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As filed with the Securities and Exchange Commission on May 22, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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The Cooper Companies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 6140 Stoneridge Mall Road, Suite 590 94-2657368
(State or Other Pleasanton, California 94588 (I.R.S. Employer
Jurisdiction of (510) 460-3600 Identification Number)
Incorporation or
Organization) (Address, including ZIP code, and
telephone number, including area code,
of registrant's principal executive offices)
CAROL R. KAUFMAN
Vice President of Legal Affairs, Secretary
and Chief Administrative Officer
The Cooper Companies, Inc.
6140 Stoneridge Mall Road, Suite 590
Pleasanton, California 94588
(510) 460-3600
(Name, address, including ZIP code, and telephone number, including
area code, of agent for service)
---------------
Copies to:
TRACY K. EDMONSON, ESQ.
LAURA L. GABRIEL, ESQ.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
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Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of 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, other than securities offered only in connection with dividend or
interest reinvestment plans, 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 the following box
and list the Securities Act registration statement 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. [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of each class of Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered Per Unit (1) Price (1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock ($0.01 par value) 144,800 $20.8125 $3,013,650 $914
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Preferred Stock Purchase Rights (2) 434,400 Not applicable (2) $100
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(1) Estimated solely for the purpose of computing the amount of registration
fee, based on the average of the high and low prices for the Common Stock
as reported on the New York Stock Exchange, Inc. on May 16, 1997, in
accordance with Rule 457(c) promulgated under the Securities Act of 1933.
(2) Rights to acquire shares of the Registrant's Series A Junior Participating
Preferred Stock are attached to and trade with the Common Stock of the
Registrant. Value attributable to such Rights, if any, is reflected in the
market price of the Common Stock. Fee paid represents the minimum statutory
fee pursuant to Section 6(b) of the Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED May 22, 1997
THE COOPER COMPANIES, INC.
144,800 Shares of Common Stock
($.10 Par Value Per Share)
This Prospectus relates to up to 144,800 shares (the "Shares") of common
stock, par value $.10 per share (the "Common Stock"), of The Cooper Companies,
Inc., a Delaware corporation (the "Company"), and the Rights ("Rights") to
acquire the Company's Series A Junior Participating Preferred Stock that are
attached to and trade with the Common Stock, which may be offered for sale by
certain stockholders of the Company (the "Selling Stockholders"). The Common
Stock and the Rights are herein collectively referred to as the "Securities".
Such sales may be effected from time to time by the Selling Stockholders
directly or through one or more broker-dealers, in one or more transactions on
the New York Stock Exchange (the "NYSE") or the Pacific Stock Exchange (the
"PSE") pursuant to and in accordance with the rules of such exchanges, in the
over-the-counter market, in negotiated transactions or otherwise, at prices
related to the prevailing market prices or at negotiated prices. See "Plan of
Distribution."
The Company will not receive any of the proceeds from the sale of the
Securities. The Company will bear all expenses of the offering of the
Securities, except that the Selling Stockholders will pay any applicable
underwriting fees, discounts or commissions and transfer taxes, as well as the
fees and disbursements of counsel to and experts for the Selling Stockholders.
The Common Stock is listed on the NYSE and the PSE. On May 21, 1997 the
last reported sale price for the Common Stock of the Company as reported on the
NYSE Composite Tape was $21 1/8 per share.
-----------------
See "Risk Factors" commencing on page 4 for a discussion of certain
factors that should be considered by prospective purchasers of the Securities
offered hereby.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE
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The date of this Prospectus is , 1997
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy, nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (including all amendments
thereto, the "Registration Statement") with respect to the Securities. As
permitted by the rules and regulations of the Commission, this Prospectus does
not contain all of the information set forth in the Registration Statement and
the exhibits and schedules thereto. For further information about the Company
and the Securities, please refer to the Registration Statement and the exhibits
thereto, which may be examined without charge at the public reference facilities
maintained by the Commission at Room 1204, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and copies of which may be obtained from the
Commission upon payment of the prescribed fees. Statements contained in this
Prospectus as to the contents of any agreement or other document referred to
herein or therein are qualified by reference to the copy of such agreement or
other document filed as an exhibit to the Registration Statement or such other
document, each such statement being qualified in all respects by such reference.
