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As filed with the Securities and Exchange Commission on June 16, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
THE COOPER COMPANIES, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 6140 STONERIDGE MALL ROAD, SUITE 590 94-2657368
(State or Other Jurisdiction PLEASANTON, CALIFORNIA 94588 (I.R.S. Employer
of Incorporation or Organization) (925) 460-3600 Identification Number)
(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
(925) 460-3600
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
----------------------
COPIES TO:
SAMUEL A. FISHMAN, 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. [ ]
----------------------
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 ($0.10 par value) 83,333 $22.50 $1,874,992.50 $521.25
- ----------------------------------------------------------------------------------------------------------------------------
Preferred Stock Purchase Rights (2) 83,333 Not applicable (2) $100
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</TABLE>
(1) Estimated solely for the purpose of computing the amount of registration
fee, based on the average of the high and low prices for the Common Stock
as reported on the New York Stock Exchange, Inc. on June 11, 1999, in
accordance with Rule 457(c) promulgated under the Securities Act of 1933.
(2) Rights to acquire shares of the Registrant's Series A Junior Participating
Preferred Stock are attached to and trade with the Common Stock of the
Registrant. Value attributable to such Rights, if any, is reflected in the
market price of the Common Stock. Fee paid represents the minimum statutory
fee pursuant to Section 6(b) of the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
The information in this prospectus is not complete and may be changed. The
selling stockholder may not resell these securities until the registration
statement filed with the securities and exchange commission is effective. This
prospectus is not an offer to sell these securities and this prospectus is not
soliciting an offer to buy these securities in any state where the offer or sale
is not permitted.
PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JUNE 16, 1999
THE COOPER COMPANIES, INC.
83,333 SHARES OF COMMON STOCK
($.10 Par Value Per Share)
This prospectus relates to up to 83,333 shares of our common stock, par
value $.10 per share, and the rights to acquire our series A junior
participating preferred stock that are attached to and trade with the common
stock, which may be offered for sale by a selling stockholder. Each share of
common stock carries with it one right to purchase 1/100th of a share of our
series A junior participating preferred stock. Shares of common stock may be
sold 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 Exchange, Inc. in accordance with the rules of those exchanges,
in the over-the-counter market, in negotiated transactions or otherwise, at
prices related to the prevailing market prices or at negotiated prices.
We will not receive any of the proceeds from the sale of the shares of
common stock. We will bear all expenses of the offering of the common stock,
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 his counsel and experts.
Our common stock is listed on the New York Stock Exchange and the
Pacific Exchange, Inc. On June 15, 1999 the last reported sale price for our
common stock as reported on the New York Stock Exchange composite tape was
$22 3/4 per share.
-----------------
SEE "RISK FACTORS" COMMENCING ON PAGE 4 FOR A DISCUSSION OF CERTAIN
FACTORS THAT YOU SHOULD CONSIDER BEFORE PURCHASING THE SECURITIES OFFERED BY
THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OF THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------
The date of this prospectus is June , 1999
------------------
<PAGE>
AVAILABLE INFORMATION
We have filed with the Securities and Exchange Commission a
registration statement on Form S-3 with respect to the shares of common stock
offered by this prospectus. As permitted by the rules and regulations of the
Securities and Exchange Commission, this prospectus does not contain all of the
information set forth in the registration statement and the exhibits and
schedules to the registration statement. For further information about us and
our common stock, please refer to the registration statement and the exhibits to
the registration statement, which you may examine without charge at the public
reference facilities maintained by the Securities and Exchange Commission at
Room 1204, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
copies of which you may obtain from the Securities and Exchange Commission upon
payment of the prescribed fees. Statements contained in this prospectus as to
the contents of any agreement or other document referred to in this prospectus
or in the agreement or other document are qualified by reference to the copy of
the agreement or other document filed as an exhibit to the registration
statement or the other document.
We are subject to the information requirements of the Securities
Exchange Act of 1934, and we file reports, proxy statements and other
information with the Securities and Exchange Commission. You may inspect and
copy the registration statement and its exhibits and schedules and the reports,
proxy statements and other information that we file with the Securities and
Exchange Commission in accordance with the Securities Exchange Act of 1934 at
the public reference facilities maintained by the Securities and Exchange
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. You may obtain copies
of these materials at prescribed rates from the Public Reference Section of the
Securities and Exchange Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. The Securities and Exchange Commission maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants who file with the Securities and Exchange Commission and certain of
our filings are available at this web site: http://www.sec.gov. In addition, our
common stock is listed on the New York Stock Exchange and the Pacific Exchange,
Inc. and you can inspect reports and other information we file at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005 and the
Pacific Exchange, Inc., 301 Pine Street, San Francisco, California 94104.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with the Securities and Exchange Commission,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is an important
part of this prospectus. Any statement contained in a document incorporated by
reference in this prospectus is automatically updated and superseded if
information contained in this prospectus, or information that we later file with
the Securities and Exchange Commission, modifies or replaces this information.
We incorporate by reference the following documents filed by us with the
Securities and Exchange Commission:
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<PAGE>
annual report on Form 10-K for our fiscal year ended October 31, 1998;
the portions of our 1999 annual report to stockholders that have been
incorporated by reference into the 10-K referenced above;
the portions of our proxy statement for our annual meeting of
stockholders held March 18, 1999 that have been incorporated by
reference into the 10-K referenced above;
quarterly reports on Form 10-Q for the quarterly period ended January
31, 1999 and the quarterly period ended April 30, 1999;
current reports on Form 8-K filed on November 5, 1998, November 25,
1998, December 23, 1998, January 21, 1999, February 5, 1999, February
25, 1999, March 23, 1999, April 30, 1999, May 14, 1999 and June 3,
1999;
the description of our common stock contained in our registration
statement on Form 8-A filed on October 28, 1983 and the description of
our rights contained in our registration statement on Form 8-A filed on
November 3, 1997; and
all documents we file with the Securities and Exchange Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 after the date of this prospectus but before the
termination of the offering of securities offered by this prospectus.
To receive a free copy of any of the documents incorporated by reference
in this prospectus (other than exhibits, unless they are specifically
incorporated by reference in the documents), call or write to the Vice President
of Legal Affairs of The Cooper Companies, Inc., 6140 Stoneridge Mall Road, Suite
590, Pleasanton, California 94588 (telephone number: (925) 460-3600).
