UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Columbia Laboratories, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   59-2758596

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

354 Eisenhower Parkway

Livingston, New Jersey

(Address of Principal Executive Offices)

 

 

Amended and Restated 2008 Long-Term Incentive Plan

(Full title of the plan)

 

 

Jonathan Lloyd Jones

Chief Financial Officer

354 Eisenhower Parkway

Livingston, New Jersey 07039

Tel: (973) 994-3999

Copy to:

Aron Izower, Esq.

Jason M. Barr, Esq.

Reed Smith LLP

599 Lexington Avenue, 28 th Floor

New York, New York 10022

Tel: (212) 521-5400; Fax: (212) 521-5450

(Name, address and telephone number (including area code) of agent for service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):

 

Large accelerated filer   ¨    Accelerated filer   x
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities

to be registered

 

Amount

to be

registered(1)(2)

 

Proposed

maximum
offering price

per share(3)

 

Proposed

maximum

aggregate

offering price(3)

  Amount of
registration fee

Common Stock, par value $0.01 per share, issuable under the Amended and Restated 2008 Long-Term Incentive Plan

  4,000,000   $0.6316   $2,526,400   $344.60

 

 

(1) The securities to be registered include 4,000,000 shares of Columbia Laboratories, Inc.’s common stock, par value $0.01 per share (the “Common Stock”), reserved for issuance under the Amended and Restated 2008 Long-Term Incentive Plan (the “Plan”). The Plan has recently been amended to increase the number of shares of Common Stock issuable thereunder. The additional shares of Common Stock issuable under the Plan are being registered by this Registration Statement.
(2) If, as a result of stock splits, stock dividends or similar transactions, the number of securities purported to be registered on this Registration Statement changes, the provisions of Rule 416 shall apply to this Registration Statement, and this Registration Statement shall be deemed to cover the additional securities resulting from the split of, or dividend on, the securities covered by this Registration Statement.
(3) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The offering price per share and aggregate offering price are based upon the average of the high and low prices for the Common Stock as reported on the Nasdaq Capital Market on May 15, 2013, in accordance with Rule 457(c) of the Securities Act.

 

 

 

EXPLANATORY NOTE

This Registration Statement relates solely to the registration of additional securities of the same class as other securities for which a registration statement on this form relating to an employee benefit plan is effective. This Registration Statement is filed for the purpose of registering an additional 4,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”), of Columbia Laboratories, Inc. (the “Company”) pursuant to an employee benefit plan, the Company’s Amended and Restated 2008 Long-Term Incentive Plan (the “Plan”). This registration of 4,000,000 shares of Common Stock will increase the number of shares registered for issuance under the Plan to an aggregate of 10,000,000 shares of Common Stock, subject to adjustment as provided in the Plan. Pursuant to General Instruction E to Form S-8, the contents of the Registration Statement on Form S-8 registering 6,000,000 shares of the Common Stock, filed on June 27, 2008 (Registration Statement 333-152008) is incorporated by reference into this Registration Statement, except as amended hereby. Pursuant to General Instruction E of Form S-8, all information that has been incorporated by reference from the original registration statement is not repeated in this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents, previously filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference into this Registration Statement:

 

  1. Annual Report on Form 10-K for the fiscal year ended December 31, 2012, filed with the Commission on March 13, 2013;

 

  2. Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2013, filed with the Commission on May 9, 2013;

 

  3. Current Reports on Form 8-K filed with the Commission on January 16, 2013, March 6, 2013, April 9, 2013, April 24, 2013, May 2, 2013 and May 3, 2013; and

 

  4. The description of Common Stock, which was included in the Company’s registration statement on Form 8-A, filed with the Commission on February 12, 2004.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information, unless otherwise indicated therein) prior to the filing of a post-effective amendment which indicates that all securities registered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement.

 

Item 8. Exhibits.

 

 

Exhibit
Number

  

Description of Document

  4.1    Restated Certificate of Incorporation of the Company, as amended (incorporated by reference to Exhibit 3.1 of Form 10-K filed with the Commission on March 13, 2006)
  4.1.1    Certificate of Amendment of the Restated Certificate of Incorporation of the Company, dated as of July 1, 2010 (incorporated by reference to Exhibit 3.1 of Form 8-K filed with the Commission on July 6, 2010)
  4.1.2    Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of the Company, dated as of January 7, 1999 (incorporated by reference to Exhibit 4.1 of Form 10-K filed with the Commission on March 25, 1999)
  4.1.3    Certificate of Designations of Series E Convertible Preferred Stock, filed May 10, 2005 with the Delaware Secretary of State (incorporated by reference to Exhibit 4.1 of Form 8-K filed with the Commission on May 12, 2005)
  4.2    Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.1 of Form 8-K filed with the Commission on July 20, 2011)
  4.3    Amended and Restated 2008 Long-Term Incentive Plan (incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission on March 22, 2013)
  4.4    Form of Stock Award Agreement under the Amended and Restated 2008 Long-Term Incentive Plan
  5.1    Opinion of Reed Smith LLP
23.1    Consent of BDO USA, LLP
23.2    Consent of Reed Smith LLP (included in Exhibit 5.1)
24.1    Power of Attorney (included on signature page hereto)

SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Livingston, State of New Jersey, on May 16, 2013.

