Exhibit 1.1
January 31, 2001
Xxxxxxxx Investment Limited
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx
P.O. Box N 9204
Nassau, Bahamas
Dear Sirs:
This letter sets forth the agreement of Xxxxxxxx Investment Limited
(the "Purchaser") and Columbia Laboratories, Inc. (the "Company") regarding the
purchase by the Purchaser from the Company of the Company's common stock, par
value $.01 per share (the "Common Stock") on the date hereof. The parties agree
as follows:
1. This Agreement relates to the purchase by the Purchaser of 288,462 shares of
the Company's Common Stock (the "Shares") for an aggregate purchase price of
$1,500,000, which purchase is being settled by the parties on the date hereof.
2. The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware. The Company has the requisite corporate
power and authority to enter into and perform this Agreement and to issue and
sell the Shares in accordance with the terms hereof. The execution, delivery and
performance of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action. A copy of the duly executed resolutions of the Board
of Directors of the Company is attached hereto as Exhibit "B". This Agreement
has been duly executed and delivered on behalf of the Company by a duly
authorized officer. This Agreement constitutes, or shall constitute when
executed and delivered by both parties, a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of creditors'
rights and remedies or by other equitable principles of general application.
3. The Shares to be issued under this Agreement have been duly authorized by all
necessary corporate action and, when paid for and issued in accordance with the
terms hereof, the Shares shall be validly issued and outstanding, fully paid and
nonassessable, and the Purchaser shall be entitled to all rights accorded to a
holder of the Common Stock.
4. The Company represents and warrants that (a) the Shares issued by the Company
to the Purchaser have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a registration statement on Form
S-3, Commission File Number 333-38230 (the "Registration Statement"); and (b)
the Company has filed a prospectus supplement to the Registration Statement (the
"Prospectus Supplement") in connection with the transaction contemplated by this
agreement. A copy of the Prospectus Supplement to be filed with the Securities
and Exchange Commission, is annexed hereto as Exhibit "C".
5. The Company has taken all action necessary on its part to list the Shares for
trading on the American Stock Exchange.
6. The Company will continue to take all action necessary to continue the
listing or trading of its Common Stock on the American Stock Exchange or any
relevant market or system, if applicable, and will comply in all material
respects with the Company's reporting, listing (including, without limitation,
the listing of the Shares purchased by the Purchaser) or other obligations under
the rules of the American Stock Exchange or any relevant market or system.
7. The Company has made available to the Purchaser true and complete copies of
the filings filed with the Securities and Exchange Commission (the "Commission")
since March 31, 2000 (collectively, the "Commission Filings"). The Company has
not provided to the Purchaser any information which, according to applicable
law, rule or regulation, should have been disclosed publicly by the Company but
which has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement. As of their respective dates, each of the
Commission Filings complied in all material respects with the requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission promulgated thereunder, and, as of their
respective dates, none of the Commission Filings referred to above contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the Commission Filings comply as
to form in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules and
regulations with respect thereto. No event or circumstance has occurred or
exists with respect to the Company or its subsidiaries or their respective
businesses, properties, prospects, operations or financial condition, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
8. The Company will promptly notify the Purchaser of (a) its receipt of notice
of the issuance by the Commission of any stop order or other suspension of the
effectiveness of the Registration Statement and (b) its becoming aware of the
happening of any event as a result of which the prospectus included in the
Registration Statement includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein, or which makes it
necessary to change the Registration Statement in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
9. The Company may not issue a press release or otherwise make a public
statement or announcement with respect to the completion of the transaction
contemplated hereby without the prior consent of the Purchaser. Notwithstanding
the foregoing, in the event the Company is required by law or regulation to
issue such a press release or to make such a public statement or announcement,
the Company shall consult the Purchaser on the form and substance of such press
release, public statement or announcement.
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10. The parties hereto will indemnify each other as provided in Exhibit "A"
attached hereto against liability with respect to the Registration Statement
(including, without limitation, the Prospectus Supplement) relating to the
Shares which were sold by the Company to the Purchaser. For purposes of said
Exhibit A, capitalized terms used therein without definition shall have the same
meanings therein as are ascribed to said terms in this Agreement.