FORWARD-LOOKING STATEMENTS
Some of the information included and incorporated by reference in this
prospectus contains "forward-looking statements" as defined by the Private
Securities Litigation Reform Act of 1995. The forward-looking statements include
certain statements pertaining to our (including our subsidiaries') capital
resources, performance and results of operations. In addition, all statements
regarding anticipated growth in our sales, revenues and products and anticipated
market conditions and results of operations are forward-looking statements.
Forward-looking statements involve numerous risks and uncertainties and you
should not rely on them as predictions of future events. The events or
circumstances reflected in forward-looking statements might not occur. You can
identify forward-looking statements by the use of forward-looking terminology
such as "believes," "expects," "may," "will," "should," "seeks,"
"approximately," "intends," "plans," "pro forma," "estimates" or "anticipates"
or the negative of these words and phrases or similar words or phrases. You can
also identify forward-looking statements by discussions of strategy, plans or
intentions. Forward-looking statements are
3
<PAGE>
necessarily dependent on assumptions, data or methods that may be incorrect or
imprecise and we may not be able to realize them. The following factors, among
others, could cause actual results and future events to differ materially from
those set forth or contemplated in the forward-looking statements: major changes
in business conditions and the economy, loss of key senior management, major
disruptions in the operations of our manufacturing facilities, new competitors
or technologies, significant disruptions caused by the failure of third parties
to address the year 2000 issue or by unforeseen delays in completing our year
2000 compliance program, acquisition integration costs, foreign currency
exchange exposure including the potential impact of the Euro, investments in
research and development and other start-up projects, dilution to earnings per
share from acquisitions or issuing stock, regulatory issues, significant
environmental clean-up costs above those already accrued, litigation costs,
costs of business divestitures, and items discussed below under "Risk Factors"
and in the reports we file with the Securities and Exchange Commission,
including the section entitled "Business" in our annual report on Form 10-K for
the year ended October 31, 1998. We caution you not to place undue reliance on
forward-looking statements, which reflect our analysis only and speak only as of
the date of this prospectus or the dates indicated in the forward-looking
statements.
RISK FACTORS
The market price of our 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 us
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 our common stock.
We have outstanding options to purchase 1,650,257 shares of common
stock, 787,050 of which are currently exercisable. If these options are
exercised, the issuance of common stock upon exercise would dilute the
proportionate voting power and equity interests of the holders of the common
stock offered by this prospectus. In addition, sales of substantial amounts of
our common stock by existing stockholders, or the perception that significant
sales could occur, could adversely affect prevailing market prices for our
common stock.
THE COMPANY
Through our principal subsidiaries (CooperVision, Inc. and
CooperSurgical, Inc.), we develop, manufacture and market healthcare products.
CooperVision, Inc. markets a range of contact lenses to correct visual defects,
specializing in lenses that correct astigmatism ("torics"). Its leading products
are disposable-planned replacement toric and spherical lenses. CooperVision,
Inc. also markets conventional toric and spherical lenses and lenses for
patients with more complex vision disorders. CooperSurgical, Inc. markets
diagnostic products, surgical instruments and accessories to the women's
healthcare market.
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THE SELLING STOCKHOLDER
The 83,333 shares of our common stock to be offered under this
prospectus are owned by Anthony W. Hemming. In this prospectus, we refer to Mr.
Hemming as the "selling stockholder." The selling stockholder acquired the
shares of common stock upon exercise of a warrant that we issued to him in
connection with the purchase of all of the stock of Unimar, Inc. by
CooperSurgical, Inc. in April of 1996. The selling stockholder is a former
stockholder of Unimar. In connection with the acquisition of Unimar,
CooperSurgical, Inc. and Unimar entered into a services agreement with the
selling stockholder pursuant to which the selling stockholder provided
consulting services to CooperSurgical, Inc. and Unimar until April 11, 1998, at
which time the services agreement terminated pursuant to its terms. The selling
stockholder has pledged the 83,333 shares registered pursuant to this
registration statement to McDonald Investments, Inc. as security for a loan. If
the selling stockholder defaults on the loan, McDonald Investments, Inc. could
obtain ownership of the shares and would then become a selling stockholder under
this prospectus. McDonald Investments, Inc. is a subsidiary of KeyBank National
Association. We have a $50 million line of credit with KeyBank National
Association.
Including the shares registered under this registration statement, the
selling stockholder owns 92,133 shares of our common stock, which constitute
less than 1% of our issued and outstanding common stock. Because the selling
stockholder may sell all or some portion of the shares covered by this
prospectus, we cannot estimate the number of shares, and the percentage of
outstanding shares of common stock that he will hold after any particular sale.
PLAN OF DISTRIBUTION
The shares of common stock offered by this prospectus are being sold by
the selling stockholder for his own account, and we will not receive any of the
proceeds from the sale of the shares.
The distribution of the shares of common stock by the selling
stockholder may be made 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 Exchange, Inc. or other exchanges on which our common
stock is listed, pursuant to and in accordance with the rules of those
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
shares as agents for the selling stockholder. Any brokers, agents or dealers who
sell the shares may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933. Any broker, agent or dealer may receive compensation
from the selling stockholder which may be deemed to be underwriting discounts or
commissions and may receive commissions from purchasers of the securities for
whom it may act as agent. If any such broker or dealer purchases the shares as
principal it may resell the shares from time to time to or through other brokers
or dealers, and the 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.
5
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We have advised the selling stockholder that it and any brokers,
dealers or agents who effect a sale of the shares are subject to the prospectus
delivery requirements of the Securities Act of 1933. We have 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 the distribution
may be subject to applicable provisions of the Securities Exchange Act of 1934
and its rules and regulations, including Regulation M.
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 our common stock in the course of hedging the
positions they assume with the selling stockholder. The selling stockholder also
may sell our common stock short and deliver the shares to close out 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 the shares. The
selling stockholder may transfer the shares to a donee and any donee would
become a selling stockholder under this prospectus. The selling stockholder has
pledged the shares registered pursuant to this registration statement to
McDonald Investments, Inc. as security for a loan. If the selling stockholder
defaults on the loan, McDonald Investments, Inc. could obtain ownership of the
shares and would then become a selling stockholder under this prospectus. See
"The Selling Stockholder."