 

Columbia Laboratories, Inc.,
a Delaware corporation

/s/ Frank C. Condella, Jr.

By:   Frank C. Condella, Jr.
  President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, Frank C. Condella, Jr. and Jonathan B. Lloyd Jones and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post- effective amendments, to this Registration Statement, and any registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462(b) under the Securities Act, and to file the same, with exhibits thereto and other documents in connection therewith, with the 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute 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 by the following persons in the capacities and on the dates indicated:

 

Principal Executive Officer:     Principal Financial and Accounting Officer:

/s/ Frank C. Condella, Jr.

   

/s/ Jonathan B. Lloyd Jones

Frank C. Condella, Jr.     Jonathan B. Lloyd Jones
President and Chief Executive Officer     Vice President, Chief Financial Officer and Treasurer
Dated: May 16, 2013     Dated: May 16, 2013
Directors:    

/s/ Frank C. Condella, Jr.

   

/s/ Valerie L. Andrews

Frank C. Condella, Jr.     Valerie L. Andrews
Dated: May 16, 2013     Dated: May 16, 2013

/s/ Edward A. Blechschmidt

   

 

Edward A. Blechschmidt     Cristina Csimma
Dated: May 16, 2013    

/s/ Stephen G. Kasnet

   

 

Stephen G. Kasnet     G. Frederick Wilkinson
Dated: May 16, 2013    

INDEX TO EXHIBITS

 

Exhibit
No.

  

Description of Exhibit

Number    Description of Document
  4.1    Restated Certificate of Incorporation of the Company, as amended (incorporated by reference to Exhibit 3.1 of Form 10-K filed with the Commission on March 13, 2006)
  4.1.1    Certificate of Amendment of the Restated Certificate of Incorporation of the Company, dated as of July 1, 2010 (incorporated by reference to Exhibit 3.1 of Form 8-K filed with the Commission on July 6, 2010)
  4.1.2    Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of the Company, dated as of January 7, 1999 (incorporated by reference to Exhibit 4.1 of Form 10-K filed with the Commission on March 25, 1999)
  4.1.3    Certificate of Designations of Series E Convertible Preferred Stock, filed May 10, 2005 with the Delaware Secretary of State (incorporated by reference to Exhibit 4.1 of Form 8-K filed with the Commission on May 12, 2005)
  4.2    Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.1 of Form 8-K filed with the Commission on July 20, 2011)
  4.3    Amended and Restated 2008 Long-Term Incentive Plan (incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission on March 22, 2013)
  4.4    Form of Stock Award Agreement under the Amended and Restated 2008 Long-Term Incentive Plan
  5.1    Opinion of Reed Smith LLP
23.1    Consent of BDO USA, LLP
23.2    Consent of Reed Smith LLP (included in Exhibit 5.1)
24.1    Power of Attorney (included on signature page hereto)

Exhibit 4.4

FORM OF

AWARD AGREEMENT

COLUMBIA LABORATORIES, INC.

AMENDED AND RESTATED 2008 LONG-TERM INCENTIVE PLAN

This Award Agreement sets forth the terms and conditions of shares of Stock granted pursuant to the provisions of the Amended and Restated 2008 Long-term Incentive Plan (the “ Plan ”) of Columbia Laboratories, Inc. (the “ Company ”) to the Participant whose name appears below, for the number of Shares of Stock of the Company set forth below, pursuant to the provisions of the Plan and on the following express terms and conditions. Capitalized terms not otherwise defined herein shall have the same meanings as set forth in the Plan.

 

1. Name and address of Participant to whom the Shares are granted:

[NAME]

[ADDRESS]

 

2. Number of Shares of Common Stock (“Shares”):

[# SHARES]

 

3. Purchase price of Shares:

[            ]

 

4. Date of grant of the Shares:

[            ]

 

5. Vesting.

 

  5.1 Vesting Schedule . Except as otherwise provided in Section 5.2, the Shares shall vest pursuant to Schedule 1, attached hereto. Upon any termination of service of the Participant to the Company, vesting of the Shares shall immediately cease and any unvested Shares will automatically be canceled.

 

  5.2 Death of the Participant . If, at any time before the Shares granted hereunder shall have vested as provided in Section 5.1, the Participant shall die while an employee or director of the Company or an Affiliate, the Shares immediately shall vest.

