As Filed with the Securities and Exchange Commission on May 26, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
COLUMBIA LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 59-2758596
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2875 NORTHEAST 191 STREET, SUITE 400
AVENTURA, FLORIDA 33180
(305) 933-6089
(Address, including ZIP code, and telephone number, including area
code, of registrant's principal executive offices)
DAVID L. WEINBERG
CHIEF FINANCIAL OFFICER
COLUMBIA LABORATORIES, INC.
2875 NORTHEAST 191 STREET, SUITE 400
AVENTURA, FLORIDA 33180
(305) 933-6089
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
Copy to:
STEPHEN M. BESEN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check this following
box and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
NY2:\900191\08\37965.0012
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<TABLE>
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CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Proposed Maximum Proposed
Amount Offering Price Maximum Amount of
Title of Each Class of To be Per Unit Aggregate Registration
Securities to be Registered(1) Registered Offering Price Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, $.01 par value 53,933 $9.4688(2) $510,681 $134.82
- -------------------------------------------------------------------------------------------------------------------------
Common stock issuable upon exercise of 75,000 $7.5000(3) $562,500 $148.50
outstanding Warrants
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Common stock issuable upon exercise of 25,000 $7.0625(3) $176,563 $46.61
outstanding Warrants
- -------------------------------------------------------------------------------------------------------------------------
Total 153,933 $1,249,744 $329.93
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(1) This registration statement is being used to register 53,933 shares of
common stock owned by selling stockholders and 100,000 shares of common
stock underlying warrants owned by selling stockholders, plus an
indeterminate number of shares of common stock which may be issued by
reason of the antidilution provisions of the warrants.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933 on the basis of the average
of the high and low sales prices of the Registrant's common stock on the
American Stock Exchange on May 25, 2000.
(3) Calculated pursuant to Rule 457(g) under the Securities Act of 1933 on the
basis of the price at which the warrants may be exercised.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THE SELLING STOCKHOLDERS IDENTIFIED IN THIS PROSPECTUS MAY NOT SELL THESE
SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL NOR IS
IT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
Subject to Completion. Dated May 26, 2000.
PROSPECTUS
COLUMBIA LABORATORIES, INC.
153,933 Shares of Common Stock
The stockholders identified in this prospectus are offering:
o 53,933 shares of common stock owned by selling stockholders; and
o 100,000 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 25, 2000, the last reported sale price of the common stock on
the AMEX was $9.1875 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 6 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 , 2000
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TABLE OF CONTENTS
COLUMBIA LABORATORIES, INC....................................................3
RISK FACTORS..................................................................6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS............................12
WHERE YOU CAN FIND MORE INFORMATION..........................................14
USE OF PROCEEDS..............................................................16
SELLING STOCKHOLDERS.........................................................16
PLAN OF DISTRIBUTION.........................................................18
LEGAL MATTERS................................................................19
EXPERTS......................................................................19
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COLUMBIA LABORATORIES, INC.
Because this is a summary, it does not contain all the information
about Columbia that may be important to you. You should read the more detailed
information and the financial statements and related notes which are
incorporated by reference in this Prospectus.
We are currently engaged in the development and sale of pharmaceutical
products. Our objective is to develop unique pharmaceutical products that treat
female specific diseases and conditions including:
o infertility;
o dysmenorrhea, painful uterine cramping associated with menses;
o endometriosis, the growth of endometrial tissue outside the
uterus; and
o hormonal deficiencies.
We are also seeking to develop unique pharmaceutical products that treat
sexually transmitted diseases.
Our products primarily utilize our patented Bioadhesive Delivery
System. The Bioadhesive Delivery System is based upon the principal of
bioadhesion, a process by which the polymer, a large insoluble substance,
adheres to skin and other body surfaces and to mucin, a naturally occurring
secretion of the mucous membranes. The polymer remains attached to the surfaces
or the mucin and is discharged upon normal cell turnover. Cell turnover is a
normal process which, depending upon the area of the body, occurs every 12 to 72
hours. The extended period of attachment permits the Bioadhesive Delivery System
to be utilized in products when extended duration of effectiveness is desirable
or required.
Our first prescription drug utilizing the Bioadhesive Delivery System,
Crinone(R), is a sustained release, vaginally delivered, natural progesterone
product. Progesterone is a hormone manufactured by a woman's ovary in the second
half of the menstrual cycle. By delivering progesterone directly to the uterus,
a process we call "First Uterine Pass Effect"(C), it maximizes the therapeutic
benefit. It also avoids side effects seen with orally-delivered synthetic
progesterone-like drugs. In May 1997, we received U.S. marketing approval for
Crinone from the FDA for use as progesterone supplementation or replacement as
part of a treatment program for infertile women. In July 1997, we received U.S.
marketing approval for Crinone from the FDA for the treatment of secondary
amenorrhea, which is the loss of the menstrual period. Outside the U.S., Crinone
has been approved for marketing for one or more medical indications in a variety
of European and Latin American countries.
In May 1995, we entered into a worldwide, except for South Africa,
license and supply agreement for Crinone with American Home Products
Corporation. As part of the agreement, the Wyeth-Ayerst Laboratories division of
AHP marketed Crinone. On July 2, 1999, AHP assigned the license and supply
agreement to Ares-Serono, a Swiss pharmaceutical company. Serono paid $68
million to AHP for the rights to Crinone and assumed AHP's financial obligations
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to us. Under the terms of the license and supply agreement, we have earned $17
million in milestone payments as of December 31, 1999 and will continue to
receive additional milestone payments.
In addition, we have produced through contract manufacturers the
following over-the-counter products for sales by us or our licensees:
o Advantage-S(R), our female contraceptive gel;
o Replens(R), which replenishes vaginal moisture on a sustained
basis and relieves the discomfort associated with vaginal
dryness; and
o MipHil(TM), which reduces vaginal pH for the elimination of
symptoms of bacterial vaginosis.
On May 5, 2000, we sold various tangible and intangible assets related
to the U.S. rights for Replens to Lil' Drug Store Products, Inc. for a total of
$4.5 million cash. Additionally, Lil' Drug Store agreed to buy up to $500,000 of
Replens inventory from us and to pay us future royalties of up to $2 million
equal to 10% of future U.S. sales of Replens.
Additionally, on May 5, 2000, we licensed our Legatrin PM, Legatrin
GCM, Vaporizer in a Bottle and Diasorb brands to Lil' Drug Store. Under the
terms of these agreements, we will receive license fees equal to 20% of the
licensee's net sales of these brands. These agreements each have five-year terms
with provisions for renewal and contain options that allow the licensee to
acquire the brands from us.
We intend to concentrate on developing our prescription products,
including Chronodyne(R), a product intended to relax the uterus and prevent
abnormal contractions. This product may be useful in the treatment of disorders
such as dysmenorrhea and endometriosis. We expect Chronodyne(R) to enter Phase
III clinical trials later this year.
Our research in endocrinology has also led to the development of a
physiologic testosterone bioadhesive buccal tablet, a product to treat
"andropause" in men. Like the failure of the ovaries in menopausal women to
produce estrogen, andropause occurs upon the failure of the testes to produce
sufficient testosterone in men. This, in turn, results in increasing levels of
Follicle Stimulating Hormone, a natural hormone in the male pituitary gland
which stimulates the testicles to produce testosterone. This may have the same
impact as menopause in women, including:
o increased risk of cardiovascular disease;
o Alzheimer's disease; and
o osteoporosis.
Our physiologic testosterone bioadhesive buccal tablet may play an important
role in the treatment of angina, the pain associated with the clogging of the
coronary arteries, and in the secondary prevention of a heart attack. We expect
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to enter Phase III clinical trials for our physiologic testosterone buccal
tablet within the next several months and expect to complete Phase III trials by
year-end.
We have focused on women's health care because of the significant
number of women's health and hygiene needs which have not been met by available
products and because we have found vaginal delivery of pharmaceutical products
to be particularly effective. We intend to continue to develop products that
improve the delivery of previously approved drugs.
Our principal executive offices are located at:
2875 Northeast 191st Street, Suite 400
Aventura, Florida 33180
Tel: (305) 933-6089
Our subsidiaries, all of which are wholly-owned, are Columbia
Laboratories (Bermuda) Ltd., Columbia Laboratories (France) SA, Columbia
Laboratories (UK) Limited and Columbia Research Laboratories, Inc.
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RISK FACTORS
You should carefully consider the following risk factors as well as the
other information contained and incorporated by reference in this prospectus
before making an investment in the common stock. Any one or a combination of
these risk factors may have a material adverse effect on Columbia.
OUR HISTORY OF LOSSES MAY RESULT IN A SHORTAGE OF WORKING CAPITAL FOR OUR
OPERATIONS.
We cannot assure you that funds generated from operations will be
sufficient to achieve our research and development plans. For the fiscal year
ended December 31, 1999, we had a net loss of $2,210,208 which was primarily the
result of a lack of sales and costly research and development activities. 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 that market products addressing similar needs. In addition,
numerous companies are developing, or in the future may develop, enhanced
delivery systems and products that 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, 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(R) marketed by the Upjohn Company and Prempro(R)
and Premphase(R) marketed by American Home Products. We also believe that
Advantage-S, Legatrin PM, Legatrin GCM Formula and Diasorb compete against
numerous products in their respective categories and that our product Vaporizer
in a Bottle competes against Vicks Vaporsteam(R), 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.
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Even though we have patents covering our Bioadhesive Delivery System,
other companies may independently develop or obtain patent or similar rights to
equivalent or superior technologies or processes. Additionally, although we
believe that our patented technology has been independently developed and does
not infringe on the patents of others, we cannot assure you that our technology
does not and will not infringe on the patents of others. In the event of
infringement, we may be required to modify our technology or products, obtain
licenses or pay license fees. We may not be able to do so in a timely manner or
upon acceptable terms and conditions. This may have a material adverse effect on
our operations.