We 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 his
counsel and experts.
LEGAL MATTERS
The legality of the shares of common stock offered by this prospectus
will be passed upon for us by Latham & Watkins, San Francisco, California.
Certain members of Latham & Watkins and their families own beneficial interests
in less than 1% of our common stock.
EXPERTS
The consolidated financial statements and schedule of The Cooper
Companies, Inc. and subsidiaries as of October 31, 1998 and 1997 and for each of
the years in the three-year period ended October 31, 1998 have been incorporated
by reference herein and in the registration statement in reliance upon the
reports of KPMG LLP, independent certified public accountants, incorporated by
reference herein and in the registration statement, and upon the authority of
said firm as experts in accounting and auditing.
6
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NEITHER WE NOR THE SELLING STOCKHOLDER HAVE AUTHORIZED ANY PERSON TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. YOU MUST NOT RELY UPON ANY INFORMATION OR
REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
THIS PROSPECTUS IS NOT AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES AND THIS
PROSPECTUS IS NOT AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. YOU SHOULD NOT ASSUME THAT THE INFORMATION
CONTAINED IN THIS PROSPECTUS IS CORRECT ON ANY DATE AFTER THE DATE OF THIS
PROSPECTUS, EVEN THOUGH THIS PROSPECTUS IS DELIVERED OR SHARES ARE SOLD PURSUANT
TO THIS PROSPECTUS ON A LATER DATE.
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TABLE OF CONTENTS
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PAGE
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Available Information.......................... 2
Incorporation of Certain
Information by Reference..................... 2
Forward-Looking Statements..................... 3
Risk Factors................................... 4
The Company.................................... 4
The Selling Stockholder........................ 5
Plan of Distribution........................... 5
Legal Matters.................................. 6
Experts........................................ 6
</TABLE>
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83,333 SHARES
THE COOPER COMPANIES, INC.
COMMON STOCK
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PROSPECTUS
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June , 1999
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<PAGE>
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.
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Securities Act Registration Fee........................................ $ 521
Accounting Fees and Expenses........................................... 5,000
Legal Fees and Expenses (other than Blue Sky).......................... 10,000
Printing Fees and Expenses ............................................ 500
Miscellaneous.......................................................... 3,979
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Total.................................................................. $20,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Cooper Companies, Inc. is a Delaware corporation. Subsection (b)(7)
of Section 102 of the Delaware General Corporation Law (the "Delaware General
Corporation Law") 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 (1) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) pursuant to Section 174 of the
Delaware General Corporation Law (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or (4)
for any transaction from which a director derived an improper personal benefit.
Article X of The Cooper Companies, Inc.'s Certificate of Incorporation,
as amended, provides that a director shall not be liable to The Cooper
Companies, Inc. or its stockholders for monetary damages for breach of duty as a
director, except under the circumstances listed in (1) through (4) above and
further provides that if the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, the liability of a director of The Cooper Companies,
Inc. shall be eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended.
Subsection (a) of Section 145 of the Delaware General Corporation Law
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
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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.
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 Cooper Companies, Inc.'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 Cooper
Companies, Inc. (or was serving at the request of The Cooper Companies, Inc. 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 Cooper Companies, Inc., 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 Cooper Companies, Inc. 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
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shall only be made upon delivery to The Cooper Companies, Inc. 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 Cooper Companies, Inc. 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 Cooper Companies, Inc. to recover unpaid amounts claimed
thereunder, and that if such suit is successful, the expense of bringing such
suit shall be reimbursed by The Cooper Companies, Inc.. 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 Cooper Companies, Inc. and neither
the failure of The Cooper Companies, Inc.'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 Cooper Companies, Inc.'s
Certificate of Incorporation or By-Laws, or otherwise.
Paragraph (b) also provides that The Cooper Companies, Inc. 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 Cooper Companies, Inc. 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 Cooper Companies, Inc. 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 Cooper Companies, Inc.
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
II-3
<PAGE>
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."
The Cooper Companies, Inc. 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.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <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 Certificate of Designations of Series A Junior
Participating Preferred Stock of the Registrant,
incorporated by reference to Exhibit 4.0 to the
Registrant's Current Report on Form 8-K dated
October 29, 1997.
4.4 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.
4.5 Rights Agreement, dated as of October 29, 1997,
between the Registrant and American Stock Transfer
& Trust Company, incorporated by reference to
Exhibit 4.1 to the Registrant's Current Report on
Form 8-K (File No. 1-8597) dated October 29, 1997.
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
4.6 Common Stock Purchase Warrant dated April 11,
1996, in favor of Anthony W. Hemming.
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 LLP.
24.1 Power of Attorney (included on page II-7 of this
Registration Statement).
</TABLE>
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 Securities and Exchange 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.
II-5
<PAGE>
(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-6
<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 15th day of
June, 1999.
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 Officer and June 15, 1999
- --------------------------- Director (Principal Executive Officer)
A. Thomas Bender
/s/ Robert S. Weiss Executive Vice President, Treasurer, Chief June 15, 1999
- -------------------------- Chief Financial Officer and Director
Robert S. Weiss (Principal Financial Officer)
/s/ Stephen C. Whiteford Vice President and Corporate Controller June 15, 1999
- -------------------------------- (Principal Accounting Officer)
Stephen C. Whiteford
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Allan E. Rubenstein, M.D. Chairman of the Board of Directors June 15, 1999
- ------------------------------
Allan E. Rubenstein, M.D.
/s/ Michael H. Kalkstein Director June 15, 1999
- ------------------------------
Michael H. Kalkstein
/s/ Donald Press Director June 15, 1999
- ------------------------------
Donald Press
/s/ Moses Marx Director June 15, 1999
- ------------------------------
Moses Marx
/s/ Steven Rosenberg Director June 15, 1999
- ------------------------------
Steven Rosenberg
/s/ Stanley Zinberg, M.D. Director June 15, 1999
- ------------------------------
Stanley Zinberg, M.D.
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <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 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant, incorporated by reference
to Exhibit 4.0 to the Registrant's Current Report on Form 8-K
dated October 29, 1997.