 

  5.3

Agreement with respect to Tax Payments and Withholding . The Participant acknowledges and agrees that any income or other taxes due from the Participant with respect to the Shares issued pursuant to this Restricted Stock Award, including on account of the vesting of the Shares, shall be the Participant’s

  responsibility. By accepting this Restricted Stock Award, the Participant agrees and acknowledges that (i) the Company promptly will withhold from the Participant’s pay the amount of taxes the Company is required to withhold upon any vesting of Shares pursuant to this Restricted Stock Award, and (ii) the Participant shall make immediate payment to the Company in the amount of any tax required to be withheld by the Company in excess of the Participant’s pay available for such withholding. The Participant may elect to have such withholding satisfied by a reduction of the number of shares otherwise so deliverable (a “ Stock Withholding Election ”), or by delivery of shares of Stock already owned by the Participant, with the amount of shares subject to such reduction or delivery to be calculated based on the Fair Market Value on the date of such taxable event.

 

6. Restrictions on Transfer . The Shares may not be sold, transferred, assigned, hypothecated, pledged, encumbered or otherwise disposed of, whether voluntarily or by operation of law, at any time before they become vested Shares pursuant to Section 5. Any such purported transfer shall be null and void, and shall not be recognized by the Company or recorded on its books.

 

7. Escrow . Any Shares that have not vested pursuant to Section 5, together with any securities distributed in respect thereof, such as through a stock split or other recapitalization, shall be held by the Company in escrow until such Shares shall have vested. The Company promptly shall release vested Shares from escrow.

 

8. Plan . The Participant hereby acknowledges receipt of a copy of the Plan as presently in effect and the Prospectus with respect thereto. All of the terms and provisions of the Plan are incorporated herein by reference, and this Restricted Stock Award is subject to those terms and provisions in all respects.

 

Participant     Columbia Laboratories, Inc.
By:     By:
Date:     Date:

Schedule 1

The Shares shall vest [            ].

Exhibit 5.1

Reed Smith LLP

599 Lexington Avenue

New York, NY 10022-7650

+1 212 521 5400

Fax +1 212 521 5450

reedsmith.com

May 16, 2013

Columbia Laboratories, Inc.

354 Eisenhower Parkway

Plaza 1, Second Floor

Livingston, New Jersey 07039

Ladies and Gentlemen:

We have acted as counsel for Columbia Laboratories, Inc., a Delaware corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 4,000,000 shares of common stock, par value $0.01 per share, of the Company (the “Shares”) issuable under the Company’s Amended and Restated 2008 Long Term Incentive Plan (the “Plan”) pursuant to the registration statement on Form S-8 filed by the Company on May 15, 2013 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the prospectus forming a part thereof, other than as to the issue of the Shares.

In connection with the foregoing, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials, and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. As to questions of fact material to this opinion that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company.

Based upon the foregoing, we are of the opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company against payment therefor in the circumstances contemplated by the Plan, and assuming in each case that the individual issuances, grants or awards under the Plan are duly authorized by all necessary corporate action of the Company and duly issued, granted or awarded and exercised in accordance with the requirements of law and the Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company and the Shares will be validly issued, fully paid and non-assessable.

Our opinion is based (i) as to matters of law solely on applicable provisions of the laws of the state of Delaware, and we express no opinions as to any other laws, statutes, ordinances rules, or regulations and (ii) on such corporate records as we deemed necessary or appropriate.

NEW YORK ¿ LONDON ¿ HONG KONG ¿ CHICAGO ¿ WASHINGTON, D.C. ¿ BEIJING ¿ PARIS ¿ LOS ANGELES ¿ SAN FRANCISCO ¿ PHILADELPHIA ¿ SHANGHAI ¿ PITTSBURGH ¿ HOUSTON ¿ SINGAPORE ¿ MUNICH ¿ ABU DHABI ¿ PRINCETON ¿ NORTHERN VIRGINIA ¿ WILMINGTON ¿ SILICON VALLEY ¿ DUBAI ¿ CENTURY CITY ¿ RICHMOND ¿ GREECE ¿ KAZAKHSTAN

   LOGO

May 16, 2013

Page 2

  

 

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

Very truly yours,
/S/ REED SMITH LLP
HK:AI:JB
Legal OP

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

Columbia Laboratories, Inc.

Livingston, NJ

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Columbia Laboratories, Inc. of our reports dated March 13, 2013, relating to the consolidated financial statements, the effectiveness of Columbia Laboratories, Inc. internal control over financial reporting, and schedule of Columbia Laboratories, Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2012.

/s/ BDO USA, LLP

BDO USA, LLP

Boston, MA

May 16, 2013