We have filed the following as trademarks in countries throughout the
world:
o "Advantage-S"
o "Advantage-24"
o "Advantage-LA"
o "Replens"
o "Crinone"
o "Chronodyne"
These trademarks, however, may not afford us adequate protection or we
may not have the financial resources to enforce our rights under these
trademarks.
THE FAILURE OF OTHER COMPANIES TO SUCCESSFULLY PROMOTE OUR PRODUCTS COULD
ADVERSELY EFFECT OUR CASH FLOW.
We have entered into agreements with other companies for the
distribution and marketing of our Bioadhesive Delivery System and
over-the-counter 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.
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
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will receive any up front payments or ongoing royalties. We also cannot assure
you that our partners will aggressively or successfully market these products.
OUR DEPENDENCE ON A PRINCIPAL SUPPLIER MAY LIMIT OUR ABILITY TO SECURE NECESSARY
MATERIALS.
Medical grade, cross-linked polycarbophil, the polymer used in our
products using our Bioadhesive Delivery System, is currently available from only
one supplier, B.F. Goodrich Company. We believe that Goodrich will supply as
much of the material as we require because our products rank among the highest
value-added uses of the polymer. In the event that Goodrich cannot or will not
supply enough of the product to satisfy our needs, we will be required to seek
alternative sources of polycarbophil. We cannot assure you that an alternative
source of polycarbophil can be obtained or that it can be obtained on
satisfactory terms.
WE DEPEND UPON THIRD PARTY MANUFACTURERS WHO MAY NOT BE ABLE TO MEET OUR FUTURE
NEEDS.
We rely on third parties to manufacture our products. These
manufacturers may not be able to satisfy our needs in the future. This could
have an adverse effect on our profit margins and our ability to deliver our
products on a timely and competitive basis.
GOVERNMENT REGULATION MAY DELAY MARKETING OF THE PRODUCTS THAT 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.
Delays in obtaining approval from the regulatory agencies can have material
adverse effects on our business and prospects.
As in the United States, almost all foreign countries require
pre-marketing approval by health regulatory authorities. 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.
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OUR CURRENT INSURANCE COVERAGE COULD BE INSUFFICIENT. PRODUCT LIABILITY CLAIM
AWARDS IN EXCESS OF OUR INSURANCE COVERAGE COULD HAVE A MATERIAL ADVERSE EFFECT
ON OUR BUSINESS.
Due to the nature of our business, we may be exposed to product
liability claims by consumers. Although we presently maintain product liability
insurance coverage in the amount of $15 million, this may not be sufficient to
cover all possible liabilities. An award against us in an amount greater than
our insurance coverage could have a material adverse effect on our operations.
Some food and drug retailers require us to have a minimum level of
product liability insurance coverage before they will purchase or accept our
products for retail distribution. Our failure to satisfy insurance requirements
could limit our ability to achieve broad retail distribution of our products.
This could have a material adverse effect upon our business and financial
condition.
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 William
J. Bologna, Chairman of the Board of Directors and our Chief Executive Officer.
We have entered into an employment agreement with Mr. Bologna, which expires on
January 1, 2002. 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, 1999, we had net operating loss carryforwards of
approximately $45 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.
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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 30,434,926
shares of common stock outstanding, of which 27,934,926 shares are freely
tradable. Approximately 2,500,000 shares of our common stock are restricted
securities, but may be sold pursuant to Rule 144. We also have the following
securities outstanding:
o Series A Convertible Preferred Stock
o Series B Convertible Preferred Stock
o Series C Convertible Preferred Stock
o a subordinated convertible note
o warrants and options
If all of these securities are exercised or converted, an additional 7,310,233
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 our 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
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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.
Since January 1, 2000, we have not had any year 2000-related problems
associated with our internal systems or software, and we are not aware of any
year 2000-related problems associated with the systems or software of our
vendors, distributors or suppliers. Although we expect most material year 2000
compliance problems to have arisen or occurred on or after January 1, 2000, we
cannot assure you, however, that the year 2000 problem will not adversely affect
our business, financial condition, results of operations or cash flows. It is
possible that future year 2000-related problems will arise after January 1,
2000.
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 1999, 13.4% of our revenues were attributable to sales
of our products 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 businesses 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 in the European locations in which we operate as we continue to expand our
services.
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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," "plans, " "may," "will,"
"should," "anticipates" and other similar expressions. 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 and regulations, 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 timely completion of studies and approvals by the FDA and
other regulatory agencies.
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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
o 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549
o Seven World Trade Center, 13th Floor, New York, New York 10048
o Northwest Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661
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 that 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 and any future
filings under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (File No.
1-12145) made prior to the termination of this offering are incorporated by
reference:
o our Annual Report on Form 10-K for our fiscal year ended
December 31, 1999;
o our Quarterly Report on Form 10-Q for our quarter ended March
31, 2000; and
o the description of our common stock contained in our
registration statement on Form 8-A, filed on February 21,
1989.
14
<PAGE>
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 DOCUMENT.
15
<PAGE>
USE OF PROCEEDS
The shares of common stock being offered are solely for the accounts of
the selling stockholders pursuant to various agreements that we have entered
into with them. We will not receive any proceeds from the sale of the common
stock. See "Selling Stockholders."
SELLING STOCKHOLDERS
In connection with the issuance of these securities to the selling
stockholders, we entered into various agreements that require us to file a
registration statement covering the common stock and the common stock issuable
upon exercise of the warrants. This prospectus is a part of the registration
statement we filed with the SEC covering those shares of 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 exercise of the warrants. We received this information from
the selling stockholders. Except as disclosed in this prospectus, none of the
selling stockholders has, or within the past three years has had, any position,
office or other material relationship with Columbia or any of its predecessors
or affiliates. Because the selling stockholders may offer all or some portion of
the common stock pursuant to this prospectus, no estimate can be given as to the
number of shares of common stock that will be held by the selling stockholders
upon termination of any sales of the common stock. In addition, the selling
stockholders identified below may have sold, transferred or otherwise disposed
of all or a portion of their securities since the date on which they provided
the information regarding their securities in transactions exempt from the
registration requirements of the Securities Act.
The shares of common stock are being registered to permit public
secondary trading of the shares and the selling stockholders may offer the
shares for sale from time to time. See "Plan of Distribution."
16
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Number of
Beneficial Shares Covered
Ownership at by this Beneficial Ownership
May 25 , 2000 Prospectus After Offering
------------- ---------- --------------
Selling Stockholders Number of Shares Number of Shares Percent of Class
(1)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lake Consumer Products, Inc. 53,933 53,933 0 *
- -------------------------------------------------------------------------------------------------------------------
James J. Apostolakis (2) 1,317,078 75,000 1,242,078 4.06%
- -------------------------------------------------------------------------------------------------------------------
Ryan, Beck & Co., Inc. 9,786 9,786 0 *
- -------------------------------------------------------------------------------------------------------------------
Randy F. Rock 5,982 5,982 0 *
- -------------------------------------------------------------------------------------------------------------------
Michael J. Kollender 5,982 5,982 0 *
- -------------------------------------------------------------------------------------------------------------------
Sharon diStefano 3,250 3,250 0 *
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
* Less than 1.0%
- -------------------------
(1) Based upon 30,588,859 shares of common stock. This includes 30,434,926
shares of common stock outstanding as of May 25, 2000, plus the 153,933
shares of common stock registered pursuant to this registration statement.
(2) Since January 1999, Mr. Apostolakis has served as a director and
Vice-Chairman of the Board of Directors and as President since January
2000. Of the 1,317,078 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.
17
<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares of common stock covered by
this prospectus from time to time at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The selling stockholders may offer their shares for sale in one or more
of the following transactions:
o on the AMEX;
o through the facilities of any national securities exchange or
U.S. automated inter-dealer quotation system of a registered
national securities association on which any of the shares of
common stock are then listed, admitted to unlisted trading
privileges or included for quotation;
o in privately negotiated transactions; or
o in a combination of such methods of sale.
The selling stockholders may sell their shares directly, or indirectly
through underwriters, broker-dealers or agents acting on their behalf, and in
connection with such sales, the broker-dealers or agents may receive
compensation in the form of commissions, concessions, allowances or discounts
from the selling stockholders and/or the purchasers of the shares for whom they
may act as agent or to whom they sell the shares as principal or both, which
commissions, concessions, allowances or discounts might be in excess of
customary amounts thereof. Sales will be made only through broker-dealers
registered as such in a subject jurisdiction or in transactions exempt from such
registration. We have not been advised of any selling arrangement at the date of
this prospectus between any selling stockholder and any broker-dealer or agent.
We will not receive any of the proceeds from the sale of the shares by the
selling stockholders.
In connection with the distribution of the shares, certain of the
selling stockholders may enter into hedging transactions with broker-dealers. In
connection with these transactions, broker-dealers may engage in short sales of
the shares in the course of hedging the positions they assume with the selling
stockholders. The selling stockholders may also sell the shares short and
redeliver the shares to close out the short positions. The selling stockholders
may also enter into option or other transactions with broker-dealers that
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 broker or dealer may be deemed to be
underwriting compensation under the Securities Act. In addition, the broker or
18
<PAGE>
dealer may be required to deliver a copy of this prospectus to any person who
purchases any of the shares from or through the broker or dealer.
Under the various agreements according to which we filed the
registration statement, we agreed to file the reports required to be filed by us
under the Securities Act and the Exchange Act in a timely manner and to take
such further action as any holder of securities covered by the various
agreements reasonably requests to enable the holder to sell his securities
without registration, including making publicly available the information
necessary to permit sales of the securities pursuant to Rules 144 and 144A under
the Securities Act.
Under the various agreements with the selling stockholders, 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
the Exchange Act. To the extent indemnification is unavailable or insufficient,
the selling stockholders have agreed to contribute to the amount paid or payable
in connection with these liabilities.
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 for the year 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,
1999 and December 31, 1998 and for the years ended December 31, 1999 and
December 31, 1998 and the related schedules included in Columbia's Annual
Reports on Form 10-K for the fiscal years ended December 31, 1998 and December
31, 1999, and incorporated by reference in this prospectus and elsewhere in the
registration statement, have been audited by Goldstein Golub Kessler LLP,
independent public accountants. The reports of Goldstein Golub Kessler LLP on
the consolidated financial statements and the related schedule are incorporated
by reference in this document in reliance upon the authority of Goldstein Golub
Kessler LLP as experts in giving these reports.
