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As filed with the Securities and Exchange Commission on February 26, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
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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<S> <C> <C> <C>
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
(Address, including ZIP code, and
telephone number, including area code,
of registrant's principal executive offices)
</TABLE>
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
------------------------------------
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 Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Unit Price Registration Fee
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Common Stock ($0.10 par value) 1,150,000 Not applicable $24,796,875(1) $7,515
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Preferred Stock Purchase Rights (2) 3,450,000 Not applicable (2) $100.00
===================================================================================================================================
</TABLE>
(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 on February 20, 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.
------------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement is a combined prospectus and relates to
registration statement no. 33-50016 previously filed by the registrant on Form
S-3 and declared effective on November 20, 1992. This Registration Statement,
which is a new registration statement, also constitutes post-effective Amendment
No. 1 to registration statement no. 33-50016, pursuant to which 297,533 shares
of Common Stock remain to be issued, and such post-effective Amendment No. 1
shall hereafter become effective concurrently with the effectiveness of this
Registration Statement in accordance with Section 8(c) 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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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 FEBRUARY 26, 1997
THE COOPER COMPANIES, INC.
1,447,533 SHARES OF COMMON STOCK
($.10 Par Value Per Share)
This Prospectus relates to up to 1,447,533 shares (the "Shares") of common
stock, par value $.10 per share (the "Common Stock"), of The Cooper Companies,
Inc., a Delaware corporation (the "Company"), which may be offered for sale by a
certain stockholder of the Company (the "Selling Stockholder"). Such sales may
be effected from time to time by the Selling Stockholder directly or through one
or more broker-dealers, in one or more transactions on The New York Stock
Exchange or The Pacific Stock Exchange 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
Shares. The Company will bear all expenses of the offering of the Shares, except
that the Selling Stockholder 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 Stockholder.
The Common Stock is listed on The New York Stock Exchange and The Pacific
Stock Exchange. On February 25, 1997 the last reported sale price for the Common
Stock of the Company as reported on the New York Stock Exchange Composite Tape
was $21 5/8.
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.
------------
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 offered
hereby. 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 offered hereby, reference is made 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.
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 New York
Stock Exchange and The Pacific Stock Exchange and such information can be
inspected at the offices of The New York Stock Exchange, 20 Broad Street, New
York, New York 10005, and The Pacific Stock Exchange, 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;
(c) The portions of the Company's Proxy Statement
for its 1997 Annual Meeting of Stockholders that have been
incorporated by reference into the 1996 10-K;
(d) Current Report on Form 8-K dated January 10, 1997;
(e) Current Report on Form 8-K dated January 30, 1997;
(f) Current Report on Form 8-K dated February 10, 1997;
(g) Current Report on Form 8-K dated February 25, 1997; and
(h) 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
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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, new competitive
inroads, costs to integrate acquisitions, decisions to invest in research and
development projects, regulatory and other delays on new products and programs,
unexpected changes in reimbursement rates and payer mix, unforeseen litigation,
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.
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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 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.
THE SELLING STOCKHOLDER
The Shares being offered hereby are owned by Cooper Life Sciences, Inc.
(the "Selling Stockholder"). On June 14, 1993, the Company entered into a
Settlement Agreement with the Selling Stockholder (the "Settlement Agreement")
in order to resolve all then pending disputes with the Selling Stockholder and
to avoid a costly and disruptive proxy fight, while continuing to maintain a
Board of Directors, the majority of whose members are independent. Pursuant to
the Settlement Agreement, among other things, the Company agreed to nominate and
use its reasonable best efforts to cause, and the Selling Stockholder agreed to
vote all shares of Common Stock of the Company owned by it in favor of, the
election of a Board of Directors of the Company consisting of eight members,
five of whom were designated by the Company (of which a majority would not be
employees of the Company or employees, affiliates or significant stockholders of
the Selling Stockholder), and three by the Selling Stockholder. Such agreements
were to terminate on June 14, 1995, subject to earlier termination or extension
under certain circumstances, and were later extended to, and expired on, October
31, 1996. Following such termination and through June 12, 2002, pursuant to the
Settlement Agreement, the Selling Stockholder continues to have the right that
it had pursuant to a 1992 settlement agreement with the Company to designate two
directors of the Company, so long as the Selling Stockholder continues to own at
least 800,000 shares of Common Stock, or one director, so long as it continues
to own at least 333,333 shares of Common Stock. As of the date of this
Prospectus, the Selling Stockholder owns 1,447,533 shares, or 12.4% of the
Company's issued and outstanding Common Stock. If all these Shares are sold, the
Selling Stockholder will not hold any outstanding shares of the Company's Common
Stock upon termination of this offering.
PLAN OF DISTRIBUTION
The Shares are being sold by the Selling Stockholder for its own
account, and the Company will not receive any of the proceeds from the sale of
the Shares.
The distribution of the Shares by the Selling Stockholder may be
effected from time to time by the Selling Stockholder directly or through one or
more brokers, agents, or dealers in one or more transactions (which may involve
crosses and block transactions) on The New York Stock Exchange, The Pacific
Stock Exchange 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 Shares, they may do so by purchasing Shares
as principals or by selling the Shares as agents for the Selling Stockholder.
