As Filed with the Securities and Exchange Commission on May 18, 1999
Registration No. 333-75275
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
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: [ ]
NY2:\386144\03\89Y803!.DOC\37965.0012
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------ -------------- ------------------- --------------------- ---------------
Proposed
Amount Proposed Maximum Maximum Amount of
Title of Each Class of To Be Offering Price Aggregate Registration
Securities to be Registered Registered(1) Per Unit(2) Offering Price Fee
- ------------------------------------------------ -------------- ------------------- --------------------- ---------------
<S> <C> <C> <C> <C>
Common stock issuable upon conversion of 2,378,571 $2.8000 $6,660,000 $1,851.48
Series C Convertible Preferred Stock
- ------------------------------------------------ -------------- ------------------- --------------------- ---------------
Common stock issuable upon conversion of 7 662,034 $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 $16.0000 $320,000 $88.96
outstanding Warrants
- ------------------------------------------------ -------------- ------------------- --------------------- ---------------
Common stock issuable upon exercise of 20,000 $18.0000 $360,000 $100.08
outstanding Warrants
- ------------------------------------------------ -------------- ------------------- --------------------- ---------------
Common stock issuable upon exercise of 20,000 $20.0000 $400,000 $111.20
outstanding Warrants
- ------------------------------------------------ -------------- ------------------- --------------------- ---------------
Common stock issuable upon exercise of 120,000 $5.0000 $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 $3.5000 $815,850 $226.81
outstanding Warrants
- ------------------------------------------------ -------------- ------------------- --------------------- ---------------
Total 3,678,705 $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, 662,034 shares of common stock underlying convertible
subordinated notes owned by selling stockholders and 698,353 shares of
common stock underlying warrants owned by selling stockholders. In
accordance with Rule 429 under the Securities Act of 1933, the prospectus
included in this registration statement is a combined prospectus which also
relates to registration statement on Form S-1 (Registration No. 333-60123)
pursuant to which 60,253 of the 698,353 shares of common stock underlying
warrants owned by selling stockholders have previously been registered. The
registration fee with respect to these previously registered shares of
common stock has already been paid. The registration fee with respect to
these previously registered shares of common stock has already been paid.
This registration statement also covers 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.
<PAGE>
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 May 18, 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 May 17, 1999, the last reported sale price of the common stock
on the AMEX was $7.4375 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
<PAGE>
TABLE OF CONTENTS
PAGE
RISK FACTORS...........................................................2
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS......................8
WHERE YOU CAN FIND MORE INFORMATION....................................9
USE OF PROCEEDS.......................................................11
SELLING STOCKHOLDERS..................................................11
PLAN OF DISTRIBUTION..................................................14
LEGAL MATTERS.........................................................15
EXPERTS...............................................................15
<PAGE>
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.
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
technology, 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
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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 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.
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 technology, 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.
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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.
We are required by the FDA to put the new pharmaceutical products we
are developing through extensive and rigorous testing. 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. 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.
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
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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.
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
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
o warrants and options
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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;
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.
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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. 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
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
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.
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."
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."
10
<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.
(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.
11
<PAGE>
(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.
(11) Mr. Bologna serves as a 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 pursuant to an investment relations agreement with Columbia.
(14) Value Management & Research AG received beneficial ownership of the
shares pursuant to 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.
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.
3,738,958 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...............................$ 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.
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.
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.
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 18th day of May, 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, May 18, 1999
- -------------------------------------------- Director
Norman M. Meier (Principal Executive Officer)
* Chairman of the Board of Directors May 18, 1999
- --------------------------------------------
William J. Bologna
* Vice Chairman of the Board of Directors May 18, 1999
- --------------------------------------------
James J. Apostolakis
/s/David L. Weinberg Vice President-Finance and May 18, 1999
- -------------------------------------------- Administration, Chief Financial
David L. Weinberg Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
* Vice President-Pharmaceutical May 18, 1999
- -------------------------------------------- Development and Director
Dominique de Ziegler
* Director May 18, 1999
- --------------------------------------------
Jean Carvais
* Director May 18, 1999
- --------------------------------------------
Denis M. O'Donnell
* Director May 18, 1999
- --------------------------------------------
Selwyn P. Oskowitz
* Director May 18, 1999
- --------------------------------------------
Robert C. Strauss
*By: /s/David L. Weinberg
----------------------------
David L. Weinberg
(Attorney-in-fact)
</TABLE>
II-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.