19
<PAGE>
COLUMBIA LABORATORIES, INC.
153,933 Shares
Common Stock
----------
PROSPECTUS
----------
, 2000
<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....................................$ 329.93
Accounting fees and expenses............................$ 10,000.00
Legal fees and expenses.................................$ 50,000.00
Miscellaneous...........................................$ 400.00
--------------
Total...................................................$ 60,729.93
=============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Columbia Laboratories, Inc. 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 Restated Certificate of Incorporation, as amended (filed as
Exhibit 3.1 to Columbia's Registration Statement on Form S-18
(File No. 33-22062).*
4.1 Certificate of Designations, Preferences and Rights of Series
A Convertible Preferred Stock of Columbia, dated as of August
8, 1989 (filed as Exhibit (i) to Columbia's Current Report on
Form 8-K dated August 14, 1989).*
4.2 Certificate of Designations, Preferences and Rights of Series
B Convertible Preferred Stock of Columbia, dated as of August
12, 1991 (filed as Exhibit 4.4 to Columbia's Current Report on
Form 8-K dated August 22, 1991).*
4.3 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)).*
4.4 Securities Purchase Agreement, dated as of January 7, 1999,
between Columbia and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.2 to the 1998
10-K).*
4.5 Securities Purchase Agreement, dated as of January 19, 1999,
among Columbia, David M. Knott and Knott Partners, L.P. (filed
as Exhibit 4.3 to the 1998 10-K).*
4.6 Securities Purchase Agreement, dated as of February 1, 1999,
between Columbia and Windsor Partners, L.P. (filed as Exhibit
4.4 to the 1998 10-K).*
4.7 Registration Rights Agreement, dated as of January 7, 1999,
between Columbia and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.5 to the 1998
10-K).*
4.8 Form of Warrant to Purchase Common Stock, dated as of January
7, 1999 (filed as Exhibit 4.6 to the 1998 10-K).*
4.9 Warrant to Purchase Common Stock, dated as of September 23,
1999, issued to James J. Apostolakis (filed as Exhibit 4.7 to
Columbia's Annual Report on Form 10-K for the year ended
December 31, 1999 (the "1999-10-K)).*
4.10 Warrant Agreement, dated as of October 25, 1999, between
Columbia and Ryan, Beck & Co., Inc.**
4.11 Warrant Certificate, dated as of October 25, 1999, issued to
Ryan Beck & Co., Inc.**
4.12 Warrant Certificate, dated as of October 25, 1999, issued to
Randy F. Rock.**
4.13 Warrant Certificate, dated as of October 25, 1999, issued to
Michael J. Kollender.**
4.14 Warrant Certificate, dated as of October 25, 1999, issued to
Sharon diStefano.**
4.15 Warrant Agreement, dated as of May 6, 2000, between Columbia
and Ryan, Beck & Co., Inc.**
4.16 Warrant Certificate, dated as of May 6, 2000, issued to Ryan
Beck & Co., Inc.**
II-2
<PAGE>
4.17 Warrant Certificate, dated as of May 6, 2000, issued to Randy
F. Rock.**
4.18 Warrant Certificate, dated as of May 6, 2000, issued to
Michael J. Kollender.**
4.19 Warrant Certificate, dated as of May 6, 2000, issued to Sharon
diStefano.**
4.20 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 Columbia 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.**
10 Settlement Agreement and Release, dated as of March 16, 2000,
between Columbia Laboratories (Bermuda) Ltd. and Lake Consumer
Products, Inc. (filed as Exhibit 10.21 to the 1999 10-K).*
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5).**
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Goldstein Golub Kessler LLP.**
24 Power of Attorney (included on the signature page of this
Registration Statement)**
- --------------
* Incorporated by reference.
** Filed herewith.
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 in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement.
II-3
<PAGE>
(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,
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 26th day of May, 2000.
COLUMBIA LABORATORIES, INC.
By: /s/ David L. Weinberg
----------------------
David L. Weinberg
Chief Financial Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David L. Weinberg his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including, without limitation,
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ William J. Bologna Chairman of the Board of Directors and May 26, 2000
- -------------------------------------------- Chief Executive Officer
William J. Bologna (Principal Executive Officer)
/s/ James J. Apostolakis Vice Chairman of the Board of May 26, 2000
- -------------------------------------------- Directors and President
James J. Apostolakis
/s/ David L. Weinberg Vice President-Finance and May 26, 2000
- -------------------------------------------- Administration, Chief Financial
David L. Weinberg Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
/s/ Dominique de Ziegler Vice President-Pharmaceutical May 26, 2000
- -------------------------------------------- Development and Director
Dominique de Ziegler
/s/ Jean Carvais Director May 26, 2000
- --------------------------------------------
Jean Carvais
II-5
<PAGE>
<S> <C> <C>
/s/ Norman M. Meier Director May 26, 2000
- --------------------------------------------
Norman M. Meier
/s/ Denis M. O'Donnell Director May 26, 2000
- --------------------------------------------
Denis M. O'Donnell
/s/ Selwyn P. Oskowitz Director May 26, 2000
- --------------------------------------------
Selwyn P. Oskowitz
/s/ Robert C. Strauss Director May 26, 2000
- --------------------------------------------
Robert C. Strauss
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
3 Restated Certificate of Incorporation, as amended (filed as
Exhibit 3.1 to Columbia's Registration Statement on Form S-18
(File No. 33-22062).*
4.1 Certificate of Designations, Preferences and Rights of Series
A Convertible Preferred Stock of Columbia, dated as of August
8, 1989 (filed as Exhibit (i) to Columbia's Current Report on
Form 8-K dated August 14, 1989).*
4.2 Certificate of Designations, Preferences and Rights of Series
B Convertible Preferred Stock of Columbia, dated as of August
12, 1991 (filed as Exhibit 4.4 to Columbia's Current Report on
Form 8-K dated August 22, 1991).*
4.3 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)).*
4.4 Securities Purchase Agreement, dated as of January 7, 1999,
between Columbia and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.2 to the 1998
10-K).*
4.5 Securities Purchase Agreement, dated as of January 19, 1999,
among Columbia, David M. Knott and Knott Partners, L.P. (filed
as Exhibit 4.3 to the 1998 10-K).*
4.6 Securities Purchase Agreement, dated as of February 1, 1999,
between Columbia and Windsor Partners, L.P. (filed as Exhibit
4.4 to the 1998 10-K).*
4.7 Registration Rights Agreement, dated as of January 7, 1999,
between Columbia and each of the purchasers named on the
signature pages thereto (filed as Exhibit 4.5 to the 1998
10-K).*
4.8 Form of Warrant to Purchase Common Stock, dated as of January
7, 1999 (filed as Exhibit 4.6 to the 1998 10-K).*
4.9 Warrant to Purchase Common Stock, dated as of September 23,
1999, issued to James J. Apostolakis (filed as Exhibit 4.7 to
Columbia's Annual Report on Form 10-K for the year ended
December 31, 1999 (the "1999-10-K)).*
4.10 Warrant Agreement, dated as of October 25, 1999, between
Columbia and Ryan, Beck & Co., Inc.**
4.11 Warrant Certificate, dated as of October 25, 1999, issued to
Ryan Beck & Co., Inc.**
4.12 Warrant Certificate, dated as of October 25, 1999, issued to
Randy F. Rock.**
4.13 Warrant Certificate, dated as of October 25, 1999, issued to
Michael J. Kollender.**
4.14 Warrant Certificate, dated as of October 25, 1999, issued to
Sharon diStefano.**
4.15 Warrant Agreement, dated as of May 6, 2000, between Columbia
and Ryan, Beck & Co., Inc.**
4.16 Warrant Certificate, dated as of May 6, 2000, issued to Ryan
Beck & Co., Inc.**
II-7
<PAGE>
4.17 Warrant Certificate, dated as of May 6, 2000, issued to Randy
F. Rock.**
4.18 Warrant Certificate, dated as of May 6, 2000, issued to
Michael J. Kollender.**
4.19 Warrant Certificate, dated as of May 6, 2000, issued to Sharon
diStefano.**
4.20 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 Columbia 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.**
10 Settlement Agreement and Release, dated as of March 16, 2000,
between Columbia Laboratories (Bermuda) Ltd. and Lake Consumer
Products, Inc. (filed as Exhibit 10.21 to the 1999 10-K).*
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5).**
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Goldstein Golub Kessler LLP.**
24 Power of Attorney (included on the signature page of this
Registration Statement)**
- --------------
* Incorporated by reference.
** Filed herewith.
II-8
EXHIBIT 4.10
- -------------------------------------------------------------------------------
COLUMBIA LABORATORIES, INC.
AND
RYAN, BECK & CO., INC.
WARRANT AGREEMENT
DATED AS OF OCTOBER 25, 1999
WARRANT AGREEMENT dated as of October 25, 1999 between COLUMBIA
LABORATORIES, INC., a Delaware corporation (the "Company"), and Ryan, Beck &
Co., Inc. (hereinafter referred to variously as the "Holder", "Ryan, Beck" or
the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Ryan, Beck has agreed pursuant to an Engagement Letter (the
"Agreement") dated October 6, 1999 between Ryan, Beck, and the Company to
perform certain services on behalf of the Company; and
WHEREAS, the Company proposes to issue to Ryan, Beck (and/or designees)
warrants ("Warrants") to purchase up to an aggregate 12,500 shares of common
stock of the Company ("Common Stock"), as partial payment of the retainer for
such services;
NOW, THEREFORE, in consideration of the premises, the payment by Ryan,
Beck to the Company of an aggregate of twelve dollars and fifty cents ($12.50),
the agreements herein set forth and other good and valuable consideration,
hereby acknowledged, the parties hereto agree as follows:
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I. Grant. Ryan, Beck is hereby granted the right to purchase, at any
time from October 25, 1999, until 5:30 P.M., New York time, on October 25, 2004,
up to an aggregate of 12,500 shares of Common Stock (the "Shares") at an initial
exercise price (subject to adjustment as provided in Section 8 hereof) of
$7.0625 per share of Common Stock subject to the terms and conditions of this
Agreement. Except as set forth herein, the Shares issuable upon exercise of the
Warrants are in all respects identical to the shares of Common Stock that have
been issued to the public.