Any such brokers, agents or dealers who effect a sale of the Shares 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
Stockholder which may be deemed to be underwriting discounts or commissions and
(ii) may receive commissions from purchasers of the Shares for whom it may act
as agent. If any such broker or dealer purchases the Shares as principal it may
effect resales of the Shares 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
Shares for whom they may act as agents.
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The Company has advised the Selling Stockholder that it and any such
brokers, dealers or agents who effect a sale of the Shares are subject to the
prospectus delivery requirements under the Securities Act. The Company also has
advised the Selling Stockholder that in the event of a "distribution" of its
Shares, the 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.
In connection with distributions of the Shares, the Selling Stockholder
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 Stockholder. The Selling Stockholder also
may sell the Common Stock short and deliver the Shares to close out such short
positions. The Selling Stockholder also may enter into option or other
transactions with broker-dealers that involve the delivery of the Shares to the
broker-dealers, who may then resell or otherwise transfer such Shares. The
Selling Stockholder also may loan or pledge the Shares to a broker-dealer and
the broker-dealer may sell the Shares so loaned or upon a default may sell or
otherwise transfer the pledged Shares.
The Company will bear all expenses of the offering of the Shares,
except that the Selling Stockholder 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 Stockholder. The Company
has agreed to indemnify the Selling Stockholder and any other person who sells
Shares pursuant to this Prospectus, and any officer, director or agent of such
person, against certain civil liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The legality of the Shares 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
October 31, 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, sales person 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 Stockholder. 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
The Selling Stockholder...................................................... 4
Plan of Distribution......................................................... 4
Legal Matters................................................................ 5
Experts...................................................................... 5
--------------------
1,447,533 SHARES
THE COOPER COMPANIES, INC.
COMMON STOCK
--------------------
PROSPECTUS
--------------------
_______________, 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 Shares 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..........................................$ 7,615
Accounting Fees and Expenses............................................. 2,500
Legal Fees and Expenses (other than Blue Sky) ........................... 20,000
Blue Sky Fees and Expenses............................................... 2,000
Miscellaneous............................................................ 1,885
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Total....................................................................$34,000
=======
Item 15. Indemnification of Directors and Officers.
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 involved in, any 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 Delaware General
Corporation Law 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 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
Delaware General Corporation law, 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
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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 Delaware General Corporation Law.
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).
The Company maintains insurance covering its officers and directors
against certain liabilities incurred in their capacities as such, and the
Company is insured against any payments which it is obligated to make to such
persons pursuant to the foregoing indemnification provisions.
Article VII, Section 7 of the By-laws of the Company provides:
"This 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 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."
Section 145 of the General Corporation Law of Delaware empowers a
corporation, subject to certain limitations, to indemnify a director or officer
against expenses (including attorneys' fees, judgments, fines, and certain
settlements) actually and reasonably incurred by him in connection with any suit
or proceeding to which he is, by reason of the fact that he is a director or
officer, a party, so long as he acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to a criminal action or proceeding, so long as he had no reasonable
cause to believe his conduct to have been unlawful.
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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.
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-5 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;
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(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.
(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.
II-4
<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 25th day of
February, 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>
<S> <C> <C>
Signature Title Date
--------- ----- -----
/s/ A. Thomas Bender President, Chief Executive Officer February 25, 1997
- -------------------- and Director (Principal Executive
A. Thomas Bender Officer)
/s/ Robert S. Weiss Executive Vice President, February 25, 1997
- ------------------- Treasurer and Chief Financial
Robert S. Weiss Officer and Director (Principal
Financial Officer)
</TABLE>
II-5
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Stephen C. Whiteford Vice President and Corporate February 25, 1997
- ------------------------ Controller (Principal Accounting
Stephen C. Whiteford Officer)
/s/ Allan E. Rubenstein, M.D. Chairman of the Board of Directors February 25, 1997
- -----------------------------
Allan E. Rubenstein, M.D.
/s/ Mark A. Filler Director February 25, 1997
- ------------------
Mark A. Filler
/s/ Michael H. Kalkstein Director February 25, 1997
- ------------------------
Michael H. Kalkstein
/s/ Donald Press Director February 25, 1997
- ---------------
Donald Press
/s/ Moses Marx Director February 25, 1997
- -------------
Moses Marx
/s/ Steven Rosenberg Director February 25, 1997
- -------------------
Steven Rosenberg
</TABLE>
II-6
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Pages
------ ----------- --------------
<S> <C> <C>
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.
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-6 of this Registration
Statement).
</TABLE>
II-7
<PAGE>
<PAGE>
February 26, 1997
The Cooper Companies, Inc.
6140 Stoneridge Mall Road
Pleasanton, CA 94588
Re: The Cooper Companies, Inc.
1,150,000 shares of Common Stock, par value $.10 per share
----------------------------------------------------------
Ladies/Gentlemen:
In connection with the registration of 1,150,000 shares of
common stock, par value $.10 per share, (the "Shares") of The Cooper Companies,
Inc. (the "Company") issued to Cooper Life Sciences, Inc., and rights (the
"Rights") to acquire 3,450,000 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
February 26, 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.
We have been furnished with, and with your consent have relied
upon, certificates of officers of the Company with respect to certain factual
matters.
<PAGE>
<PAGE>
The Cooper Companies, Inc.
February 26, 1996
Page 2
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 validly issued and, to our
knowledge, are 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>
Accountants' Consent
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
February 24, 1997
<PAGE>