11. This Agreement and the legal relations between the parties hereto with
respect to any purchase of Common Stock by the Purchaser hereunder shall be
governed and construed in accordance with the substantive laws of the State of
New York without giving effect to the conflicts of law principles thereunder.
12. The Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of the Commonwealth of the Bahamas.
The Purchaser has the requisite corporate power and authority to enter into and
perform this Agreement and to purchase the Shares in accordance with the terms
hereof. The execution, delivery and performance of this Agreement by the
Purchaser and the consummation by it of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered on behalf of the Purchaser by a
duly authorized officer. This Agreement constitutes, or shall constitute when
executed and delivered on behalf of the Purchaser by a duly authorized officer.
This Agreement constitutes, or shall constitute when executed and delivered by
both parties, a valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally, the enforcement of creditors'
rights and remedies or by other principles or general application.
13. The Purchaser represents and warrants that all information contained in the
written materials furnished by the Purchaser to the Company for use in the
Registration Statement and the prospectus included in the Registration
Statement, as supplemented by a Prospectus Supplement, is true and correct in
all material respects.
Delivery of an executed copy of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the original.
Please execute a copy of this letter which, when executed by the Purchaser, will
constitute an Agreement between the Company and the Purchaser.
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Very truly yours,
COLUMBIA LABORATORIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice Chairman and President
AGREED TO:
PURCHASER:
XXXXXXXX INVESTMENT LIMITED
By: /s/ Xxxxxxx X. XxXxx
-----------------------
Name: Xxxxxxx X. XxXxx
Title: Director
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EXHIBIT 'A'
TERMS OF INDEMNIFICATION
1. General Indemnity.
(a) Indemnification by the Company. The Company will indemnify and hold
harmless the Purchaser, each of its directors, fund managers and officers, and
each person, if any, who controls the Purchaser within the meaning of Section 15
of the Securities Act of 1933, as amended (the "Securities Act"), or Section
20(a) of the Securities Exchange Act, as amended (the "Exchange Act"), from and
against any losses, claims, damages, liabilities and expenses (including
reasonable costs of defense and investigation and all reasonable attorneys'
fees) to which the Purchaser, each of its directors, fund managers and officers,
and each person, if any, who controls the Purchaser may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of or are
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained, or incorporated by reference, in the Registration Statement
relating to the Common Stock being sold to the Purchaser (including any
Prospectus Supplement filed in connection with the transactions contemplated
hereunder which are a part of it), or any amendment or supplement to it, or (ii)
the omission or alleged omission to state in that Registration Statement or any
document incorporated by reference in the Registration Statement, a material
fact required to be stated therein or necessary to make the statements therein
not misleading, provided that the Company shall not be liable under this Section
1(a) to the extent that a court of competent jurisdiction shall have determined
by a final judgment (with no appeals available) that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act,
undertaken or omitted to be taken by the Purchaser or such person through its
bad faith or willful misconduct; provided, however, that the foregoing indemnity
shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by the
Purchaser expressly for use in the Registration Statement, any preliminary
prospectus or the prospectus (or any amendment or supplement thereto); and
provided, further, that with respect to the prospectus, the foregoing indemnity
shall not inure to the benefit of the Purchaser or any such person from whom the
person asserting any loss, claim, damage, liability or expense purchased Common
Stock, if copies of the prospectus were timely delivered to the Purchaser
pursuant hereto and a copy of the prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of the Purchaser or any such person to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Common Stock to such person, and if the
prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or expense.
(b) The Company will reimburse the Purchaser and each such controlling
person promptly upon demand for any legal or other costs or expenses reasonably
incurred by the Purchaser or any controlling person in investigating, defending
against, or preparing to defend against any such claim, action, suit or
proceeding, except that the Company will not be liable to the extent a claim or
action which results in a loss, claim, damage, liability or expense arises out
of, or is based upon, an untrue statement, alleged untrue statement, omission or
alleged omission, included in any Registration Statement, prospectus or
Prospectus Supplement or any amendment or supplement to the thereto in reliance
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upon, and in conformity with, written information furnished by the Purchaser to
the Company for inclusion in the Registration Statement, prospectus or
Prospectus Supplement.