2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant.
ss.3.1 Method of Exercise. The Warrants initially are exercisable at an
aggregate initial exercise price per share of Common Stock set forth in Section
6 hereof payable by certified or official bank check in New York Clearing House
funds, subject to adjustment as provided in Section 8 hereof. Upon surrender of
a Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter defined)
for the shares of Common Stock purchased at the Company's principal offices
(presently located at 2875 Northeast 191 Street, Suite 400, Aventura, Florida
33180) the registered holder of a Warrant Certificate ("Holder" or "Holder")
shall be entitled to receive a certificate or certificates for the shares of
Common Stock so purchased. The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holder thereof, in whole or in
part (but not as to fractional shares of the Common Stock underlying the
Warrants). Warrants may be exercised to purchase all or part of the shares of
Common Stock represented thereby. In the case of the purchase of less than all
the shares of Common Stock purchasable under any Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the shares of Common Stock purchasable thereunder.
ss.3.2 Exercise by Surrender of Warrant. In addition to the method of
payment set forth in Section 3.1 and in lieu of any cash payment required
thereunder, the Holder(s) of the Warrants shall have the right at any time and
from time to time to exercise the Warrants in full or in part by surrendering
the Warrant Certificate in the manner specified in Section 3.1 in exchange for
the number of Shares equal to the product of (x) the number of Shares as to
which the Warrants are being exercised multiplied by (y) a fraction, the
numerator of which is the Market Price (as defined in Section 3.3 below) of the
Shares less the Exercise Price and the denominator of which is such Market
Price. Solely for the purposes of this paragraph, Market Price shall be
calculated either (i) on the date which the form of election attached hereto is
deemed to have been sent to the Company pursuant to Section 13 hereof ("Notice
Date") or (ii) as the average of the Market Prices for each of the five trading
days preceding the Notice Date, whichever of (i) or (ii) is greater.
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ss.3.3 Definition of Market Price. As used herein, the phrase "Market
Price" at any date shall be deemed to be the last reported sale price, or, in
case no such reported sale takes place on such day, the average of the last
reported sale prices for the last three (3) trading days, in either case as
officially reported by the American Stock Exchange or the principal securities
exchange on which the Common Stock is listed or admitted to trading or by the
Nasdaq National Market ("NNM"), or, if the Common Stock is not listed or
admitted to trading on any national securities exchanged or quoted by NNM, the
average closing bid price as furnished by the NASD through NNM or similar
organization if NNM is no longer reporting such information, or if the Common
Stock is not quoted on NNM, as determined in good faith by resolution of the
Board of Directors of the Company, based on the best information available to
it.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock and/or other securities,
properties or rights underlying such Warrants, shall be made forthwith (and in
any event within five (5) business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the provisions
of Sections 5 and 7 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Shares
underlying the Warrants (and/or other securities, property or rights issuable
upon the exercise of the Warrants) shall be executed on behalf of the Company by
the manual or facsimile signature of the then Chairman or Vice Chairman of the
Board of Directors or President or Vice President of the Company. Warrant
Certificates shall be dated the date of execution by the Company upon initial
issuance, division, exchange, substitution or transfer.
5. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
are being acquired as an investment and not with a view to the distribution
thereof, except to officers or employees of the Holder.
6. Exercise Price.
ss.6.1 Initial and Adjusted Exercise Price. Except as otherwise
provided in Section 8 hereof, the initial exercise price of each Warrant shall
be $7.0625 per share of Common Stock. The adjusted exercise price shall be the
price which shall result from time to time from any and all adjustments of the
initial exercise price in accordance with the provisions of Section 8 hereof.
Any transfer of a Warrant shall constitute an automatic transfer and assignment
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of the registration rights set forth in section 7 hereof with regard to the
Common Stock, properties or rights underlying the Warrants.
ss.6.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
ss.7.1 Piggyback Registration. If, at any time commencing after the
date hereof and expiring seven (7) years from the effective date, the Company
proposes to register any of its equity securities under the Act (other than in
connection with a merger or pursuant to Form S-8 or S-4) it will give written
notice by registered mail, at least thirty (30) days prior to the filing of each
such registration statement, to Ryan, Beck and to all other Holder(s) of the
Warrants and/or the Warrant Securities of its intention to do so. If Ryan, Beck
or other Holder(s) of the Warrants and/or Warrant Securities notify the Company
within twenty (20) business days after receipt of any such notice of its or
their desire to include any such securities in such proposed registration
statement, the Company shall afford Ryan, Beck and such Holder(s) of the
Warrants and/or Warrant Securities the opportunity to have any such Warrant
Securities registered under such registration statement (sometimes referred to
herein as the "Piggyback Registration").
Notwithstanding the provisions of this Section 7.1, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 7.1 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
If a Piggyback Registration is an underwritten primary registration on
behalf of the Company, and the managing underwriters advise the Company in
writing that in their reasonable opinion based upon market conditions the number
of securities requested to be included in such registration exceeds the number
which can be sold in such offering the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the Warrant
Securities requested to be included in such registration, pro rata among the
Holders of such Warrant Securities, on the basis of the number of shares
requested by such holders to be included, and (iii) third, other securities to
be included in such registration.
ss.7.2 Demand Registration.
(a) At any time after the date hereof and expiring five (5) years from
the effective date, the Holder of the Warrants and/or Warrant Securities
representing a "Majority" (as hereinafter defined) of such securities (assuming
the exercise of all of the Warrants) shall have the right (which right is in
addition to the registration rights under Section 7.1 hereof), exercisable by
written notice to the Company, to have the Company prepare and file with the
Securities and Exchange Commission (the "Commission"), on one occasion, a
registration statement and such other documents, including a prospectus, as may
be necessary in the opinion of both counsel for the Company and counsel for
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Ryan, Beck and Holder, in order to comply with the provisions of the Act, so as
to permit a public offering and sale of their respective Warrant Securities for
nine (9) consecutive months by such Holder and any other Holder of the Warrants
and/or Warrant Securities who notify the Company within ten (10) days after
receiving notice from the Company of such request.
(b) The Company covenants and agrees to give written notice of any
registration request under this Section 7.2 by any Holder or Holder(s) to all
other registered Holder(s) of the Warrants and the Warrant Securities within ten
(10) days from the date of the receipt of any such registration request.
(c) In addition to the registration rights under Section 7.1 and
subsection (a) of this Section 7.2, at any time commencing after the date hereof
and expiring five (5) years from the effective date, any Holder of Warrants
and/or Warrant Securities shall have the right, exercisable by written request
to the Company, to have the Company prepare and file, on one occasion, with the
Commission a registration statement so as to permit a public offering and sale
for nine (9) consecutive months by any such Holder of its Warrant Securities,
provided, however, that the provisions of Section 7.3(b) hereof shall not apply
to any such registration request and registration and all costs incident thereto
shall be at the expense of the Holder or Holders making such request.
(d) Notwithstanding anything to the contrary contained herein, if the
Company shall not have filed a registration statement for the Warrant Securities
within the time period specified in Section 7.3(a) hereof pursuant to the
written notice specified in Section 7.2(a) of a Majority of the Holders of the
Warrants and/or Warrant Securities, the Company shall have the option, upon the
written notice of election of a Majority of the Holders of the Warrants and/or
Warrant Securities, to repurchase (i) any and all Warrant Securities at the
higher of the Market Price per share of Common Stock on (x) the date of the
notice sent pursuant to Section 7.2(a) or (y) the expiration of the period
specified in Section 7.3(a) and (ii) any and all Warrants at such Market Price
less the Exercise Price of such Warrant. Such repurchase shall be in immediately
available funds and shall close within two (2) days after the later of (i) the
expiration of the period specified in Section 7.3(a) or (ii) the delivery of the
written notice of election specified in this Section 7.2(d). The Company shall
have no obligation to exercise the option that may be granted pursuant to the
terms of this paragraph (d) of Section 7.2 hereof.
ss.7.3 Covenants of the Company With Respect to Registration. In
connection with any registration under Section 7.1 or 7.2 hereof, the Company
covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within thirty (30) days of receipt of any demand therefor, shall use
its best efforts to have any registration statements declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell Warrant
Securities such number of prospectuses as shall reasonably be requested.
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(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Sections 7.1 and 7.2(a) hereof including, without limitation, the Company's
legal and accounting fees, printing expenses, blue sky fees and expenses. The
Holder(s) will pay all costs, fees and expenses in connection with any
registration statement filed pursuant to Section 7.2(c). If the Company shall
fail to comply with the provisions of Section 7.3(a), the Company shall, in
addition to any other equitable or other relief available to the Holder(s), be
liable for any or all incidental or special damages sustained by the Holder(s)
requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in
qualifying or registering the Warrant Securities included in a registration
statement for offering and sale under the securities or blue sky laws of such
states as reasonably are requested by the Holder(s), provided that the Company
shall not be obligated to execute or file any general consent to service of
process or to qualify as a foreign corporation to do business under the laws of
any such jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Warrant Securities
to be sold pursuant to any registration statement and each person, if any, who
controls such Holder within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement.
(e) The Holder(s) of the Warrant Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holder, or their successors or assigns, for
specific inclusion in such registration statement.
(f) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to exercise their Warrants prior to the initial filing of any
registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other
than the Warrant Securities to be included in any registration statement filed
pursuant to Section 7.2 hereof, without the prior written consent of the
Holder(s) of the Warrants and Warrant Securities representing a Majority of such
securities.