4.4 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.
4.5 Rights Agreement, dated as of October 29, 1997, between the
Registrant and American Stock Transfer & Trust Company,
incorporated by reference to Exhibit 4.1 to the Registrant's
Current Report on Form 8-K (File No. 1-8597) dated October 29,
1997.
4.6 Common Stock Purchase Warrant dated April 11, 1996, in favor
of Anthony W. Hemming.
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 LLP.
24.1 Power of Attorney (included on page II-7 of this Registration
Statement).
</TABLE>
II-9
<PAGE>
Exhibit 4.6
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS AND MUST BE HELD INDEFINITELY UNLESS SUBSEQUENTLY REGISTERED
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR DISPOSED OF PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. THE TRANSFER OF THIS
WARRANT IS PROHIBITED IN CERTAIN CIRCUMSTANCES AS SET FORTH HEREIN.
COMMON STOCK PURCHASE WARRANT
-----------------------------
Dated April 11, 1996
-----------------------------
Void After June 10, 1999
The Cooper Companies, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, the adequacy and receipt of which are
hereby acknowledged, Anthony W. Hemming, or his registered permitted assigns in
accordance with this Warrant (Anthony W. Hemming and such assigns, collectively,
the `Warrantholder"), is entitled, subject to the terms and conditions set forth
in this Warrant (said Warrant and any warrants issued in exchange herefor or
transfer or replacements hereof, collectively, the "Warrants"), to purchase from
the Company, for cash, Eighty-three Thousand Three Hundred Thirty-three (83,333)
fully paid and nonassessable shares of Common Stock of the Company, par value
$.10 per share (the "Common Stock"), on April 11, 1999 or any time or from time
to time thereafter until June 10, 1999 (the "Exercise Period") at an exercise
price of $11.375 per share (the "Exercise Price"), the number of such shares of
Common Stock and the Exercise Price being subject to adjustment as provided
herein.
This Warrant is being delivered pursuant to the Stock Purchase
Agreement dated as of April 10, 1996 (the "Purchase Agreemenf'), among The
Cooper Healthcare Group, Inc., the Company, Anthony W. Hemming, Edward C.
Vollmer, Norman E. LeBlanc and Unimar, Inc.
1. Exercise of Warrant. The rights represented by this Warrant may be
exercised by the Warrantholder, in whole or in part (but not as to a fractional
share of Common Stock), during the Exercise Period by the presentation and
surrender of this Warrant with written notice of the Warrantholder electing to
purchase, at the principal executive office of the Company or at such other
address as the Company may designate by notice in writing to the Warrantholder
at the address of such Warrantholder appearing on the books of the Company, and
upon payment to the Company of the Exercise Price for such shares of Common
Stock. Such payment shall be made by certified or cashier's check to the order
of the Company. The Company agrees that the shares so purchased (the "Warrant
Shares") shall be deemed to have been issued to the Warrantholder as the record
owner of such Warrant Shares as of the close of business on the date on which
this Warrant shall have been surrendered (in accordance with Section 11 (b)
hereof) together with the aforementioned written notice of election to purchase,
<PAGE>
and payment for such Warrant Shares shall have been made as aforesaid.
Cerfificates for the Warrant Shares so purchased shall be delivered to the
Warrantholder within a reasonable time, not exceeding ten (10) business days,
after the rights represented by this Warrant shall have been so exercised, and,
unless this Warrant has expired, a new Warrant representing the number of
shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the Warrantholder within such time.
2. Exercise Price. Warrant Shares shall be purchased at the Exercise
Price set forth above, subject to adjustment as provided herein.
3. Warrantholders Not Deemed Stockholders. The Warrantholder shall not
be entitled to vote or receive dividends or be deemed the holder of Common
Stock, nor shall anything contained herein be construed to confer upon the
Warrantholder, as holder of Warrants, any of the rights of a stockholder of the
Company or any right to vote upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue of stock, reclassification of stock, change of
par value or change of stock to no par value, consolidation, merger, conveyance,
or otherwise) or to receive notice of meetings, or to receive dividends, except
as otherwise provided herein, until this Warrant shall have been exercised and
the Warrant Shares receivable upon the exercise hereof shall have been deemed
delivered as provided in Section 1 above.
4. Adjustment of Number of Shares, Exercise Price and Nature of
Securities Issuable Upon Exercise of Warrants.
(a) Exercise Price; Adjustment of Number of Shares. The
Exercise Price shall be subject to adjustment from time to time as hereinafter
provided. Upon each adjustment of the Exercise Price, the Warrantholder shall
thereafter be entitled to purchase, at the Exercise Price resulting from such
adjustment, a number of shares obtained by multiplying the Exercise Price in
effect immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(b) Provisions for Adjustment of Exercise Price Upon Issuance
of Additional Shares of Common Stock and Convertible Securities. The following
provisions shall also be applicable:
(i) In case at any time on or after the date hereof,
the Company shall declare any dividend, or order any other distribution, upon
any stock of the Company of any class, payable in additional shares of Common
Stock or by the issuance of evidence of indebtedness, shares of stock or other
securities which are at any time directly or indirectly convertible into or
exchangeable for additional shares of Common Stock (all such indebtedness and
securities are referred to as "Convertible Securities") then, immediately
following the record date fixed for the determination of holders of Common Stock
entitled to receive such dividend or distribution, the Exercise Price in effect
immediately prior to such record date shall be reduced to equal the Exercise
Price obtained by dividing (1) the number of shares of Common Stock, plus the
number of shares of Common Stock issuable upon conversion of any previously
issued
2
<PAGE>
Convertible Securities, outstanding immediately prior to such record date
multiplied by the then existing Exercise Price (plus, in the case of a dividend
or distribution of Convertible Securities, the aggregate consideration payable
to the Company upon the conversion of exchange of such Convertible Securities),
by (2) the total number of shares of Common Stock, plus the number of shares of
Common Stock issuable upon conversion of any previously issued Convertible
Securities, outstanding immediately after such record date (assuming, in the
case of a dividend or distribution of Convertible Securities, issuance of the
number of shares of Common Stock issuable upon conversion or exchange of such
Convertible Securities on such record date).