II-6
EXHIBIT 4.7
[Form of Warrant]
THESE SECURITIES HAVE BEEN ISSUED PURSUANT TO EXEMPTIONS FOR NONPUBLIC OFFERINGS
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY, THESE SECURITIES MAY NOT
BE RESOLD OR OTHERWISE DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL FOR OR
SATISFACTORY TO THE ISSUER, REGISTRATION UNDER THE APPLICABLE FEDERAL OR STATE
SECURITIES LAWS IS NOT REQUIRED OR COMPLIANCE IS MADE WITH SUCH REGISTRATION
REQUIREMENTS. THIS LEGEND SHALL BE ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE
FOR THIS WARRANT.
Void after 5:00 p.m. New York Time, on _________________
Warrant to Purchase ___________ Shares of Common Stock.
WARRANT TO PURCHASE
_____________ SHARES OF
COMMON STOCK
WARRANT TO PURCHASE COMMON STOCK
OF
COLUMBIA LABORATORIES, INC.
This is to certify that, FOR VALUE RECEIVED, ________________
or registered assigns ("Holder"), is entitled to purchase, subject to the
provisions of this Warrant, from COLUMBIA LABORATORIES, INC., a Delaware
corporation ("Company"), __________ fully paid, validly issued and nonassessable
shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") exercisable at $______ per share. The number of shares of Common Stock
to be received upon the exercise of this Warrant and the price to be paid for
each share of Common Stock may be adjusted from time to time as hereinafter set
forth. The shares of Common Stock deliverable upon such exercise, and as
adjusted from time to time, are hereinafter sometimes referred to as "Warrant
Shares," and the exercise price of a share of Common Stock as adjusted from time
to time is hereinafter sometimes referred to as the "Exercise Price."
(a) EXERCISE OF WARRANT. This Warrant may be exercised as to a
minimum of 5,000 Warrant Shares at any time or from time to time until 5:00 P.M.
New York time on ___________, ____, provided, however, that if such day is a day
on which banking institutions in the State of New York are authorized by law to
close, then on the next succeeding day which shall not be such a day. This
Warrant may be exercised by presentation and surrender hereof to the Company at
its principal office, or at the office of its stock transfer agent, if any, with
the Purchase Form annexed hereto duly executed and accompanied by payment of the
Exercise Price for the number of Warrant Shares specified in such form. As soon
as practicable after each such exercise of the Warrants, but not later than
seven (7) business days from the date of such exercise, the Company shall issue
and deliver to the Holder a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder or the
Holder's designee. If this Warrant should be exercised in part only, the Company
<PAGE>
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the rights of the Holder thereof to purchase the balance
of the Warrant Shares purchasable thereunder. Upon receipt by the Company of
this Warrant at its office, or by the stock transfer agent of the Company at its
office, in proper form for exercise, together with the exercise price thereof in
cash or certified or bank check and the investment letter described below, the
Holder shall be deemed to be the holder of record of the shares of Common Stock
issuable upon such exercise, notwithstanding that the stock transfer books of
the Company shall then be closed or that certificates representing such shares
of Common Stock shall not then be physically delivered to the Holder. It shall
be a condition of the exercise of this Warrant that the Holder shall deliver to
the Company an investment letter in the form as customarily used by the Company
from time to time in connection with the exercise of non-registered options and
warrants which are issued by the Company. It is further understood that
certificates for the Warrant Shares to be issued upon exercise of this Warrant
shall contain a restrictive legend to the effect that such Warrant Shares are
restricted securities as such term is defined in Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act") and cannot be sold except in
compliance with the Act and the rules and regulations promulgated thereunder.
(b) RESERVATION OF SHARES. The Company shall at all times
reserve for issuance and/or delivery upon exercise of this Warrant such number
of shares of its Common Stock as shall be required for issuance and delivery
upon exercise of the Warrants. If the Common Stock is listed on any national
securities exchange, the Company shall also list such shares on such exchange
subject to notice of issuance.