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(h) The Company shall furnish to each Holder participating in the
offering and to each underwriter, if any, a signed counterpart, addressed to
such Holder or underwriter, of (i) an opinion of counsel to the Company, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), and (ii) a "cold comfort" letter
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement) signed by the independent
public accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities.
(i) The Company shall as soon as practicable after the effective date
of the registration statement, and in any event within 15 months thereafter,
make "generally available to its security holders" (within the meaning of Rule
158 under the Act) an earnings statement (which need not be audited) complying
with Section 11(a) of the Act and covering a period of at least 12 consecutive
months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly to each Holder participating in
the offering requesting the correspondence and memoranda described below and to
the managing underwriters, copies of all correspondence between the Commission
and the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the registration
statement and permit each Holder and underwriters to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted
from the registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. ("NASD"). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable extent and at
such reasonable times and as often as any such Holder or underwriter shall
reasonably request.
(k) The Company shall enter into an underwriting agreement with the
managing underwriters selected for such underwriting by Holder(s) holding a
Majority of the Warrant Securities requested to be included in such
underwriting, which may be Ryan, Beck. Such agreement shall be satisfactory in
form and substance to the Company, each Holder and such managing underwriters,
and shall contain such representations, warranties and covenants by the Company
and such other terms as are customarily contained in agreements of that type
used by the managing underwriter. The Holder(s) shall be parties to any
underwriting agreement relating to an underwritten sale of their Warrant
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such
Holder(s). Such Holder(s) shall not be required to make any representations or
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warranties to or agreements with the Company or the underwriters except as they
may relate to such Holder(s) and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request
therefor by any Holder(s), the Company shall include in the registration
statement any other securities of the Company held by such Holder(s) as of the
date of filing of such registration statement, including without limitation
restricted shares of Common Stock, options, warrants or any other securities
convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to
the Holder(s) of Warrants or Warrant Securities, shall mean in excess of fifty
percent (50%) of the then outstanding Warrants or Warrant Securities that (i)
are not held by the Company, an affiliate, officer, creditor, employee or agent
thereof or any of their respective affiliates, members of their family, persons
acting as nominees or in conjunction therewith and (ii) have not been resold to
the public pursuant to a registration statement filed with the Commission under
the Act.
8. Adjustments to Exercise Price and Number of Securities.
ss.8.1 Subdivision and Combination. In case the Company shall at any
time subdivide or combine the outstanding shares of Common Stock, the Exercise
Price shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
ss.8.2 Stock Dividends and Distributions. In case the Company shall pay
a dividend in, or make a distribution of, shares of Common Stock or of the
Company's capital stock convertible into Common Stock, the Exercise Price shall
forthwith be proportionately decreased. An adjustment made pursuant to this
Section 8.2 shall be made as of the record date for the subject stock dividend
or distribution.
ss.8.3 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 8, the number of
Warrant Securities issuable upon the exercise at the adjusted exercise price of
each Warrant shall be adjusted to the nearest full amount by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Securities issuable upon exercise of the
Warrants immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
ss.8.4 Definition of Common Stock. For the purpose of this Agreement,
the term "Common Stock" shall mean (i) the class of stock designated as Common
Stock in the Articles of Incorporation of the Company as may be amended as of
the date hereof, or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value.
ss.8.5 Merger or Consolidation. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
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in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental warrant agreement providing that the holder of each
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of such
warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger, by a holder of the number
of shares of Common Stock of the Company for which such warrant might have been
exercised immediately prior to such consolidation, merger, sale or transfer.
Such supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 8. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
ss.8.6 No Adjustment of Exercise Price in Certain Cases. No adjustment
of the Exercise Price shall be made:
(a) Upon the issuance or sale of the Warrants or the shares of
Common Stock issuable upon the exercise of the Warrants;
(b) If the amount of said adjustment shall be less than two cents
(2(cent)) per Warrant Security, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least two cents (2(cent)) per Warrant Security.
9. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Warrant Securities in such denominations as
shall be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
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11. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock and other securities issuable upon such exercise
shall be duly and validly issued, fully paid, non-assessable and not subject to
the preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon the exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges on which the Common
Stock issued to the public in connection herewith may then be listed and/or
quoted.
12. Notices to Warrant Holder. Nothing contained in this Agreement
shall be construed as conferring upon the Holder the right to vote or to consent
or to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
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13. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made and sent when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3
hereof or to such other address as the Company may designate by notice to the
Holder; or
(c) If to Ryan, Beck, to Ryan, Beck & Co., 200 Park Avenue, New
York, NY 10166, Attention: Randy F. Rock.
14. Supplements and Amendments. The Company and Ryan, Beck may from
time to time supplement or amend this Agreement without the approval of any
holder of Warrant Certificates (other than Ryan, Beck) in order to cure any
ambiguity, to correct or supplement any provision contained herein which may be
defective or inconsistent with any provisions herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and Ryan, Beck may deem necessary or desirable and which the Company and Ryan,
Beck deem shall not adversely affect the interests of the Holder(s) of Warrant
Certificates.
15. Successors. All the covenants and provisions of this
Agreement shall be binding upon and inure to the benefit of the Company, the
Holder(s) and their respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate at the close of
business on October 25, 2006. Notwithstanding the foregoing, the indemnification
provisions of Section 7 shall survive such termination until the close of
business on October 25, 2012.
17. Governing Law; Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company, Ryan, Beck and the Holder hereby agree that any action,
proceeding or claim against it arising out of, or relating in any way to, this
Agreement shall be brought and enforced in the courts of the State of New York
or of the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company, Ryan, Beck and the Holder hereby irrevocably waive any objection to
such exclusive jurisdiction or inconvenient forum. Any such process or summons
to be served upon any of the Company, Ryan, Beck and the Holder(s) (at the
option of the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof, by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
13 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the party so served in any action, proceeding or claim. The
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Company, Ryan, Beck and the Holder(s) agree that the prevailing party(ies) in
any such action or proceeding shall be entitled to recover from the other
party(ies) all of its/their reasonable legal costs and expenses relating to such
action or proceeding and/or incurred in connection with the preparation
therefor.
18. Entire Agreement; Modification. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and may not be modified or amended except by a writing duly signed by the
party against whom enforcement of the modification or amendment is sought.
19. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and Ryan,
Beck and any other registered Holder(s) of the Warrant Certificates or Warrant
Securities any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole benefit of the Company and Ryan, Beck
and any other registered Holder(s) of Warrant Certificates or Warrant
Securities.
22. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
COLUMBIA LABORATORIES, INC.
By:/S/ William J. Bologna
----------------------
Name: William J. Bologna
Title: Chairman
Attest:/S/ David L. Weinberg
---------------------
Secretary: David L. Weinberg
RYAN, BECK & CO., INC.
By:/S/ Randy F. Rock
-----------------
Name: Randy F. Rock
Title: Managing Director
13
<PAGE>
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, October 25, 2004
No. W- Warrants to Purchase
12,500 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that , or registered assigns, is the
registered holder of 12,500 Warrants to purchase initially, at any time from
October 25, 1999 until 5:30 p.m. New York time on October 25, 2004 ("Expiration
Date"), up to (12,500) twelve thousand five hundred fully-paid and
non-assessable shares of common stock, ("Common Stock") of COLUMBIA
LABORATORIES, INC., a Delaware corporation (the "Company"), (one share of Common
Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of October 25, 1999 between the Company,
and RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise
Price shall be made by certified or official bank check in New York Clearing
House funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
14
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
15
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of October 25, 1999
COLUMBIA LABORATORIES, INC.
[SEAL]
By:
-------------------------------
Name:
Title:
Attest:
Secretary
16
<PAGE>
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase:
shares of Common Stock;
---------------------------
and herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of Columbia
Laboratories, Inc. in the amount of $________, all in accordance with the terms
of Section 3.1 of the Agent's Warrant Agreement dated as of October 25, 1999
between Columbia Laboratories, Inc. and Ryan, Beck & Co. Inc. The undersigned
requests that a certificate for such securities be registered in the name
of__________whose address is_________________and that such Certificate be
delivered to___________________whose address is________________.
Dated:
Signature
------------------------------------------------
(Signature must conform in all respects to name of holder as specified
on the face of the Warrant Certificate.)
------------------------------------------------------
(Insert Social Security or Other Identifying Number of Holder)
17
<PAGE>
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.2]
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase shares of Common Stock of COLUMBIA
LABORATORIES, INC., in accordance with the terms of Section 3.2 of that certain
Warrant Agreement dated as of October 25, 1999 between Columbia Laboratories,
Inc. and Ryan, Beck & Co., Inc. and herewith tenders in payment for such
securities __________________________ Warrants. The undersigned requests that a
certificate for such securities be registered in the name of
__________________________ whose address is
___________________________________________and that such Certificate be
delivered to _________________________________________________________ whose
address is________________________________________________.
Dated: _________________________________
Signature: _______________________________
(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant Certificate).
- ------------------------------------------
(Insert Social Security or Other Identifying Number
of Holder)
18
<PAGE>
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED____________________hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Warrant Certificate on the books of the within-named Company, with full
power of substitution.