(ii) In any case where an adjustment has been made in
the Exercise Price upon the issuance of Convertible Securities, no further
adjustment shall be made at the time of the conversion or exchange of any such
Convertible Securities. If any rights of conversion or exchange evidenced by
Convertible Securities shall expire without having been exercised, the adjusted
Exercise Price shall be readjusted to the Exercise Price that would have been in
effect had an adjustment with respect to such Convertible Securities been made
on the basis that the only additional shares of Common Stock issuable at the
time of the dividend or distribution were those actually issued upon the
conversion or exchange of such Convertible Securities, and that they were issued
for the consideration actually received by the Company upon such conversion or
exchange.
(iii) In case at any time the Company shall fix a
record date of the holders of its Common Stock for the purpose of entitling them
to receive a dividend or other distribution payable in Common Stock or
Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed, pursuant to this Section
4(b), to have been issued or sold upon the declaration of such dividend or the
making of such other distribution, as the case may be; provided, however, that
the Company may elect to defer until the occurrence of such event (A) issuing to
the holder of any Warrant exercised after such record date the Warrant Shares
and (B) paying to such holder any amount in cash in lieu of a fractional share
pursuant to Section 6; provided, however, that the Company shall deliver to such
Warrantholder a due bill or other appropriate instrument evidencing such
Warrantholder's right to receive such additional Warrant Shares upon the
occurrence of the event requiring such adjustment.
(iv) The number of shares of Common Stock outstanding
at any given time shall not include shares owned or held by or for the account
of the Company.
(c) Reorganization, Reclassification, Consolidation, Merger or
Sale. If any capital reorganization or reclassification of the capital stock of
the Company, or any consolidation or merger of the Company with another
corporation, stock exchange, or the sale of all or substantially all of its
assets to another corporation shall be effected in such a way that holders of
Common Stock shall be entitled to receive cash, stock, securities or assets with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, stock exchange, merger or sale,
lawful and adequate provisions shall be made whereby the Warrantholder shall
thereafter have the right to purchase and receive, upon the basis and upon the
terms and conditions specified in this Warrant upon exercise of this
3
<PAGE>
Warrant and in lieu of the shares of the Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such cash, shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of Common Stock equal to the number of shares of such Common Stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented by this Warrant.
(d) Stock Splits and Reverse Splits. In case at any time the
Company shall subdivide its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Common
Stock purchasable upon exercise of this Warrant immediately prior to such
subdivision shall be proportionately increased, and, conversely, in case at any
time the Company shall combine its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares of
Common Stock purchasable upon the exercise of this Warrant immediately prior to
such combination shall be proportionately reduced.
(e) Adjustment Certificate. In each case of an adjustment in
the number of shares of Common Stock or other stock, securities or property
receivable on the exercise of the Warrants, the Company shall compute such
adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment and showing in detail the facts upon
which such adjustment is based, including a statement of (1) the consideration
received or to be received by the Company for any additional shares of Common
Stock or Convertible Securities issued or deemed to have been issued, (ii) the
number of shares of Common Stock outstanding or deemed to be outstanding, (iii)
the adjusted Exercise Price and (iv) the number of shares issuable upon exercise
of this Warrant following the adjustment. The Company will send a copy of each
such certificate to the Warrantholder in accordance with Section 11(b) hereof.
5. Special Agreements of the Company.
(a) Reservation of Shares. The Company covenants and agrees
that all Warrant Shares will, upon issuance, be validly issued, fully paid and
nonassessable and free from all preemptive rights of any stockholder, and from
all taxes, liens and charges with respect to the issue thereof (other than taxes
in respect to any transfer occurring contemporaneously with such issue). The
Company further covenants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized, and reserved, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this Warrant. The
Company hereby covenants and agrees to take all such action as may be necessary
to assure that the par value per share of the Common Stock is at all times equal
to or less than the Exercise Price.
(b) Avoidance of Certain Actions. The Company will not, by
amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, stock exchange, issue or sale of
securities or otherwise, avoid or take any
4
<PAGE>
action which would have the effect of avoiding the observance or performance of
any of the terms to be observed or performed hereunder by the Company, but will
at all times in good faith assist in carrying out all of the provisions of this
Warrant and in taking all of such action as may be necessary or appropriate in
order to protect the rights of the Warrantholder against dilution or other
impairment of his rights hereunder.
(c) Communication to Shareholders. Any notice, document or
other written communication given or made by the Company to all holders of
Common Stock as such shall at the same time be provided to the Warrantholder.
6. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon exercise hereof, the Company
shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the Current Market Price of one share of Common Stock.
As used in this Warrant, "Current Market Price" of one share of Common
Stock means the average of the daily closing prices of the Common Stock for the
thirty (30) trading days before such date. The closing price for each day shall
be the last sale price of shares of Common Stock, regular way, on such date or,
if no such sale takes place on such date, the average of the closing bid and
asked prices thereof on such date, in each case as officially reported on the
principal national securities exchange on which the Common Stock is then listed
or admitted to trading.
7. Registered Holder; Transfer of Warrants or Warrant Shares.
(a) Maintenance of Registration Books; Ownership of this
Warrant. The Company shall keep at its principal office a register in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration, transfer and exchange of this Warrant. The Company
shall not at any time, except upon the dissolution, liquidation or winding-up of
the Company, close such register so as to result in preventing or delaying the
exercise or transfer of this Warrant.
The Company may deem and treat the person in whose name this Warrant is
registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration or transfer as provided in this
Section 7 or Section 8.
(b) Exchange and Replacement. This Warrant is exchangeable
upon surrender hereof by the registered holder to the Company at its principal
office for new Warrants of like tenor and date representing in the aggregate the
right to purchase the number of shares purchasable hereunder, each of such new
Warrants to represent the right to purchase such number of shares as shall be
designated by said registered holder at the time of surrender. Subject to
compliance with the provisions of Sections 7 and 8, this Warrant and all rights
hereunder are transferable in whole or in part to any one or more family members
of the Warrantholder (or trusts maintained for the benefit of any one or more
such family members) upon the books of the
5
<PAGE>
Company by the registered holder hereof in person or by duly authorized
attorney, and a new Warrant shall be made and delivered by the Company, of the
same tenor and date as this Warrant but registered in the name of the
transferee, upon surrender of this Warrant, duly endorsed, to said office of the
Company, but are not transferable under any other circumstances. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and upon surrender and cancellation
of this Warrant, if mutilated, the Company will make and deliver a new Warrant
of like tenor, in lieu of this Warrant, without requiring the posting of any
bond or the giving of any other security. This Warrant shall be promptly
cancelled by the Company upon the surrender hereof in connection with any
exchange, transfer or replacement. The Company shall pay all expenses, taxes and
other charges payable in connection with the preparation, execution and delivery
of Warrants pursuant to this Section 7.