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The Registration Statement, the exhibits and schedules forming a
part thereof and the reports, proxy statements and other information filed by
the Company with the Commission in accordance with the Exchange Act can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1204, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and 7
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a web site that contains reports, proxy and information
statements and other information regarding registrants who file with the
Commission and certain of the Company's filings are available at such web site:
http://www.sec.gov. In addition, the Common Stock is listed on the NYSE and the
PSE and such information can be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005 and the PSE, 301 Pine Street, San Francisco,
California 94104.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company under the Exchange Act with
the Commission are incorporated herein by reference.
(a) Annual Report on Form 10-K for the fiscal year ended October 31, 1996
(the "1996 10-K");
(b) The portions of the Company's 1996 Annual Report to Stockholders that
have been incorporated by reference into the 1996 10-K;
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(c) The portions of the Company's Proxy Statement for its Annual Meeting
of Stockholders held March 25, 1997 that have been incorporated by
reference into the 1996 10-K;
(d) Quarterly Report on Form 10-Q for the quarter ended January 31, 1997;
(e) Current Reports on Forms 8-K dated January 10, 1997, January 30, 1997,
February 10, 1997, February 25, 1997, March 18, 1997, March 26, 1997,
April 7, 1997 and May 21, 1997; and
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on October 28, 1983
and the description of the Company's Rights contained in the Company's
Registration Statement on Form 8-A filed on November 12, 1987.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a 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 Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
A copy of any or all of the documents incorporated or deemed to be
incorporated herein by reference (other than exhibits to such documents which
are not specifically incorporated by reference therein) will be provided without
charge to any person to whom a copy of this Prospectus is delivered, upon
written or oral request. Copies of this Prospectus, as amended or supplemented
from time to time, and any other documents (or parts of documents) that
constitute part of this Prospectus under Section 10(a) of the Securities Act of
1933, as amended (the "Securities Act"), will also be provided without charge to
each such person, upon written or oral request. Requests for such copies should
be addressed to the Vice President of Legal Affairs of the Company, 6140
Stoneridge Mall Road, Suite 590, Pleasanton, California 94588 (telephone number:
(510) 460-3600).
FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference herein
contain projections and other forward-looking statements within the meanings of
Section 27A of the Securities Act and Section 21E of the Exchange Act, which
statements involve risks and uncertainties. Actual results could differ
materially from these projections as a result of certain factors, including
major changes in business conditions and the economy in general, loss of key
members of senior management, new competitive inroads, costs to integrate
acquisitions, dilution to earnings and earnings per share associated with
acquisitions and stock issuances, decisions to invest in research and
development projects, regulatory issues, unexpected changes in reimbursement
rates and
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payer mix, unforeseen litigation, costs associated with potential debt
restructuring, decisions to divest businesses and the cost of acquisition
activity, particularly if a large acquisition is not completed. Future results
are also dependent on each business unit meeting specific objectives.
THE COMPANY
The Company, through its primary subsidiaries (CooperVision, Inc.,
CooperSurgical, Inc. ("CooperSurgical") and Hospital Group of America, Inc.),
develops, manufactures and markets healthcare products, including a range of
contact lenses and diagnostic and surgical instruments, equipment and
accessories, and provides healthcare services through the ownership and
operation of certain psychiatric facilities. The principal executive offices of
the Company are located at 6140 Stoneridge Mall Road, Suite 590, Pleasanton,
California 94588, (510) 460-3600.
RISK FACTORS
Price Volatility and Shares Available for Future Sale
The market price of the Common Stock may be subject to significant
fluctuations in response to, among other things, the factors discussed above
under "Forward-Looking Statements," variations in quarterly operating results,
failure to meet published estimates of, or changes in earnings estimates by, the
Company or securities analysts, and other factors. In addition, the securities
markets have experienced significant price and volume fluctuations from time to
time in recent years that have often been unrelated or disproportionate to the
operating performance of particular companies. These broad fluctuations could
affect the market price of the Common Stock.
