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As filed with the Securities and Exchange Commission on April 21, 1997
REGISTRATION NO. 333-25051
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
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)
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DELAWARE THE COOPER COMPANIES, INC. 94-2657368
(State or Other Jurisdiction 6140 STONERIDGE MALL ROAD, SUITE 590 I.R.S. Employer
of Incorporation or Organization) PLEASANTON, CALIFORNIA 94588 (Identification Number)
(510) 460-3600
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(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)
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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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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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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.
PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 21, 1997
2,500,000 SHARES
THE COOPER COMPANIES, INC.
Common Stock
The Cooper Companies, Inc. (the "Company"), directly or though agents,
dealers or underwriters designated from time to time, may offer, issue and sell,
in one or more series or issuances, up to an aggregate of 2,500,000 shares of
its common stock, $.10 par value per share ("Common Stock"), together with the
Rights ("Rights") to acquire the Company's Series A Junior Participating
Preferred Stock that are attached to and trade with the Common Stock. The Common
Stock and the Rights are herein collectively referred to as the "Securities".
The Securities may be offered in amounts, at prices and on terms to be set forth
in one or more supplements to this Prospectus (each a "Prospectus Supplement").
The Common Stock is listed on the New York Stock Exchange, Inc. (the
"NYSE") and the Pacific Stock Exchange (the "PSE"). Any Common Stock sold
pursuant to a Prospectus Supplement will be listed on the NYSE and the PSE. On
April 18, 1997 the last reported sale price for the Common Stock of the Company
as reported on the NYSE Composite Tape was $18.50 per share.
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 Securities may be offered by the Company directly to one or more
purchasers, through agents designated from time to time by the Company, to or
through underwriters or dealers or through a combination of such methods. If any
agents, dealers or underwriters are involved in the sale of any of the
Securities, the names of such agents, dealers or underwriters, and any
applicable purchase price, fee, commission or discount arrangement between or
among them, will be set forth, or will be calculable from the information set
forth, in the Prospectus Supplement. See "Plan of Distribution." This Prospectus
may not be used to consummate sales of Securities without delivery of a
Prospectus Supplement describing the method and terms of the offering of such
Securities.
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The date of this Prospectus is ______________, 1997.
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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 Form 8-K dated January 10, 1997, January 30, 1997,
February 10, 1997, February 25, 1997, March 18, 1997, March 26, 1997
and April 7, 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 offered hereby 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/or earnings per share associated with
acquisitions and/or stock issuances, decisions to invest in research and
development projects, regulatory issues, unexpected changes in reimbursement
rates
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and 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. 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 holders of Common Stock offered hereby. 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 11.5% 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'
significant
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ownership of Common Stock, CLS and Mr. Marx may have significant influence
over the affairs of the Company.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net
proceeds from the sale of the Securities will be used for general corporate
purposes, which may include but are not limited to working capital, capital
expenditures, repayment or refinancing of indebtedness and acquisitions. When a
particular series of Securities is offered, the relevant Prospectus Supplement
will set forth the Company's intended use for the net proceeds received from the
sale of such Securities. Pending the application of the net proceeds, the
Company expects to invest the proceeds in short-term, interest-bearing
instruments or other investment-grade securities.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them and may also sell the Securities to investors
directly or through agents. Any such underwriter, dealer or agent involved in
the offer and sale of the Securities will be named in the applicable Prospectus
Supplement. The Company has reserved the right to sell the Securities directly
to investors on its own behalf in those jurisdictions where and in such manner
as it is authorized to do so.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Sales of the Securities
offered hereby may be effected from time to time in one or more transactions on
the NYSE or the PSE or in negotiated transactions or a combination of such
methods. The Company may also, from time to time, authorize dealers, acting as
the Company's agents, to offer and sell the Securities upon the terms and
conditions as are set forth in the applicable Prospectus Supplement. In
connection with the sale of the Securities, underwriters may receive
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters may sell the Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent. Any such underwriter, dealer
or agent will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement. Unless otherwise indicated in a
Prospectus Supplement, an agent will be acting on a best efforts basis and a
dealer will purchase Securities as a principal and may then resell such
Securities at varying prices to be determined by the dealer.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized
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by them on resale of the Securities may be deemed to be underwriting discounts
and commissions. Underwriters, dealers and agents may be entitled, under
agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Company for certain expenses.