(c) Warrants, Warrant Shares and Note Shares Not Registered.
The Warrantholder, by accepting this Warrant, (i) acknowledges that this
Warrant, the Warrant Shares and the Note Shares (as defined in Section 8(a)
hereof) are not being registered under the Securities Act of 1933, as amended
(the "Securities Act"), and (ii) represents and warrants that (A) he is an
"accredited investor" (as defined in the rules and regulations under the
Securities Act), (B) he is acquiring the Warrants and, upon exercise, the
Warrant Shares, for investment and not with a view toward the resale or
distribution thereof, and (C) he will not sell (i) any of the Warrants, except
for transfers to family members (or trusts, family limited partnerships limited
liability companies or limited liability partnerships maintained on their
behalf) in transactions exempt from registration under federal and state
securities laws, or (ii) any of the Warrant Shares or Note Shares, except in
transactions exempt from registration under federal and state securities laws or
pursuant to an effective registration statement pursuant to such laws.
Notwithstanding any provisions contained in this Warrant to the
contrary, this Warrant, the Warrant Shares and Note Shares shall not be
transferable except upon the conditions specified in this Section 7 and Section
8, which conditions are intended, among other things, to insure compliance with
the provisions of the Securities Act in respect of the transfer of this Warrant
or of such Warrant Shares and Note Shares.
(d) Restrictions on Transfer.
(i) Each Warrant shall be stamped or otherwise
imprinted with the legend set forth on the first page of this Warrant.
(ii) Each stock certificate representing Warrant
Shares shall be stamped or otherwise imprinted with the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS AND MUST BE HELD INDEFINITELY UNLESS
SUBSEQUENTLY REGISTERED UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR DISPOSED OF PURSUANT
6
<PAGE>
TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
(iii) No Warrant may be transferred, except to family
members (or trusts, family limited partnerships, limited liability companies or
limited liability partnerships maintained on their behalf) in transactions
exempt from registration under federal and state securities laws. The
Warrantholder agrees that prior to any transfer of this Warrant (as permitted by
the preceding sentence), Warrant Shares or Note Shares, the Warrantholder will
give written notice to the Company of his intention to effect such a transfer,
describing such intended transfer, and that such Warrantholder will not sell or
transfer any or all of this Warrant, Warrant Shares or Note Shares without first
delivering to the Company (A) an opinion of counsel skilled in securities
matters (selected by such Warrantholder and reasonably satisfactory to the
Company), to the effect that such sale or transfer will be exempt from the
registration and prospectus delivery requirements of the Securities Act and in
compliance with applicable state securities laws, or (B) an interpretative
letter from the Securities and Exchange Commission (the "Commission") to the
effect that the proposed transfer may be made without registration under the
Securities Act; and (C) an agreement by the transferee to be bound by the
provisions of this Warrant, including, without limitation, this Section 7
relating to transfers, and restrictions on transfers, of the Warrants, Warrant
Shares and Note Shares; provided, however, that the provisions of this Section
7(d)(iii) shall not apply with respect to any Warrant Shares or Note Shares as
to which there is a registration statement in effect under the Securities Act at
the time of the proposed transfer.
8. Registration.
(a) Registrable Securities. As used in this Section 8. the
term "Registrable Securities" shall mean all Warrant Shares acquired by the
Warrantholder upon exercise of the Warrants, together with all shares of Common
Stock issued by the Company, if any, in payment for the Promissory Note dated
April 11, 1996 issued to the Warrantholder pursuant to the Purchase Agreement
(the "Note Shares"); provided that any such Warrant Share or Note Share shall be
deemed to be Registrable Securities only if and so long as it is a security that
(i) has not been sold to or through a broker, dealer or underwriter in a public
distribution or other public securities transaction or sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Rule 144 promulgated thereunder (or any successor rule) and
(ii) may not be sold or transferred pursuant to Rule 144(k) (or any successor
rule). For purposes of this Section 8, Warrant Shares and Note Shares shall
include shares of Common Stock, whether or not such securities have in fact been
issued, and stock or other securities of the Company issued upon conversion of,
in a stock split or reclassification of, or a stock dividend or other
distribution on, or in substitution or exchange for, or as a dividend or other
distribution with respect to, or otherwise in connection with, such Warrant
Shares and Note Shares or in a merger or consolidation involving the Company's
assets. For the purpose of this Section 8, a Warrantholder of record shall be
treated as the record holder of the related Warrant Shares then issuable upon
the conversion or exercise thereof. The only class of securities which the
Company is obligated to register under this Section 8 is Common Stock issuable
upon exercise of the Warrants or constituting Note Shares.
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(b) Required Registration.
(i) Demand Period. Whenever the Company shall receive
a written request therefor from the Warrantholder, which request shall be dated
and made no earlier than January 2, 1999 and no later than the earlier of (A)
ninety (90) days prior to the date the Warrantholder anticipates the first sale
of Registrable Securities and (B) June 10, 1999 (the "Demand Period"), the
Company shall promptly prepare and file a registration statement under the
Securities Act covering the Registrable Securities and shall use its reasonable
best efforts to cause such registration statement to become effective within the
ninety (90) days following the Company's receipt of such request (but in no
event prior to the date of issuance of any Registrable Securities). The Company
shall not be obligated to prepare, file and cause to become effective more than
one (1) registration statement covering the Registrable Securities hereunder.
