate of 3,678,703 shares of the Company's common stock, par value $.01
per share (the "Common Stock"). The shares of Common Stock are issuable upon (i)
exercise of certain outstanding warrants issued by the Company (the "Warrants"),
(ii) conversion of the Company's outstanding 7 1/8% Convertible Subordinated
Note (the "Convertible Note") and (iii) conversion of the Company's outstanding
Series C Convertible Preferred Stock ("Series C Convertible Stock").
In so acting, we have examined originals or copies (certified or
otherwise identified to our satisfaction) of the Registration Statement, the
Prospectus, the Warrants, the Convertible Note Purchase Agreement, dated as of
March 16, 1998, the Convertible Note, the Certificate of Designations for the
Series C Convertible Stock, the Securities Purchase Agreements, dated as of
January 7, 1999, January 19, 1999 and February 1, 1999, pursuant to which the
Series C Convertible Stock was sold (the "Securities Purchase Agreements"), and
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 legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to these opinions that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company and upon the representations and warranties of
the Company contained in the Convertible Note Purchase Agreement and the
Securities Purchase Agreement.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the shares of Common Stock to be sold by the
Selling Stockholders in the manner described in the Prospectus under the
captions "Selling Stockholders" and "Plan of Distribution" have been duly
authorized by all requisite corporate action and, when issued and paid for in
accordance with the terms of the instrument or agreement governing their
issuance or sale, will be validly issued, fully paid and non-assessable.
The opinions expressed herein are limited to the corporate laws of the
State of Delaware and the federal laws of the United States, and we express no
opinion as to the effect on the matters covered by this letter of the laws of
any other jurisdiction.
We hereby consent to the use of this letter as an exhibit to the
Registration Statement and to any and all references to our firm in the
Prospectus which is a part of the Registration Statement.
/s/ WEIL, GOTSHAL & MANGES LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Shareholders
Columbia Laboratories, Inc.:
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
February 13, 1998 covering the December 31, 1997 financial statements and
schedules included in Columbia Laboratories, Inc.'s Form 10-K for the year ended
December 31, 1998 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Miami, Florida
March 30, 1999
EXHIBIT 23.3
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors
Columbia Laboratories, Inc.:
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 of our report dated
February 26, 1999 related to the consolidated financial statements of Columbia
Laboratories, Inc. as of December 31, 1998 and for the year then ended which
report appears in the December 31, 1998 annual report on Form 10-K of Columbia
Laboratories, Inc. We also consent to the reference to our Firm under the
captions "Experts" in such Prospectus.
/s/ GOLDSTEIN GOLUB KESSLER, LLP
New York, New York
March 30, 1999