The Company has outstanding options to purchase approximately 770,000
shares of Common Stock, approximately 480,000 of which are currently
exercisable. If these options are exercised, the issuance of such shares of
Common Stock would dilute the proportionate voting power and equity interests of
the other holders of Common Stock. In addition, sales of substantial amounts of
Common Stock, including the sale by the Company of all or a substantial portion
of the shares of Common Stock registered hereunder, or the sale by Cooper Life
Sciences ("CLS") of all or a substantial portion of the approximately 1,400,000
shares of Common Stock it beneficially owns (which are registered for resale on
a registration statement under the Securities Act), or the perception that such
sales could occur, could adversely affect prevailing market prices for the
Common Stock.
Significant Stockholder
CLS currently owns approximately 12% of the Company's issued and
outstanding shares of Common Stock. In addition, pursuant to a settlement
agreement with the Company entered into on June 14, 1993, CLS has the right to
designate two of the eight members of the Company's Board of Directors so long
as CLS owns at least 800,000 shares of Common Stock, and one director so long as
CLS owns at least 333,333 shares of Common Stock. A third member of the
Company's Board of Directors, Moses Marx, owns a majority of the outstanding
stock of CLS. By virtue of their representation on the Company's Board of
Directors and CLS'
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significant ownership of Common Stock, CLS and Mr. Marx may have significant
influence over the affairs of the Company.
THE SELLING STOCKHOLDERS
The Securities to be offered under this Prospectus are owned by the
Selling Stockholders listed in the table below. The Selling Stockholders
acquired the Securities in connection with the merger of Marlow Surgical
Technologies, Inc., an Ohio corporation ("Marlow"), with and into Marlow
Acquisition Corp., a Delaware corporation and wholly owned subsidiary of the
Company ("Acquisition Sub"), pursuant to the terms of an Agreement and Plan of
Merger dated as of April 3, 1997, among the Company, Acquisition Sub, Marlow and
certain shareholders of Marlow (the "Merger Agreement"). Pursuant to the terms
of the Merger Agreement, the Company agreed to file a registration statement
covering the Securities with the Commission.
Because the Selling Stockholders may sell all or some portion of the
Securities covered by this Prospectus, no estimate can be given as to the number
of Shares, and the percentage of outstanding shares of Common Stock, that will
be held by any of them after any particular sale.
The following table identifies each Selling Stockholder and sets forth
information as of May 22, 1997 with respect to the Shares held and to be offered
under this Prospectus from time to time by each Selling Stockholder. Clifford A.
Marlow, Scott C. Marlow and Mike Lanese are an Executive Vice President, the
Director of Product Development and a sales representative, respectively, of
CooperSurgical.
Selling Stockholder Number of Shares
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Clifford A. Marlow 75,221
Scott C. Marlow 28,398
Richard L. Hart 5,208
Stanley Pollack 19,760
James F. Daniell 732
Marcus Tower 4,395
H. M. Hasson, M.D. 732
L&G Enterprises, 732
a Kentucky Corp.
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Selling Stockholder Number of Shares
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Robert E. Stone, M.D. 732
Betsy Anne Pollack 293
Catherine Ann Pollack 293
Kurt Allen Marlow 440
Kevin Patrick Marlow 440
Kasey Hart Marlow 440
Shakuntala Rao 1,171
Dinkar Rao as Custodian for 292
Seema Rao Under the Uniform
Gifts to Minors Act
Jacklyn Elizabeth Marlow 293
Marcus E. Tower and 293
Deborah R. Tower as
Custodians for Katherine
Tower Under the Uniform Gifts
to Minors Act
Marcus E. Tower and 293
Deborah R. Tower as
Custodians for M. Ryan Tower
Under the Uniform Gifts to
Minors Act
Marcus E. Tower and 293
Deborah R. Tower as
Custodians for Colin Edward
Tower
Dinkar Rao 284
Mike Lanese 203
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Selling Stockholder Number of Shares
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Art Goddard 203
Mark Curtis 813
Gerald Greene 813
Michael Naughton 2,033
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144,800
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PLAN OF DISTRIBUTION
The Securities are being sold by the Selling Stockholders for their own
account, and the Company will not receive any of the proceeds from the sale of
the Securities.