(ii) Blackout Period. From time to time, from the
commencement of the Demand Period through the Termination Date (as defined in
Section 8(c)(i) hereof), the Company shall have the right, by written notice to
the Warrantholder in each case, (i) to delay the filing of a registration
statement pursuant to Section 8(b) or suspend its obligations with respect to
any filed registration statement under Section 8(c) and/or (ii) to request that
any holder of Registrable Securities (each such holder, a "Selling Holder")
discontinue dispositions of Registrable Securities until further notice, in
writing, from the Company (and each Selling Holder hereby agrees to discontinue
any distributions forthwith), if in the good faith judgment of the Company's
Board of Directors it would be adverse to the Company for such registration
statement to be filed, or for an effective registration statement to be amended
(by incorporation by reference to other documents or otherwise) in order to
continue to permit dispositions of Registrable Securities in compliance with
applicable securities laws, because such filing or amendment would interfere
with any bona fide financing, acquisition, corporate reorganization or other
material transaction involving the Company or any of its subsidiaries or would
compel premature disclosure thereof or any other significant corporate
development; provided, however, that the Company shall have the right to defer
such filing or to require discontinuance of such dispositions of Registrable
Securities for a period or periods not to exceed 120 days in the aggregate in
any one calendar year from January 2, 1999 through the Termination Date.
(c) Registration Procedures. If and whenever the Company is
required by the provisions of Section 8(b) to effect the registration of
Registrable Securities under the Securities Act, the Company will, at its
expense, as expeditiously as possible:
(i) In accordance with the Securities Act and the
rules and regulations of the Commission (as defined in Section 7(d)(iii)
hereof), prepare and file with the Commission a registration statement on Form
S-3 or other form of registration statement appropriate with respect to such
securities and, so long as the Warrantholder complies with the provisions of
Section 8(d) below, use its reasonable best efforts to cause such registration
statement to become and remain effective until the earlier of (x) two (2) years
after the date it first becomes effective or (y) the date on which all
securities covered by such registration statement have been sold (such earlier
date, the "Termination Date"), and prepare and file with
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the Commission such amendments to such registration statement and supplements to
the prospectus contained therein as may be necessary to keep such registration
statement effective and such registration statement and prospectus accurate and
complete;
(ii) If the offering is to be underwritten, enter
into a written underwriting agreement on customary terms with the Selling
Holders participating in such offering and the underwriter in form and substance
reasonably satisfactory to the managing underwriter of the public offering and
the holders of a majority of the Registrable Securities participating in such
offering;
(iii) Furnish to the Selling Holders participating in
such registration and to the underwriters of the securities being registered
such reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters and
Selling Holders may reasonably request in order to facilitate the public
offering of such securities;
(iv) Use its reasonable best efforts to register or
qualify the securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating Selling
Holders and underwriters may reasonably request; provided, however, that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to taxation or general service of process in any such jurisdiction
where it is not then so subject;
(v) Notify the Selling Holders participating in such
registration, promptly after it shall receive notice thereof, of the date and
time when such registration statement and each post-effective amendment thereto
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(vi) Notify such Selling Holders promptly of any
request by the Commission for the amendment or supplementation of such
registration statement or prospectus or for additional information;
(vii) Prepare and promptly file with the Commission,
and promptly notify such Selling Holders of the filing of, such amendments or
supplements to such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities Act, any
event has occurred as the result of which any such prospectus or any other
prospectus as then in effect may include an untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading;
(viii) In case any of such Selling Holders or any
underwriter for any such Selling Holders is required to deliver a prospectus at
a time when the prospectus then in circulation is not in compliance with the
Securities Act or the rules and regulations of the Commission, prepare promptly
upon request such amendments or supplements to such
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<PAGE>
registration statement and such prospectus as may be necessary in order for such
prospectus to comply with the requirements of the Securities Act and such rules
and regulations;
(ix) Advise such Selling Holders, promptly after it
shall receive notice or obtain knowledge thereof, of We issuance of any stop
order by the Commission suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for that purpose
and promptly use its reasonable best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued;
(x) If requested by the managing underwriter or
underwriters or holders of a majority of the Registrable Securities being sold
in connection with an underwritten offering, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriters and the holders of a majority of the Registrable
Securities being sold agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including information
with respect to the Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) Cooperate with the Selling Holders and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
(xii) Prepare a prospectus supplement or
post-effective amendment to the registration statement or the related prospectus
or any document incorporated therein by reference or file any other required
documents so that, as thereafter delivered to the purchasers of the Registrable
Securities, the prospectus will not contain an untrue statement of material fact
or omit to state any material fact necessary to make the statements therein not
misleading;
(xiii) Enter into such customary agreements
(including an underwriting agreement) in customary form and take all such other
actions in connection therewith as are reasonable in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement in entered into and whether
or not the registration is an underwritten registration:
(A) make such representations and warranties
to the holders of such Registrable Securities and the underwriters, if
any, in form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings;
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(B) if an underwriting agreement is entered
into, the same shall set forth in full the indemnification provisions and
procedures of Section 8(e) hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) the Company shall deliver such documents
and certificates as may be requested by the holders of the majority of the
Registrable Securities being sold and the managing underwriters, if any,
to evidence compliance with the terms of this Section 8(C) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(xiv) Make available for inspection by a
representative of the Selling Holders to be included in the registration
statement, any underwriter participating in any disposition pursuant to a
registration statement, and any attorney or accountant retained by the Company
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with the
preparation of the registration statement; provided, that any records,
information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such persons unless disclosure of
such records, information or documents is required by court or administrative
order, in which event such persons shall provide the Company with prompt prior
written notice of such requirement and shall cooperate with the Company so that
the Company may seek a protective order or other appropriate remedy ("Protective
Action"). In the event the Company fails to seek Protective Action, or such
Protective Action is not obtained, such persons shall exercise reasonable best
efforts to obtain assurance that confidential treatment will be accorded those
records, information or documents which they are required to disclose by such
court or administrative order;
(xv) Otherwise use its commercially reasonable best
efforts to comply with all applicable rules and regulations of the Commission,
and make generally available to the Company's security holders, earning
statements satisfying the provisions of Section 11 (a) of the Securities Act no
later than forty-five (45) days after the end of any twelve (12) month period
(or ninety (90) days, if such a period is a fiscal year) (1) commencing at the
end of any fiscal quarter in which Registrable Securities is sold to
underwriters in an underwritten offering, or, if not sold to underwriters in