(c) FRACTIONAL SHARES. No fractional shares or script
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the current market value of a share, determined as
follows:
(1) If the Common Stock is listed on a national
securities exchange or admitted to unlisted trading
privileges on such exchange or listed for trading on
the NASDAQ system, the current market value shall be
the last reported sale price of the Common Stock on
such exchange or system on the last business day
prior to the date of exercise of this Warrant or if
no such sale is made on such day, the average closing
bid and asked prices for such day on such exchange or
system; or
(2) If the Common Stock is not so listed or admitted
to unlisted trading privileges, the current market
value shall be the mean of the last reported bid and
asked prices reported by the National Quotation
Bureau, Inc., on the last business day prior to the
date of the exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted
to unlisted trading privileges and bid and asked
prices are not so reported, the current market value
shall be an amount, not less than the book value
thereof as at the end of the most recent fiscal year
of the Company ending prior to the date of the
exercise of the Warrant, determined in such
reasonable manner as may be prescribed by the Board
of Directors of the Company.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other Warrants of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
2
<PAGE>
Common Stock purchasable hereunder. Upon surrender of this Warrant to the
Company at its principal office or at the office of its stock transfer agent, if
any, with the Assignment Form annexed hereto duly executed and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant in the name of the assignee named in such instrument of assignment
and this Warrant shall promptly be canceled. This Warrant may be divided or
combined with other Warrants which carry the same rights upon presentation
hereof at the principal office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. The term "Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and in the case of loss, theft or destruction of reasonable
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Company except to the extent set
forth herein.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at
any time and the number and kind of securities purchasable upon the exercise of
the Warrants shall be subject to adjustment from time to time upon the happening
of certain events as follows:
(1) In case the Company shall (i) declare a dividend
or make a distribution on its outstanding shares of
Common Stock in shares of Common Stock, (ii)
subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares, or
(iii) combine or reclassify its outstanding shares of
Common Stock into a smaller number of shares, the
Exercise Price in effect at the time of the record
date for such dividend or distribution or of the
effective date of such subdivision, combination or
reclassification shall be proportionately adjusted as
of the effective date of such event by multiplying
such Exercise Price by a fraction, the denominator of
which shall be the number of shares of Common Stock
outstanding immediately following such event and the
numerator of which shall be the number of shares of
Common Stock outstanding immediately prior thereto.
For example, if the Company declares a 2 for 1 stock
distribution and the Exercise Price immediately prior
to such event was $1.00 per share, the adjusted
Exercise Price immediately after such event would be
$.50 per share. Such adjustment shall be made
successively whenever any event listed above shall
occur.
(2) Whenever the Exercise Price payable upon exercise
of each Warrant is adjusted pursuant to Subsection
(1) above, the number of Shares purchasable upon
exercise of this Warrant shall simultaneously be
adjusted by multiplying the number of Shares
initially issuable upon exercise of this Warrant by
the Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise
Price, as adjusted.
(3) No adjustment in the Exercise Price shall be
required unless such adjustment would require an
increase or decrease of at least twenty-five cents
3
<PAGE>
($.25) in such price; provided, however, that any
adjustments which by reason of this Subsection (3)
are not required to be made shall be carried forward
and taken into account in any subsequent adjustment
required to be made hereunder. All calculations under
this Section (f) shall be made to the nearest cent or
to the nearest one-hundredth of a Share, as the case
may be.
(4) Whenever the Exercise Price is adjusted, as
herein provided, the Company shall promptly cause a
notice setting forth the adjusted Exercise Price and
adjusted number of Shares issuable upon exercise of
each Warrant to be mailed to the Holders, at their
last addresses appearing in the Warrant Register, and
shall cause a certified copy thereof to be mailed to
its transfer agent, if any. The Company may retain a
firm of independent certified public accountants
selected by its Board of Directors (who may be the
regular accountants employed by the Company) to make
any computation required by this Section (f), and a
certificate signed by such firm shall be conclusive
evidence of the correctness of such adjustment.
(5) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the
Holder of this Warrant thereafter shall become
entitled to receive any shares of the Company, other
than Common Stock, thereafter the number of such
other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the
Common Stock contained in Subsections (1) to (3),
inclusive above.