To facilitate an offering of a series of Securities, certain persons
participating in any such offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the Securities. This may include
over-allotments or short sales of the Securities, which involves the sale by
persons participating in the offering of more Securities than have been sold to
them by the Company. In such circumstances, such persons would cover such
over-allotments or short positions by purchasing Securities in the open market
or by exercising the over-allotment option, if any, granted to such persons. In
addition, such persons may stabilize or maintain the price of the Securities by
bidding for or purchasing Securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in any such
offering may be reclaimed if the Securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of the Securities at a level above
that which might otherwise prevail in the open market. Such transactions, if
commenced, may be discontinued at any time.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for the Company in the ordinary
course of business.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby will
be passed upon for the Company by Latham & Watkins, San Francisco, California.
Certain legal matters will be passed upon for any agents or underwriters by
counsel for such agents or underwriters identified in the applicable Prospectus
Supplement.
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. 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
Available Information.................2
Incorporation of Certain
Information by Reference............2
Forward-Looking Statements............3
The Company...........................4
Risk Factors..........................4
Use of Proceeds.......................5
Plan of Distribution..................5
Legal Matters.........................6
Experts...............................6
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2,500,000 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 to be paid by the Company in connection with the
distribution of the Securities being registered are set forth in the table
below. All amounts are estimates except the Securities Act registration fee.
Securities Act Registration Fee....................................... $14,873
Accounting Fees and Expenses.......................................... 50,000
Legal Fees and Expenses (other than Blue Sky)......................... 100,000
Blue Sky Fees and Expenses............................................ 15,000
Printing Expenses..................................................... 75,000
Transfer Agent Fees and Expenses...................................... 10,000
Miscellaneous......................................................... 35,127
Total................................................................. $300,000
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
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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.
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 Delaware General Corporation
Law, 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
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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 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.
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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 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
*1.1 Form of Underwriting Agreement
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
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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 31, 1994.
**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).
- -------
* To be filed by amendment or incorporated by reference in connection with the
applicable offering of the Securities.
** Previously Filed.
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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(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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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 Amendment
No. 1 to registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Pleasanton, State of California, on
the 21st day of April, 1997.
THE COOPER COMPANIES, INC.
By: /s/ Carol R. Kaufman
-------------------------------------
Carol R. Kaufman
Vice President of Legal Affairs,
Secretary and Chief
Administrative Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the 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>
* A. Thomas Bender President, Chief Executive April 21, 1997
- -------------------- Officer and Director (Principal
A. Thomas Bender Executive Officer)
* Robert S. Weiss Executive Vice President, April 21, 1997
- ------------------- Treasurer and Chief Financial
Robert S. Weiss Officer and Director (Principal
Financial Officer)
* Stephen C. Whiteford Vice President and Corporate April 21, 1997
- ------------------------ Controller (Principal Accounting
Stephen C. Whiteford Officer)
* Allan E. Rubenstein, M.D. Chairman of the Board of Directors April 21, 1997
- -----------------------------
Allan E. Rubenstein, M.D.
* Michael H. Kalkstein Director April 21, 1997
- ------------------------
Michael H. Kalkstein
* Donald Press Director April 21, 1997
- ----------------
Donald Press
* Moses Marx Director April 21, 1997
- --------------
Moses Marx
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
* Steven Rosenberg Director April 21, 1997
- --------------------
Steven Rosenberg
* Stanley Zinberg, M.D. Director April 21, 1997
- ------------------------
Stanley Zinberg, M.D.
/s/ Carol R. Kaufman
- ------------------------
Carol R. Kaufman
as attorney-in-fact
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER
*1.1 Form of Underwriting Agreement
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 31, 1994.
**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).
- ------------
* To be filed by amendment or incorporated by reference in connection with the
applicable offering of the Securities.
** Previously Filed.
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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.
KPMG Peat Marwick LLP
San Francisco, California
April 18, 1997
<PAGE>