The distribution of the Securities by the Selling Stockholders may be
effected from time to time by the Selling Stockholders directly or through one
or more brokers, agents, or dealers in one or more transactions (which may
involve crosses and block transactions) on the NYSE, the PSE or other exchanges
on which the Common Stock is listed, pursuant to and in accordance with the
rules of such exchanges, in the over-the-counter market, in negotiated
transactions or otherwise, at prices related to prevailing market prices or at
negotiated prices. In the event that one or more brokers, agents or dealers
agree to sell the Securities, they may do so by purchasing Securities as
principals or by selling Securities as agents for a Selling Stockholder. Any
such brokers, agents or dealers who effect a sale of the Securities may be
deemed to be "underwriters" within the meaning of the Securities Act. Any such
broker, agent or dealer (i) may receive compensation from the Selling
Stockholders which may be deemed to be underwriting discounts or commissions and
(ii) may receive commissions from purchasers of the Securities for whom it may
act as agent. If any such broker or dealer purchases the Securities as principal
it may effect resales of the Securities from time to time to or through other
brokers or dealers, and such other brokers or dealers may receive compensation
in the form of concessions or commissions from the Selling Stockholder or
purchaser of the Securities for whom they may act as agents.
The Company has advised each of the Selling Stockholders that it and any
such brokers, dealers or agents who effect a sale of the Securities are subject
to the prospectus delivery requirements of the Securities Act. The Company also
has advised each of the Selling Stockholders that in the event of a
"distribution" of its Securities, such Selling Stockholder and any broker, agent
or dealer who participates in such distribution may be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including without limitation Rule 10b-6.
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In connection with distributions of the Securities, the Selling
Stockholders may enter into hedging transactions with broker-dealers, and the
broker-dealers may engage in short sales of the Common Stock in the course of
hedging the positions they assume with the Selling Stockholders. The Selling
Stockholders also may sell the Common Stock short and deliver the Securities to
close out such short positions. The Selling Stockholders also may enter into
option or other transactions with broker-dealers that involve the delivery of
the Securities to the broker-dealers, who may then resell or otherwise transfer
such Securities. The Selling Stockholders also may loan or pledge the Securities
to a broker-dealer and the broker-dealer may sell the Securities so loaned or
upon a default may sell or otherwise transfer the pledged Securities.
The Company will bear all expenses of the offering of the Securities,
except that the Selling Stockholders will pay any applicable underwriting fees,
discounts or commissions and transfer taxes, as well as the fees and
disbursements of counsel to and experts for the Selling Stockholders.
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LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon for
the Company by Latham & Watkins, San Francisco, California.
EXPERTS
The consolidated financial statements and schedule of The Cooper
Companies, Inc. and subsidiaries, the consolidated financial statements and
schedule of Hospital Group of America, Inc. and subsidiaries and the financial
statements and schedule of CooperSurgical, Inc. as of October 31, 1996 and 1995
and for each of the years in the three-year period ended October 31, 1996, have
been incorporated by reference herein and in the registration statement in
reliance upon the reports of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
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============================== ==============================
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations not contained or incorporated by
reference in this Prospectus in connection with the offering herein contained,
and, if given or made, such information or representations must not be relied
upon as having been authorized by the Company or the Selling Stockholders. This
Prospectus does not constitute an offer to sell, or a solicitation of an offer
to buy, the securities offered hereby in any jurisdiction where, or to any
person to whom, it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereafter shall, under any
circumstances, create any implications that the information contained herein is
correct as of any date subsequent to the date hereof.
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TABLE OF CONTENTS
Page
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Available Information......... 2
Incorporation of Certain
Information by Reference 2
Forward-Looking Statements.... 3
The Company................... 4
Risk Factors.................. 4
The Selling Stockholders...... 5
Plan of Distribution.......... 7
Legal Matters................. 9
Experts....................... 9
144,800 SHARES
THE COOPER COMPANIES, INC.
COMMON STOCK
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PROSPECTUS
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____________, 1997
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses relating to the registration of the Securities will be
borne by the Company. Such expenses are set forth in the table below. All
amounts are estimates except the Securities Act registration fee.