(6) Irrespective of any adjustments in the Exercise
Price or the number or kind of shares purchasable
upon exercise of this Warrant, Warrants theretofore
or thereafter issued may continue to express the same
price and number and kind of shares as are stated in
the similar Warrants initially issuable pursuant to
this Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise
Price shall be adjusted as required by the provisions of the foregoing Section,
the Company shall forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office and with its stock transfer agent, if any, an
officer's certificate showing the adjusted Exercise Price determined as herein
provided, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional shares of Common
Stock, if any, and such other facts as shall be necessary to show the reason for
and the manner of computing such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder or
any holder of a Warrant executed and delivered pursuant to Section (a), and the
Company shall, forthwith after each such adjustment, mail a copy by certified
mail of such certificate to the Holder or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this
Warrant shall be outstanding, (i) if the Company shall pay any dividend or make
any distribution upon the Common Stock, or (ii) if the Company shall offer to
the holders of Common Stock for subscription or purchase by them any share of
any class or any other rights, or (iii) if any capital reorganization of the
Company, reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale, lease or transfer
of all or substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder, at least 15 days prior the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
4
<PAGE>
description of the proposed action and stating the date on which (x) a record is
to be taken for the purpose of such dividend, distribution or rights, or (y)
such reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any is
to be fixed, as of which the holders of Common Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In
case of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a merger with a subsidiary in which merger the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock of the
class issuable upon exercise of this Warrant) or in case of any sale, lease or
conveyance to another corporation of the property of the Company as an entirety,
the Company shall, as a condition precedent to such transaction, cause effective
provisions to be made so that the Holder shall have the right thereafter by
exercising this Warrant at any time prior to the expiration of the Warrant, to
purchase the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, capital reorganization and other
change, consolidation, merger, sale or conveyance. Any such provision shall
include provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The foregoing
provisions of this Section (i) shall similarly apply to successive
reclassifications, capital reorganizations and changes of shares of Common Stock
and to successive consolidations, mergers, sales or conveyances. In the event
that in connection with any such capital reorganization or reclassification,
consolidation, merger, sale or conveyance, additional shares of Common Stock
shall be issued in exchange, conversion, substitution or payment, in whole or in
part, for a security of the Company other than Common Stock, any such issue
shall be treated as an issue of Common Stock covered by the provisions of
Subsection (1) of Section (f) hereof.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933
(1) No later than one (1) year from the date hereof,
the Company shall, if permitted by applicable
regulation or any contractual provisions include in
the filing of any new registration statement (other
than a registration statement on Forms S-8, S-14,
S-15 or any other Form not generally available for
sale of securities to the public) ("Registration
Statement") under the Act covering securities of the
Company such information as may be required to permit
a public offering of the Warrant Shares. The Company
shall supply prospectuses and other documents in
order to facilitate the public sale or other
disposition of the Warrant Shares. The Company shall
file any necessary post-effective amendments to such
Registration Statement and use its best efforts to
maintain the effectiveness thereof for a period of 36
months from the date of issuance of the Warrant
Shares. The Company shall bear the entire cost and
expense of a registration of securities initiated by
it, under this Paragraph (1). The Holder shall,
however, bear the fees of his own counsel and any
transfer taxes or underwriting discounts or
commissions applicable to the Warrant Shares sold by
him. The Company may include other securities in any
such registration statement. The Company shall do any
and all other acts and things which may be necessary
or desirable to enable the Holder to consummate the
public sale or other disposition of the Warrant
Shares, and furnish indemnification in the manner as
set forth in Paragraph (2) (a) of this Section (j).
The Holder shall furnish information and
indemnification as set forth in Paragraph (2) (b) of
this Section (j).
5
<PAGE>
Notwithstanding the foregoing, in
the event that there is an underwritten offering of
the Company's securities offered pursuant to said
registration statement pursuant to the immediately
preceding paragraph j(1), the underwriter shall have
the right to refuse to permit any Warrant Shares, or
to limit the amount of Warrant Shares, to be sold by
the Holder to such underwriter(s) as such
underwriter(s) may determine in its discretion, and
the Holder shall refrain from selling such remainder
of its Warrant Shares covered by such registration
statement for the period of forty five (45) days
following the effective date.
(2) (a) Whenever pursuant to this Section (j) a
registration statement relating to the Warrant Shares
is filed under the Act, amended or supplemented, the
Company will indemnify and hold harmless each holder
of the securities covered by such registration
statement, amendment or supplement (such holder being
hereinafter called the "Distributing Holder"), and
each person, if any who controls (within the meaning
of the Act) the Distributing Holder, against any
losses, claims, damages or liabilities, joint or
several, to which the Distributing Holder or any such
controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or
alleged untrue statement of any material fact
contained in any such registration statement or any
preliminary prospectus or final prospectus
constituting a part thereof or any amendment or
supplement thereto, or arise out of or are based upon
the omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading; and will
reimburse the Distributing Holder and each such
controlling person for any legal or other expenses
reasonable incurred by the Distributing Holder and
each controlling person for any legal or other
expenses reasonable incurred by the Distributing
Holder or such controlling person or underwriter in
connection with investigating or defending any such
loss, claim damage, liability or action; provided,
however, that the Company will not be liable in any
such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or
omission or alleged omission made in said
registration statement, said preliminary prospectus,
said final prospectus or said amendment or supplement
in reliance upon and in conformity with written
information furnished by such Distributing Holder for
use in the preparation thereof.