Dated: Signature:
-------------------------- ---------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
----------------------------------------
(Insert Social Security or Other Identifying Number of Assignee)
19
EXHIBIT 4.11
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, October 25, 2004
No. W- 5 Warrants to Purchase
543 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Ryan Beck & Co., Inc., or
registered assigns, is the registered holder of 543 Warrants to purchase
initially, at any time from October 25, 1999 until 5:30 p.m. New York time on
October 25, 2004 ("Expiration Date"), up to (543) five hundred forty three
fully-paid and non-assessable shares of common stock, ("Common Stock") of
COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"), (one share
of Common Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of October 25, 1999 between the Company,
and RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise
Price shall be made by certified or official bank check in New York Clearing
House funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
1
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of October 25, 1999
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/s/ William J. Bologna
------------------------
Name: William J. Bologna
Title: Chairman
Attest:/s/ David L. Weinberg
- ----------------------------
Secretary David L. Weinberg
3
EXHIBIT 4.12
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, October 25, 2004
No. W-3 Warrants to Purchase
2,991 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Randy F. Rock, or registered
assigns, is the registered holder of 2,991 Warrants to purchase initially, at
any time from October 25, 1999 until 5:30 p.m. New York time on October 25, 2004
("Expiration Date"), up to (2,991) two thousand nine hundred ninety one
fully-paid and non-assessable shares of common stock, ("Common Stock") of
COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"), (one share
of Common Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of October 25, 1999 between the Company,
and RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise
Price shall be made by certified or official bank check in New York Clearing
House funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
1
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of October 25, 1999
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/S/ William J. Bologna
-----------------------
Name: William J. Bologna
Title: Chairman
Attest:/S/ David L. Weinberg
---------------------
Secretary: David L. Weinberg
3
EXHIBIT 4.13
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, October 25, 2004
No. W- 2 Warrants to Purchase
2,991 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Michael J. Kollender, or
registered assigns, is the registered holder of 2,991 Warrants to purchase
initially, at any time from October 25, 1999 until 5:30 p.m. New York time on
October 25, 2004 ("Expiration Date"), up to (2,991) two thousand nine hundred
ninety one fully-paid and non-assessable shares of common stock, ("Common
Stock") of COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"),
(one share of Common Stock referred to individually as a "Security" and
collectively as the "Securities") at the initial exercise price, subject to
adjustment in certain events (the "Exercise Price"), of $7.0625 per share of
Common Stock upon surrender of this Warrant Certificate and payment of the
Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the warrant agreement dated as of October 25,
1999 between the Company, and RYAN, BECK & CO., Inc. (the "Warrant Agreement").
Payment of the Exercise Price shall be made by certified or official bank check
in New York Clearing House funds payable to the order of the Company or by
surrender of this Warrant Certificate in connection with an election to purchase
pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
1
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of October 25, 1999
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/S/ William J. Bologna
-----------------------
Name: William J. Bologna
Title: Chairman
Attest:/S/ David L. Weinberg
---------------------
Secretary: David L. Weinberg
3
EXHIBIT 4.14
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, October 25, 2004
No. W- 1 Warrants to Purchase
1,625 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Sharon diStefano, or registered
assigns, is the registered holder of 1,625 Warrants to purchase initially, at
any time from October 25, 1999 until 5:30 p.m. New York time on October 25, 2004
("Expiration Date"), up to (1,625) one thousand six hundred twenty five
fully-paid and non-assessable shares of common stock, ("Common Stock") of
COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"), (one share
of Common Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of October 25, 1999 between the Company,
and RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise
Price shall be made by certified or official bank check in New York Clearing
House funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
1
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of October 25, 1999
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/S/ William J. Bologna
-----------------------
Name: William J. Bologna
Title: Chairman
Attest:/S/ David L. Weinberg
---------------------
Secretary: David L. Weinberg
3
EXHIBIT 4.15
- --------------------------------------------------------------------------------
COLUMBIA LABORATORIES, INC.
AND
RYAN, BECK & CO., INC.
WARRANT AGREEMENT
DATED AS OF MAY 6, 2000
- --------------------------------------------------------------------------------
WARRANT AGREEMENT dated as of May 6, 2000 between COLUMBIA
LABORATORIES, INC., a Delaware corporation (the "Company"), and Ryan, Beck &
Co., Inc. (hereinafter referred to variously as the "Holder", "Ryan, Beck" or
the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Ryan, Beck has agreed pursuant to an Engagement Letter (the
"Agreement") dated October 25, 1999 between Ryan, Beck, and the Company to
perform certain services on behalf of the Company; and
WHEREAS, the Company proposes to issue to Ryan, Beck (and/or designees)
warrants ("Warrants") to purchase up to an aggregate 12,500 shares of common
stock of the Company ("Common Stock"), as partial payment of the retainer for
such services;
NOW, THEREFORE, in consideration of the premises, the payment by Ryan,
Beck to the Company of an aggregate of twelve dollars and fifty cents ($12.50),
the agreements herein set forth and other good and valuable consideration,
hereby acknowledged, the parties hereto agree as follows:
1
<PAGE>
I. Grant. Ryan, Beck is hereby granted the right to purchase, at any
time from May 6, 2000, until 5:30 P.M., New York time, on May 6, 2005, up to an
aggregate of 12,500 shares of Common Stock (the "Shares") at an initial exercise
price (subject to adjustment as provided in Section 8 hereof) of $7.0625 per
share of Common Stock subject to the terms and conditions of this Agreement.
Except as set forth herein, the Shares issuable upon exercise of the Warrants
are in all respects identical to the shares of Common Stock that have been
issued to the public.
2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant.
ss.3.1 Method of Exercise. The Warrants initially are exercisable at an
aggregate initial exercise price per share of Common Stock set forth in Section
6 hereof payable by certified or official bank check in New York Clearing House
funds, subject to adjustment as provided in Section 8 hereof. Upon surrender of
a Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter defined)
for the shares of Common Stock purchased at the Company's principal offices
(presently located at 2875 Northeast 191 Street, Suite 400, Aventura, Florida
33180) the registered holder of a Warrant Certificate ("Holder" or "Holder")
shall be entitled to receive a certificate or certificates for the shares of
Common Stock so purchased. The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holder thereof, in whole or in
part (but not as to fractional shares of the Common Stock underlying the
Warrants). Warrants may be exercised to purchase all or part of the shares of
Common Stock represented thereby. In the case of the purchase of less than all
the shares of Common Stock purchasable under any Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the shares of Common Stock purchasable thereunder.
ss.3.2 Exercise by Surrender of Warrant. In addition to the method of
payment set forth in Section 3.1 and in lieu of any cash payment required
thereunder, the Holder(s) of the Warrants shall have the right at any time and
from time to time to exercise the Warrants in full or in part by surrendering
the Warrant Certificate in the manner specified in Section 3.1 in exchange for
the number of Shares equal to the product of (x) the number of Shares as to
which the Warrants are being exercised multiplied by (y) a fraction, the
numerator of which is the Market Price (as defined in Section 3.3 below) of the
Shares less the Exercise Price and the denominator of which is such Market
Price. Solely for the purposes of this paragraph, Market Price shall be
calculated either (i) on the date which the form of election attached hereto is
deemed to have been sent to the Company pursuant to Section 13 hereof ("Notice
Date") or (ii) as the average of the Market Prices for each of the five trading
days preceding the Notice Date, whichever of (i) or (ii) is greater.
ss.3.3 Definition of Market Price. As used herein, the phrase "Market
Price" at any date shall be deemed to be the last reported sale price, or, in
case no such reported sale takes place on such day, the average of the last
reported sale prices for the last three (3) trading days, in either case as
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officially reported by the American Stock Exchange or the principal securities
exchange on which the Common Stock is listed or admitted to trading or by the
Nasdaq National Market ("NNM"), or, if the Common Stock is not listed or
admitted to trading on any national securities exchanged or quoted by NNM, the
average closing bid price as furnished by the NASD through NNM or similar
organization if NNM is no longer reporting such information, or if the Common
Stock is not quoted on NNM, as determined in good faith by resolution of the
Board of Directors of the Company, based on the best information available to
it.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock and/or other securities,
properties or rights underlying such Warrants, shall be made forthwith (and in
any event within five (5) business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the provisions
of Sections 5 and 7 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Shares
underlying the Warrants (and/or other securities, property or rights issuable
upon the exercise of the Warrants) shall be executed on behalf of the Company by
the manual or facsimile signature of the then Chairman or Vice Chairman of the
Board of Directors or President or Vice President of the Company. Warrant
Certificates shall be dated the date of execution by the Company upon initial
issuance, division, exchange, substitution or transfer.
5. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
are being acquired as an investment and not with a view to the distribution
thereof, except to officers or employees of the Holder.
6. Exercise Price.
ss.6.1 Initial and Adjusted Exercise Price. Except as otherwise
provided in Section 8 hereof, the initial exercise price of each Warrant shall
be $7.0625 per share of Common Stock. The adjusted exercise price shall be the
price which shall result from time to time from any and all adjustments of the
initial exercise price in accordance with the provisions of Section 8 hereof.
Any transfer of a Warrant shall constitute an automatic transfer and assignment
of the registration rights set forth in section 7 hereof with regard to the
Common Stock, properties or rights underlying the Warrants.
ss.6.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
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7. Registration Rights.
ss.7.1 Piggyback Registration. If, at any time commencing after the
date hereof and expiring seven (7) years from the effective date, the Company
proposes to register any of its equity securities under the Act (other than in
connection with a merger or pursuant to Form S-8 or S-4) it will give written
notice by registered mail, at least thirty (30) days prior to the filing of each
such registration statement, to Ryan, Beck and to all other Holder(s) of the
Warrants and/or the Warrant Securities of its intention to do so. If Ryan, Beck
or other Holder(s) of the Warrants and/or Warrant Securities notify the Company
within twenty (20) business days after receipt of any such notice of its or
their desire to include any such securities in such proposed registration
statement, the Company shall afford Ryan, Beck and such Holder(s) of the
Warrants and/or Warrant Securities the opportunity to have any such Warrant
Securities registered under such registration statement (sometimes referred to
herein as the "Piggyback Registration").
Notwithstanding the provisions of this Section 7.1, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 7.1 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
If a Piggyback Registration is an underwritten primary registration on
behalf of the Company, and the managing underwriters advise the Company in
writing that in their reasonable opinion based upon market conditions the number
of securities requested to be included in such registration exceeds the number
which can be sold in such offering the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the Warrant
Securities requested to be included in such registration, pro rata among the
Holders of such Warrant Securities, on the basis of the number of shares
requested by such holders to be included, and (iii) third, other securities to
be included in such registration.
ss.7.2 Demand Registration.