Securities Act Registration Fee ..................................... $1,014
Accounting Fees and Expenses ........................................ 3,500
Legal Fees and Expenses (other than Blue Sky) ....................... 10,500
Blue Sky Fees and Expenses .......................................... 2,000
Miscellaneous ....................................................... 2,986
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Total ............................................................... $20,000
=======
Item 15. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Subsection (b)(7) of Section 102
of the Delaware General Corporation Law (the "DGCL") enables a corporation in
its original certificate of incorporation or an amendment thereto to eliminate
or limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Article X of the Company's Certificate of Incorporation, as amended,
provides that a director shall not be liable to the Company or its stockholders
for monetary damages for breach of duty as a director, except under the
circumstances listed in (i) through (iv) above and further provides that if the
DGCL is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, the liability of a director of the Company
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, 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),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in, or not opposed to, the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided further that such director or officer had no reasonable cause to
believe his conduct was unlawful.
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Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification may be made in respect to any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such director or officer is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by him in connection
therewith; that indemnification and advancement of expenses provided for, by, or
granted pursuant to Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Paragraph (b) of Article X of the Company's Certificate of
Incorporation, as amended, provides that each person who was or is made a party
to or is threatened to be made party to, or is otherwise involved in, any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he or she is or was a director, officer or employee of the Company (or
was serving at the request of the Company as a director, officer, employee or
agent for another entity) while serving in such capacity shall, except in
certain lawsuits initiated by such persons, be indemnified and held harmless by
the Company, to the full extent authorized by the DGCL, as in effect (or, to the
extent authority for indemnification is broadened, as it may be amended) against
all expense, liability or loss (including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) reasonably incurred by such person in connection therewith.
Paragraph (b) further provides that rights conferred thereby shall be contract
rights and shall include the right to be paid by the Company the expenses
incurred in defending the proceedings specified above, in advance of their final
disposition, provided that, if the DGCL so requires, such payment shall only be
made upon delivery to the Company by the indemnified party of an undertaking to
repay all amounts so advanced if it shall ultimately be determined that the
person receiving such payments is not entitled to be indemnified under Paragraph
(b) or otherwise. Paragraph (b) provides that the Company may, by action of its
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Board of Directors, provide indemnification to its agents with the same scope
and effect as the foregoing indemnification of directors, officers and
employees.
Paragraph (b) provides that persons indemnified thereunder may bring
suit against the Company to recover unpaid amounts claimed thereunder, and that
if such suit is successful, the expense of bringing such suit shall be
reimbursed by the Company. Paragraph (b) further provides that while it is a
defense to such a suit that the person claiming indemnification has not met the
applicable standards of conduct making indemnification permissible under the
DGCL, the burden of proving the defense shall be on the Company and neither the
failure of the Company's Board of Directors to have made a determination that
indemnification is proper, nor an actual determination by the Board of Directors
that the claimant has not met the applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Paragraph (b) provides that the right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition shall not be exclusive of any other right which any person may have
or acquire under any statute, provision of the Company's Certificate of
Incorporation or By-Laws, or otherwise.
Paragraph (b) also provides that the Company may maintain insurance, at
its expense, to protect itself and any of its directors, officers, employees or
agents against any expense, liability or loss, whether or not the Company would
have the power to indemnify such person against such expense, liability or loss
under the DGCL.
Finally, Paragraph (b) provides that the Company may enter into
indemnification contracts consistent with its provisions. However, the existence
of a contract is not a precondition to indemnification under Paragraph (b).
Article VII, Section 7 of the By-Laws of the Company provides:
"The Corporation shall indemnify, to the extent permitted by the General
Corporation Law of Delaware as amended from time to time, (a) each of
its present and former officers and Directors, and (b) each of its
present or former officers, Directors, agents or employees who are
serving or have served at the request of this corporation as an officer,
Director or partner (or in any similar position) of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any
threatened, pending or completed action, suit or proceeding, whether by
or in the right of this corporation by a third party or otherwise, to
which such person is made a party or threatened to be made a party by
reason of such office in this Corporation or in another corporation,
partnership, joint venture, trust or other enterprise. Such
indemnification shall inure to the benefit of the heirs, executors and
administrators of any indemnified person.