(b) The Distributing Holder will indemnify
and hold harmless the Company, each of its directors,
each of its officers who have signed said
registration statement and such amendments and
supplements thereto, each person, if any, who
controls the Company (within the meaning of the Act)
against any losses, claims, damages or liabilities to
which the Company or any such director, officer or
controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages
or liabilities arise out of or are based upon any
untrue or alleged untrue statement of any material
fact contained in said registration statement, said
preliminary prospectus, said final prospectus, or
said amendment or supplement, or arise out of or are
based upon the omission or the alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein
no misleading, in each case to the extent, but only
to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was
6
<PAGE>
made in said registration statement, said preliminary
prospectus, said final prospectus or said amendment
or supplement in reliance upon and in conformity with
written information furnished by such distributing
Holder for use in the preparation thereof; and will
reimburse the Company or any such director, officer
or controlling person for any legal or other expenses
reasonably incurred by them in connection with
investigating or defending any such loss, claim,
damage, liability or action.
(c) Promptly after receipt by an indemnified
party under this Paragraph 2 of notice of the
commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made
against any indemnifying party, give the indemnifying
party notice of the commencement thereof; but the
omission so to notify the indemnifying party will not
relieve it from any liability which it may have to
any indemnified party otherwise than under this
Paragraph 2.
(d) In case any such action is brought
against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate
in, and, the extent that it may wish, jointly with
any other indemnifying party similarly notified to
assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after
notice from the indemnifying party to such
indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be
liable to such indemnified party under this Paragraph
2 for any legal or other expenses subsequently
incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of
investigation.
(e) The Company's agreements with respect to
Warrant Shares in this Section (j) shall continue in
effect regardless of the exercise or surrender of
this Warrant.
Dated: As of ____________________
COLUMBIA LABORATORIES, INC.
By:
------------------------------
David L. Weinberg
Chief Financial Officer
7
<PAGE>
PURCHASE FORM
Dated ,19
The undersigned hereby irrevocably elects to exercise the
within Warrant to the extent of purchasing __ shares of Common Stock of Columbia
Laboratories, Inc., and hereby makes payment of ___________ in payment of the
actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
-------------------------------------------------
(Please typewrite or print in block letters)
Address
----------------------------------------------
----------------------------------------------
Signature
8
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, _________ hereby sells, assigns and transfers unto
Name
-------------------------------------------------
(Please typewrite or print in block letters)
Address
----------------------------------------------
the right to purchase Common Stock of Columbia Laboratories, Inc., represented
by this Warrant to the extent of ___ shares as to which such right is
exercisable and does hereby irrevocably constitute and appoint _____________
Attorney, to transfer the same on the books of the Company with full power of
substitution in the premises.
Date , 19
- -------------------------------------
Signature
9
<PAGE>
PURCHASE FORM
Dated , 19
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ___ shares of Common Stock of Columbia
Laboratories, Inc., and hereby makes payment of ____________ in payment of the
actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
-------------------------------------------------
(Please typewrite or print in block letters)
Address
----------------------------------------------
----------------------------------------------
Signature
10
<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 18th day of May, 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, May 18, 1999
- -------------------------------------------- Director
Norman M. Meier (Principal Executive Officer)
* Chairman of the Board of Directors May 18, 1999
- --------------------------------------------
William J. Bologna
* Vice Chairman of the Board of Directors
- --------------------------------------------
James J. Apostolakis
Vice President-Finance and May 18, 1999
- -------------------------------------------- Administration, Chief Financial
David L. Weinberg Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
* Vice President-Pharmaceutical May 18, 1999
- -------------------------------------------- Development and Director
Dominique de Ziegler
* Director May 18, 1999
- --------------------------------------------
Jean Carvais
* Director May 18, 1999
- --------------------------------------------
Denis M. O'Donnell
* Director May 18, 1999
- --------------------------------------------
Selwyn P. Oskowitz
* Director May 18, 1999
- --------------------------------------------
Robert C. Strauss
*By:
-------------------------------------
David L. Weinberg
(Attorney-in-fact)
</TABLE>
11