(a) At any time after the date hereof and expiring five (5) years from
the effective date, the Holder of the Warrants and/or Warrant Securities
representing a "Majority" (as hereinafter defined) of such securities (assuming
the exercise of all of the Warrants) shall have the right (which right is in
addition to the registration rights under Section 7.1 hereof), exercisable by
written notice to the Company, to have the Company prepare and file with the
Securities and Exchange Commission (the "Commission"), on one occasion, a
registration statement and such other documents, including a prospectus, as may
be necessary in the opinion of both counsel for the Company and counsel for
Ryan, Beck and Holder, in order to comply with the provisions of the Act, so as
to permit a public offering and sale of their respective Warrant Securities for
nine (9) consecutive months by such Holder and any other Holder of the Warrants
and/or Warrant Securities who notify the Company within ten (10) days after
receiving notice from the Company of such request.
(b) The Company covenants and agrees to give written notice of any
registration request under this Section 7.2 by any Holder or Holder(s) to all
other registered Holder(s) of the Warrants and the Warrant Securities within ten
(10) days from the date of the receipt of any such registration request.
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(c) In addition to the registration rights under Section 7.1 and
subsection (a) of this Section 7.2, at any time commencing after the date hereof
and expiring five (5) years from the effective date, any Holder of Warrants
and/or Warrant Securities shall have the right, exercisable by written request
to the Company, to have the Company prepare and file, on one occasion, with the
Commission a registration statement so as to permit a public offering and sale
for nine (9) consecutive months by any such Holder of its Warrant Securities,
provided, however, that the provisions of Section 7.3(b) hereof shall not apply
to any such registration request and registration and all costs incident thereto
shall be at the expense of the Holder or Holders making such request.
(d) Notwithstanding anything to the contrary contained herein, if the
Company shall not have filed a registration statement for the Warrant Securities
within the time period specified in Section 7.3(a) hereof pursuant to the
written notice specified in Section 7.2(a) of a Majority of the Holders of the
Warrants and/or Warrant Securities, the Company shall have the option, upon the
written notice of election of a Majority of the Holders of the Warrants and/or
Warrant Securities, to repurchase (i) any and all Warrant Securities at the
higher of the Market Price per share of Common Stock on (x) the date of the
notice sent pursuant to Section 7.2(a) or (y) the expiration of the period
specified in Section 7.3(a) and (ii) any and all Warrants at such Market Price
less the Exercise Price of such Warrant. Such repurchase shall be in immediately
available funds and shall close within two (2) days after the later of (i) the
expiration of the period specified in Section 7.3(a) or (ii) the delivery of the
written notice of election specified in this Section 7.2(d). The Company shall
have no obligation to exercise the option that may be granted pursuant to the
terms of this paragraph (d) of Section 7.2 hereof.
ss.7.3 Covenants of the Company With Respect to Registration. In
connection with any registration under Section 7.1 or 7.2 hereof, the Company
covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within thirty (30) days of receipt of any demand therefor, shall use
its best efforts to have any registration statements declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell Warrant
Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Sections 7.1 and 7.2(a) hereof including, without limitation, the Company's
legal and accounting fees, printing expenses, blue sky fees and expenses. The
Holder(s) will pay all costs, fees and expenses in connection with any
registration statement filed pursuant to Section 7.2(c). If the Company shall
fail to comply with the provisions of Section 7.3(a), the Company shall, in
addition to any other equitable or other relief available to the Holder(s), be
liable for any or all incidental or special damages sustained by the Holder(s)
requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in
qualifying or registering the Warrant Securities included in a registration
statement for offering and sale under the securities or blue sky laws of such
states as reasonably are requested by the Holder(s), provided that the Company
shall not be obligated to execute or file any general consent to service of
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process or to qualify as a foreign corporation to do business under the laws of
any such jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Warrant Securities
to be sold pursuant to any registration statement and each person, if any, who
controls such Holder within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement.
(e) The Holder(s) of the Warrant Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holder, or their successors or assigns, for
specific inclusion in such registration statement.
(f) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to exercise their Warrants prior to the initial filing of any
registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other
than the Warrant Securities to be included in any registration statement filed
pursuant to Section 7.2 hereof, without the prior written consent of the
Holder(s) of the Warrants and Warrant Securities representing a Majority of such
securities.
(h) The Company shall furnish to each Holder participating in the
offering and to each underwriter, if any, a signed counterpart, addressed to
such Holder or underwriter, of (i) an opinion of counsel to the Company, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), and (ii) a "cold comfort" letter
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement) signed by the independent
public accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities.
(i) The Company shall as soon as practicable after the effective date
of the registration statement, and in any event within 15 months thereafter,
make "generally available to its security holders" (within the meaning of Rule
158 under the Act) an earnings statement (which need not be audited) complying
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with Section 11(a) of the Act and covering a period of at least 12 consecutive
months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly to each Holder participating in
the offering requesting the correspondence and memoranda described below and to
the managing underwriters, copies of all correspondence between the Commission
and the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the registration
statement and permit each Holder and underwriters to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted
from the registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. ("NASD"). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable extent and at
such reasonable times and as often as any such Holder or underwriter shall
reasonably request.
(k) The Company shall enter into an underwriting agreement with the
managing underwriters selected for such underwriting by Holder(s) holding a
Majority of the Warrant Securities requested to be included in such
underwriting, which may be Ryan, Beck. Such agreement shall be satisfactory in
form and substance to the Company, each Holder and such managing underwriters,
and shall contain such representations, warranties and covenants by the Company
and such other terms as are customarily contained in agreements of that type
used by the managing underwriter. The Holder(s) shall be parties to any
underwriting agreement relating to an underwritten sale of their Warrant
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such
Holder(s). Such Holder(s) shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters except as they
may relate to such Holder(s) and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request
therefor by any Holder(s), the Company shall include in the registration
statement any other securities of the Company held by such Holder(s) as of the
date of filing of such registration statement, including without limitation
restricted shares of Common Stock, options, warrants or any other securities
convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to
the Holder(s) of Warrants or Warrant Securities, shall mean in excess of fifty
percent (50%) of the then outstanding Warrants or Warrant Securities that (i)
are not held by the Company, an affiliate, officer, creditor, employee or agent
thereof or any of their respective affiliates, members of their family, persons
acting as nominees or in conjunction therewith and (ii) have not been resold to
the public pursuant to a registration statement filed with the Commission under
the Act.
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8. Adjustments to Exercise Price and Number of Securities.
ss.8.1 Subdivision and Combination. In case the Company shall at any
time subdivide or combine the outstanding shares of Common Stock, the Exercise
Price shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
ss.8.2 Stock Dividends and Distributions. In case the Company shall pay
a dividend in, or make a distribution of, shares of Common Stock or of the
Company's capital stock convertible into Common Stock, the Exercise Price shall
forthwith be proportionately decreased. An adjustment made pursuant to this
Section 8.2 shall be made as of the record date for the subject stock dividend
or distribution.
ss.8.3 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 8, the number of
Warrant Securities issuable upon the exercise at the adjusted exercise price of
each Warrant shall be adjusted to the nearest full amount by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Securities issuable upon exercise of the
Warrants immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
ss.8.4 Definition of Common Stock. For the purpose of this Agreement,
the term "Common Stock" shall mean (i) the class of stock designated as Common
Stock in the Articles of Incorporation of the Company as may be amended as of
the date hereof, or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value.
ss.8.5 Merger or Consolidation. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental warrant agreement providing that the holder of each
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of such
warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger, by a holder of the number
of shares of Common Stock of the Company for which such warrant might have been
exercised immediately prior to such consolidation, merger, sale or transfer.
Such supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 8. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
ss.8.6 No Adjustment of Exercise Price in Certain Cases. No adjustment
of the Exercise Price shall be made:
(a) Upon the issuance or sale of the Warrants or the shares of
Common Stock issuable upon the exercise of the Warrants;
(b) If the amount of said adjustment shall be less than two cents
(2(cent)) per Warrant Security, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
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forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least two cents (2(cent)) per Warrant Security.
9. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Warrant Securities in such denominations as
shall be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
11. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock and other securities issuable upon such exercise
shall be duly and validly issued, fully paid, non-assessable and not subject to
the preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon the exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges on which the Common
Stock issued to the public in connection herewith may then be listed and/or
quoted.
12. Notices to Warrant Holder. Nothing contained in this Agreement
shall be construed as conferring upon the Holder the right to vote or to consent
or to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
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(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made and sent when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
(d) If to the Company, to the address set forth in Section 3
hereof or to such other address as the Company may designate by notice to the
Holder; or
(e) If to Ryan, Beck, to Ryan, Beck & Co., 200 Park Avenue, New
York, NY 10166, Attention: Randy F. Rock.
14. Supplements and Amendments. The Company and Ryan, Beck may from
time to time supplement or amend this Agreement without the approval of any
holder of Warrant Certificates (other than Ryan, Beck) in order to cure any
ambiguity, to correct or supplement any provision contained herein which may be
defective or inconsistent with any provisions herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and Ryan, Beck may deem necessary or desirable and which the Company and Ryan,
Beck deem shall not adversely affect the interests of the Holder(s) of Warrant
Certificates.
15. Successors. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holder(s) and
their respective successors and assigns hereunder.
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16. Termination. This Agreement shall terminate at the close of
business on May 7, 2007. Notwithstanding the foregoing, the indemnification
provisions of Section 7 shall survive such termination until the close of
business on May 6, 2012.
17. Governing Law; Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company, Ryan, Beck and the Holder hereby agree that any action,
proceeding or claim against it arising out of, or relating in any way to, this
Agreement shall be brought and enforced in the courts of the State of New York
or of the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company, Ryan, Beck and the Holder hereby irrevocably waive any objection to
such exclusive jurisdiction or inconvenient forum. Any such process or summons
to be served upon any of the Company, Ryan, Beck and the Holder(s) (at the
option of the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof, by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
13 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the party so served in any action, proceeding or claim. The
Company, Ryan, Beck and the Holder(s) agree that the prevailing party(ies) in
any such action or proceeding shall be entitled to recover from the other
party(ies) all of its/their reasonable legal costs and expenses relating to such
action or proceeding and/or incurred in connection with the preparation
therefor.