(c) Indemnification by the Purchaser. The Purchaser will indemnify and
hold harmless the Company, each of its directors and officers, and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act from and against any losses,
claims, damages, liabilities and expenses (including reasonable costs of defense
and investigation and all attorneys' fees) to which the Company and each
director, officer and person, if any, who controls the Company may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities and expenses (or actions in respect thereof) arise out of
or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any prospectus or
Prospectus Supplement or any amendment or supplement to it or (ii) the omission
or alleged omission to state in the Registration Statement or any prospectus or
Prospectus Supplement or any amendment or supplement to it a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, the untrue statement, alleged
untrue statement, omission or alleged omission was made in reliance upon, and in
conformity with, written information furnished by the Purchaser to the Company
for inclusion in the Registration Statement, the prospectus or Prospectus
Supplement or an amendment or supplement thereto, and the Purchaser will
reimburse the Company and each such director, officer or controlling person
promptly upon demand for any legal or other costs or expenses reasonably
incurred by the Company or the other person in investigating, defending against,
or preparing to defend against any such claim, action, suit or proceeding.
2. Indemnification Procedures.
--------------------------
Promptly after a person receives notice of a claim or the commencement of an
action for which the person intends to seek indemnification under paragraph (a)
or (b) of Section 1, the person will notify the indemnifying party in writing of
the claim or commencement of the action, suit or proceeding, but failure to
notify the indemnifying party will not relieve the indemnifying party from
liability under paragraph (a) or (b) of Section 1, except to the extent such
indemnifying party has been materially prejudiced by the failure to give notice.
The indemnifying party will be entitled to participate in the defense of any
claim, action, suit or proceeding as to which indemnification is being sought,
and if the indemnifying party acknowledges in writing the obligation to
indemnify the party against whom the claim or action is brought, the
indemnifying party may (but will not be required to) assume the defense against
the claim, action, suit or proceeding with counsel satisfactory to it. After an
indemnifying party notifies an indemnified party that the indemnifying party
wishes to assume the defense of a claim, action, suit or proceeding the
indemnifying party will not be liable for any legal or other expenses incurred
by the indemnified party in connection with the defense against the claim,
action, suit or proceeding except that if, in the opinion of counsel to the
indemnifying party, one or more of the indemnified parties should be separately
represented in connection with a claim, action, suit or proceeding the
indemnifying party will pay the reasonable fees and expenses of one separate
counsel for the indemnified parties. Each indemnified party, as a condition to
receiving indemnification as provided in paragraph (a) or (b) of Section 1, will
cooperate in all reasonable respects with the indemnifying party in the defense
of any action or claim as to which indemnification is sought. No indemnifying
party will be liable for any settlement of any action effected without its prior
written consent. No indemnifying party will, without the prior written consent
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of the indemnified party, effect any settlement of a pending or threatened
action with respect to which an indemnified party is, or is informed that it may
be, made a party and for which it would be entitled to indemnification, unless
the settlement includes an unconditional release of the indemnified party from
all liability and claims which are the subject matter of the pending or
threatened action.
If for any reason the indemnification provided for in this agreement is not
available to, or is not sufficient to hold harmless, an indemnified party in
respect of any loss or liability referred to in paragraph (a) or (b) of Section
1, each indemnifying party will, in lieu of indemnifying the indemnified party,
contribute to the amount paid or payable by the indemnified party as a result of
the loss or liability, (i) in the proportion which is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and by the
indemnified party on the other from the sale of stock which is the subject of
the claim, action, suit or proceeding which resulted in the loss or liability or
(ii) if that allocation is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits of the sale of
stock, but also the relative fault of the indemnifying party and the indemnified
party with respect to the statements or omissions which are the subject of the
claim, action, suit or proceeding that resulted in the loss or liability, as
well as any other relevant equitable considerations.
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