To the extent permitted by the General Corporation Law of Delaware,
under general or specific authority granted by the Board of Directors,
(a) this Corporation by specific action of the Board of Directors may
furnish such indemnification to its agents and
II-3
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<PAGE>
employees with respect to their activities on behalf of this
Corporation; (b) this Corporation by specific action of the Board of
Directors may furnish such indemnification to each present or former
officer, director, employee or agent of a constituent corporation
absorbed in a consolidation or merger with this Corporation and to each
officer, director, agent or employee who is or was serving at the
request of such constituent corporation as an officer, director, agent
or employee of another corporation, partnership, joint venture, trust or
other enterprise; and (c) this corporation may purchase and maintain
indemnification insurance on behalf of any of the officers, directors,
agents or employees whom it is required or permitted to indemnify as
provided in this Article."
The Company maintains insurance covering itself and its officers and
directors against certain liabilities incurred in their capacities as such.
Item 16. Exhibits
The following documents are filed as part of this Registration
Statement.
Exhibit Number Description
-------------- -----------
4.1 Restated Certificate of Incorporation, as amended, incorporated
by reference to Exhibit 4(a) to the Registrant's Registration
Statement on Form S-3 No. 33-17330.
4.2 Certificate of Amendment of Restated Certificate of
Incorporation dated September 21, 1995, incorporated by
reference to Exhibit 3.2 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended October 31, 1995.
4.3 Amended and Restated By-Laws of the Registrant, incorporated by
reference to Exhibit 3.2 to the Registrant's Report on Form 8-A
dated January 18, 1994.
4.4 Rights Agreement, dated as of October 29, 1987, between the
Registrant and The First National Bank of Boston, incorporated
by reference to Exhibit 4.1 to the Registrant's Current Report
on Form 8-K (File No. 1-8597) dated October 29, 1987.
4.5 Amendment No. 1 to the Rights Agreement, dated as of June 14,
1993, between the Registrant and The First National Bank of
Boston, incorporated by reference to Exhibit 10.4 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 30, 1993.
4.6 Amendment No. 2 to the Rights Agreement, dated as of January 16,
1995, between the Registrant and the First National Bank of
Boston, incorporated by reference to Exhibit 4.6 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended October 3, 1994.
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<PAGE>
4.7 Agreement and Plan of Merger dated as of April 3, 1997, among
the Registrant, Marlow Acquisition Corp., Marlow Surgical
Technologies, Inc. and the shareholders of Marlow Surgical
Technologies, Inc. named on Schedule I attached thereto.
5.1 Opinion of Latham & Watkins.
23.1 Consent of Latham & Watkins (included in its opinion filed as
Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on page II-7 of this Registration
Statement).
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 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;
(iii) To include any material information with respect to the plan
of distribution not previously discussed 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 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.
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<PAGE>
(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 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
Act, 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 hereunder, 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 Act and
will be governed by the final adjudication of such issue.
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<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 the City of Pleasanton, State of California, on the 22nd day of
May, 1997.
THE COOPER COMPANIES, INC.
By: /s/ A. Thomas Bender
-----------------------------
A. Thomas Bender
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carol R. Kaufman and Robert S.
Weiss, and each of them, with full power of substitution and full power to act
without the other, his true and lawful attorney-in-fact and agent to act for him
in his name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3, or any Registration Statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933,
and to file the same, with all exhibits thereto, and other documents in
connection therewith or in connection with the registration of the Common Stock
under the Securities Exchange Act of 1934, as amended, 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 in order to
effectuate the same as fully, to all intents and purposes, as they or he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ A. Thomas Bender President, Chief Executive May 22, 1997
- ------------------------------ Officer and Director (Principal
A. Thomas Bender Executive Officer)
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert S. Weiss Executive Vice President, May 22, 1997
- ------------------------------ Treasurer, Chief Financial
Robert S. Weiss Officer and Director (Principal
Financial Officer)
/s/ Stephen C. Whiteford Vice President and Corporate May 22, 1997
- ------------------------------ Controller (Principal Accounting
Stephen C. Whiteford Officer)
/s/ Allan E. Rubenstein, M.D. Chairman of the Board of Directors May 22, 1997
- ------------------------------
Allan E. Rubenstein, M.D.