18. Entire Agreement; Modification. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and may not be modified or amended except by a writing duly signed by the
party against whom enforcement of the modification or amendment is sought.
19. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and Ryan,
Beck and any other registered Holder(s) of the Warrant Certificates or Warrant
Securities any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole benefit of the Company and Ryan, Beck
and any other registered Holder(s) of Warrant Certificates or Warrant
Securities.
22. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
COLUMBIA LABORATORIES, INC.
By:/S/ William J. Bologna
-----------------------
Name: William J. Bologna
Title: Chairman and CEO
Attest:/S/ David L. Weinberg
Secretary: David L. Weinberg
RYAN, BECK & CO., INC.
By: /S/Randy F. Rock
----------------
Name: Randy F. Rock
Title: Managing Director
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, May 6, 2005
No. W- Warrants to Purchase
12,500 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that , or registered assigns, is the
registered holder of 12,500 Warrants to purchase initially, at any time from May
6, 2000 until 5:30 p.m. New York time on May 6, 2005 ("Expiration Date"), up to
(12,500) twelve thousand five hundred fully-paid and non-assessable shares of
common stock, ("Common Stock") of COLUMBIA LABORATORIES, INC., a Delaware
corporation (the "Company"), (one share of Common Stock referred to individually
as a "Security" and collectively as the "Securities") at the initial exercise
price, subject to adjustment in certain events (the "Exercise Price"), of
$7.0625 per share of Common Stock upon surrender of this Warrant Certificate and
payment of the Exercise Price at an office or agency of the Company, but subject
to the conditions set forth herein and in the warrant agreement dated as of May
6, 2000 between the Company, and RYAN, BECK & CO., Inc. (the "Warrant
Agreement"). Payment of the Exercise Price shall be made by certified or
official bank check in New York Clearing House funds payable to the order of the
Company or by surrender of this Warrant Certificate in connection with an
election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
13
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
14
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of May 6, 2000
COLUMBIA LABORATORIES, INC.
[SEAL]
By:
-----------------------
Name:
Title:
Attest:
Secretary
15
<PAGE>
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase:
shares of Common Stock;
---------------------------
and herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of Columbia
Laboratories, Inc. in the amount of $____ , all in accordance with the terms of
Section 3.1 of the Agent's Warrant Agreement dated as of May 6, 2000 between
Columbia Laboratories, Inc. and Ryan, Beck & Co. Inc. The undersigned requests
that a certificate for such securities be registered in the name of______ whose
address is_______ and that such Certificate be delivered to________ whose
address is________.
Dated:
Signature
------------------------------------------------
(Signature must conform in all respects to name of holder as specified
on the face of the Warrant Certificate.)
---------------------------------------
(Insert Social Security or Other Identifying Number of Holder)
16
<PAGE>
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.2]
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase shares of Common Stock of COLUMBIA
LABORATORIES, INC., in accordance with the terms of Section 3.2 of that certain
Warrant Agreement dated as of May 6, 2000 between Columbia Laboratories, Inc.
and Ryan, Beck & Co., Inc. and herewith tenders in payment for such securities
__________________________ Warrants. The undersigned requests that a certificate
for such securities be registered in the name of __________________________
whose address is ___________________________________________and that such
Certificate be delivered to
_________________________________________________________ whose address is
_______________________________________________.
Dated: _________________________________
Signature: _________________________________________
(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant Certificate).
- ------------------------------------------
(Insert Social Security or Other Identifying Number
of Holder)
17
<PAGE>
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED____________________hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Warrant Certificate on the books of the within-named Company, with full
power of substitution.
Dated: Signature:
-------------------------- ---------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
--------------------------------------
(Insert Social Security or Other Identifying Number of Assignee)
18
EXHIBIT 4.16
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, May 6, 2005
No. W- 4 Warrants to Purchase
4,350 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Ryan Beck & Co., Inc., or
registered assigns, is the registered holder of 4,350 Warrants to purchase
initially, at any time from May 6, 2000 until 5:30 p.m. New York time on May 6,
2005 ("Expiration Date"), up to (4,350) four thousand three hundred fifty
fully-paid and non-assessable shares of common stock, ("Common Stock") of
COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"), (one share
of Common Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of May 6, 2000 between the Company, and
RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise Price
shall be made by certified or official bank check in New York Clearing House
funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
1
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of May 6, 2000
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/S/ William J. Bologna
-----------------------
Name: William J. Bologna
Title: Chairman and CEO
Attest:/S/ David L. Weinberg
Secretary: David L. Weinberg
3
EXHIBIT 4.17
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, May 6, 2005
No. W-3 Warrants to Purchase
2,991 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Randy F. Rock, or registered
assigns, is the registered holder of 2,991 Warrants to purchase initially, at
any time from May 6, 2000 until 5:30 p.m. New York time on May 6, 2005
("Expiration Date"), up to (2,991) two thousand nine hundred ninety one
fully-paid and non-assessable shares of common stock, ("Common Stock") of
COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"), (one share
of Common Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of May 6, 2000 between the Company, and
RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise Price
shall be made by certified or official bank check in New York Clearing House
funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
1
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of May 6, 2000
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/S/William J. Bologna
----------------------
Name: William J. Bologna
Title: Chairman and CEO
Attest:/S/ David L. Weinberg
---------------------
Secretary: David L. Weinberg
3
EXHIBIT 4.18
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, May 6, 2005
No. W- 2 Warrants to Purchase
2,991 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Michael J. Kollender, or
registered assigns, is the registered holder of 2,991 Warrants to purchase
initially, at any time from May 6, 2000 until 5:30 p.m. New York time on May 6,
2005 ("Expiration Date"), up to (2,991) two thousand nine hundred ninety one
fully-paid and non-assessable shares of common stock, ("Common Stock") of
COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"), (one share
of Common Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of May 6, 2000 between the Company, and
RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise Price
shall be made by certified or official bank check in New York Clearing House
funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
1
<PAGE>
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of May 6, 2000
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/S/ William J. Bologna
-----------------------
Name: William J. Bologna
Title: Chairman and CEO
Attest:/S/ David L. Weinberg
---------------------
Secretary: David L. Weinberg
3
EXHIBIT 4.19
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, May 6, 2005
No. W- 1 Warrants to Purchase
1,625 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Sharon diStefano, or registered
assigns, is the registered holder of 1,625 Warrants to purchase initially, at
any time from May 6, 2000 until 5:30 p.m. New York time on May 6, 2005
("Expiration Date"), up to (1,625) one thousand six hundred twenty five
fully-paid and non-assessable shares of common stock, ("Common Stock") of
COLUMBIA LABORATORIES, INC., a Delaware corporation (the "Company"), (one share
of Common Stock referred to individually as a "Security" and collectively as the
"Securities") at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $7.0625 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of May 6, 2000 between the Company, and
RYAN, BECK & CO., Inc. (the "Warrant Agreement"). Payment of the Exercise Price
shall be made by certified or official bank check in New York Clearing House
funds payable to the order of the Company or by surrender of this Warrant
Certificate in connection with an election to purchase pursuant to Section 3.2.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
1
<PAGE>
holder(s) (the words "holder" or "holder(s)" meaning the registered holder or
registered holder(s)) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate, which are defined in the
Warrant Agreement, shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of May 6, 2000
COLUMBIA LABORATORIES, INC.
[SEAL]
By:/S/ William J. Bologna
-----------------------
Name: William J. Bologna
Title: Chairman and CEO
Attest:/S/ David L. Weinberg
---------------------
Secretary: David L. Weinberg
3
Exhibit 5
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
(212) 310-8000
May 26, 2000
Board of Directors
Columbia Laboratories, Inc.
2875 Northeast 191 Street, Suite 400
Aventura, Florida 33180
Ladies and Gentlemen:
We have acted as counsel to Columbia Laboratories, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of the Company's Registration Statement
on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended, relating to the sale, from time to time, by certain stockholders of the
Company (the "Selling Stockholders") identified in the prospectus (the
"Prospectus") which forms a part of the Registration Statement, in the manner
described in the Prospectus, of up to an aggregate of 153,933 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), of which
amount 100,000 shares are issuable upon the exercise of certain outstanding
warrants issued by the Company (the "Warrants").
In so acting, we have examined originals or copies (certified or
otherwise identified to our satisfaction) of the Registration Statement, the
Prospectus, the Warrants, and such corporate records, agreements, documents and
other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made such
inquiries of such officers and representatives, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to these opinions that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the shares of Common Stock to be sold by the
Selling Stockholders in the manner described in the Prospectus under the
<PAGE>
captions "Selling Stockholders" and "Plan of Distribution" have been duly
authorized by all requisite corporate action, and 53,933 shares of which have
been validly issued, fully paid for and are non-assessable and 100,000 shares of
which when issued and paid for in accordance with the terms of the instrument or
agreement governing their issuance or sale, will be validly issued, fully paid
and non-assessable.
We hereby consent to the use of this letter as an exhibit to the
Registration Statement and to any and all references to our firm in the
Prospectus which is a part of the Registration Statement.
We also consent to the incorporation by reference of this opinion in
any related registration statement filed by the Company pursuant to Rule 462(b)
of the Securities Act.
Very truly yours,
/S/ WEIL, GOTSHAL & MANGES LLP
Exhibit 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
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As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 13, 1998
included in Columbia Laboratories, Inc.'s Form 10-K for the year ended December
31, 1997 and to all references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
Miami, Florida
May 26, 2000
<PAGE>
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors
Columbia Laboratories, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 of our report dated
February 18, 2000, except for the first paragraph under the caption "Legal
Proceedings" in note 6 as to which the date is March 16, 2000, related to the
consolidated financial statements of Columbia Laboratories, Inc. as of December
31, 1999 and 1998 and for the years then ended which report appears in the
December 31, 1999 annual report on Form 10-K of Columbia Laboratories, Inc. We
also consent to the reference to our Firm under the captions "Experts" in such
Prospectus.
GOLDSTEIN GOLUB KESSLER LLP
New York, New York
May 26, 2000