/s/ Michael H. Kalkstein Director May 22, 1997
- ------------------------------
Michael H. Kalkstein
/s/ Donald Press Director May 22, 1997
- ------------------------------
Donald Press
/s/ Moses Marx Director May 22, 1997
- ------------------------------
Moses Marx
/s/ Steven Rosenberg Director May 22, 1997
- ------------------------------
Steven Rosenberg
/s/ Stanley Zinberg, M.D. Director May 22, 1997
- ------------------------------
Stanley Zinberg, M.D.
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
------ ------------
4.1 Restated Certificate of Incorporation, as amended, incorporated
by reference to Exhibit 4(a) to the Registrant's Registration
Statement on Form S-3 No. 33-17330.
4.2 Certificate of Amendment of Restated Certificate of
Incorporation dated September 21, 1995, incorporated by
reference to Exhibit 3.2 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended October 31, 1995.
4.3 Amended and Restated By-Laws of the Registrant, incorporated by
reference to Exhibit 3.2 to the Registrant's Report on Form 8-A
dated January 18, 1994.
4.4 Rights Agreement, dated as of October 29, 1987, between the
Registrant and The First National Bank of Boston, incorporated
by reference to Exhibit 4.1 to the Registrant's Current Report
on Form 8-K (File No. 1-8597) dated October 29, 1987.
4.5 Amendment No. 1 to the Rights Agreement, dated as of June 14,
1993, between the Registrant and The First National Bank of
Boston, incorporated by reference to Exhibit 10.4 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 30, 1993.
4.6 Amendment No. 2 to the Rights Agreement, dated as of January 16,
1995, between the Registrant and the First National Bank of
Boston, incorporated by reference to Exhibit 4.6 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended October 3, 1994.
4.7 Agreement and Plan of Merger dated as of April 3, 1997, among
the Registrant, Marlow Acquisition Corp., Marlow Surgical
Technologies, Inc. and the shareholders of Marlow Surgical
Technologies, Inc. named on Schedule I attached thereto.
5.1 Opinion of Latham & Watkins.
23.1 Consent of Latham & Watkins (included in its opinion filed as
Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on page II-7 of this Registration
Statement).
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[LETTERHEAD OF LATHAM & WATKINS]
May 22, 1997
The Cooper Companies, Inc.
6140 Stoneridge Mall Road
Pleasanton, CA 94588
Re: The Cooper Companies, Inc.
144,800 shares of Common Stock, par value $.10 per share
---------------------------------------------------------
Ladies/Gentlemen:
In connection with the registration of 144,800 shares of common
stock, par value $.10 per share, (the "Shares") of The Cooper Companies, Inc.
(the "Company") issued to certain stockholders of the Company, and 434,400
rights (the "Rights") to acquire 4,344 shares of Series A Junior Participating
Preferred Stock of the Company attached to the Shares, under the Securities Act
of 1933, as amended, on Form S-3 filed with the Securities and Exchange
Commission on May 22, 1997 (the "Registration Statement"), you have requested
our opinion with respect to the matters set forth below.
In our capacity as your special counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Company in connection with the authorization, issuance and sale of
the Shares and the attached Rights. In addition, we have made such legal and
factual examinations and inquiries as we have deemed necessary or appropriate
for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
<PAGE>
<PAGE>
The Cooper Companies, Inc.
May 22, 1997
Page 2
We have been furnished with, and with your consent have relied
upon, certificates of officers of the Company with respect to certain factual
matters. In addition, we have obtained and relied upon such certificates and
assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject transaction
only of the General Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of any
other laws, or as to any matters of municipal law or the laws of any other local
agencies within the state.
Subject to the foregoing, it is our opinion that, as of the date
hereof:
1. The Shares have been duly authorized and are validly issued,
fully paid and nonassessable.
2. The Rights have been duly authorized and, assuming the Shares
bear the legend required by the Rights Agreement dated as of October 29, 1987
between The Cooper Companies, Inc. and the First National Bank of Boston, as
amended, are validly issued.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
<PAGE>
Exhibit 23.2
Consent of Independent Certified Public Accountants
The Board of Directors
The Cooper Companies, Inc.:
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
San Francisco, California
May 21, 1997
<PAGE>