such an offering, (ii) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of a registration statement;
(xvi) At the request of any such Selling Holder (1)
furnish to such Selling Holder on the effective date of the registration
statement or, if such registration includes an underwritten public offering, at
the closing provided for in the underwriting agreement, an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the Selling Holder
or
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Holders making such request, covering such matters with respect to the
registration statement, the prospectus and each amendment or supplement thereto,
proceedings under state and federal securities laws, other matters relating to
the Company, the securities being registered and the offer and sale of such
securities as are customarily the subject of opinions of issuer's counsel
provided to underwriters in underwritten public offerings, and (ii) use its
commercially reasonable best efforts to furnish to such Selling Holder letters
in customary form dated each such effective date and such dosing date, from the
independent certified public accountants of the Company, addressed to the
underwriters, if any, and to the Selling Holder or Holders making such request,
stating that they are independent certified public accountants within the
meaning of the Securities Act and dealing with such matters of the type
customarily covered by such "cold comfort letters" as the underwriters may
reasonably request, or, if the offering is not underwritten, as such requesting
holder or holders may reasonably request; and
(xvii) Use its reasonable best efforts to cause all
such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed,
(d) Agreements by Warrantholder and Selling Holders. The
Warrantholder, and each Selling Holder, agrees:
(i) subsequent to registration, to provide the
Company with periodic notice, at least monthly, of his intent to sell
Registrable Securities and, whenever reasonably possible, at least three (3)
days prior to the date of his intended sale of Registrable Securities;
(ii) upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 8(c)(vii)-(ix)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Holder's receipt of copies of the
supplemented or amended prospectus contemplated by Section 8(c)(xii) hereof,
and, if so directed by the Company, such Selling Holder will deliver to the
Company all copies, other than permanent file copies then in such Selling
Holders possession, of the most recent prospectus covering such Registrable
Securities at the time of receipt of such notice; and
(iii) prior to participating in any underwritten
registration hereunder he shall (A) agree to sell his securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (B) complete and execute all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required of him under the terms of such underwriting
arrangements and this Warrant.
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(e) Indemnification.
(i) The Company hereby agrees to indemnify each
Selling Holder and each person, if any, who controls such Selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") in connection with a
registration of any of the Registrable Securities against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, preliminary or final prospectus, or
other document incident to any such registration, qualification or compliance
(or in any related registration statement, notification or the like) or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
any violation by the Company of the Securities Act, the Exchange Act and any
state securities law or any rule or regulation promulgated thereunder,
applicable to the Company, and relating to action or inaction with respect to an
action required of the Company in connection with such registration, and to
reimburse the Selling Holder for any reasonable legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action upon submission by the Selling Holder
of documentation supporting such reasonable expenses; provided, however, that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or action arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
a Selling Holder or on his behalf specifically for inclusion in such
registration statement; provided, further, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Selling Holder from whom the person asserting such claim, loss,
damage, liability or action purchased the Registrable Securities if it is
determined that it was the responsibility of such Selling Holder to provide such
person with a current copy of the prospectus and such current copy of the
prospectus would have cured the defect giving rise to such claim, loss, damage,
liability or action. The Company also agrees to indemnify any underwriters of
the Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Selling Holder provided in this Section 8(e)(i).
(ii) Each Selling Holder agrees, severally but not
jointly, to indemnify the Company and its officers and directors and each
person, if any, who controls any thereof within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and their respective successors
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement of a material fact
contained in any prospectus, offering circular or other document incident to any
registration, qualification or compliance relating to any Registrable Securities
(or in any related registration statement, notification or the like) or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and to
reimburse the Company and each other person indemnified pursuant to this
subsection (A) for any reasonable legal and any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action; provided, however, that this subsection (B) shall
apply only if (and only to the extent that) such statement or omission was
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<PAGE>
made in reliance upon written information (including, without limitation,
written negative responses to inquiries) furnished to the Company by such
Selling Holder or on his behalf specifically for use in such prospectus, or
other document incident to any such registration, qualification or compliance
(or in any related registration statement, notification or the like) or any
amendment or supplement thereto. Each Selling Holder also agrees to indemnify
and hold harmless any underwriters of the Registrable Securities, their officers
and directors and each person who controls such underwriters on substantially
the same basis as that of the indemnification of the Company by provided in this
Section 8(e)(ii). Anything in, this Agreement contained to the contrary
notwithstanding, the liability of each Selling Holder for indemnification or
contribution hereunder shall be limited to the amount of proceeds received by
such Selling Holder in the offering giving rise to such liability.
(iii) Each party entitled to indemnification
hereunder (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party (at such Indemnifying Party's
expense) to assume the defense of any claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be reasonably satisfactory to the
Indemnified Party, and the Indemnified Party may participate in such defense at
such party's expense, and, provided, further, that the omission by any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 8(e) except to the
extent that the omission results in a failure of actual notice to the
Indemnifying Party and such Indemnifying Party is materially damaged solely as a
result of the failure to give notice. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
(iv) If the indemnification provided for in this
Section 8(e) is unavailable or insufficient to hold harmless an Indemnified
Party in respect of any losses, claims, damages, liabilities, expenses or
actions in respect thereof referred to herein, then the Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities, expenses or actions in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand, and the Indemnified Party on the other, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities, expenses or actions as well as any other relevant equitable
considerations, including the failure to give the notice required hereunder. The
relative fault of the Indemnifying Party and the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party and the parties, relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Warrantholder and each Selling Holder
agree that it would not be just and equitable if contributions pursuant to this
Section 8(e) were determined by pro rata allocation or by any other method of
allocation which did not take account of the equitable
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considerations referred to above. The amount paid or payable to an Indemnified
Party as a result of the losses, claims, damages, liabilities or actions in
respect thereof, referred to above, shall be deemed to include any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
contribution provisions of this Section 8(e), in no event shall the amount
contributed by any Selling Holder exceed the aggregate net offering proceeds
received by such Selling Holder from the sale of Registrable Securities to which
such contribution or indemnification claim relates. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
(f) Rule 144. The Company covenants that it will file, on a
timely basis, any reports required to be filed by it under the Securities Act
and the Exchange Act, and that it will take any such other actions as are
reasonably necessary in order for Rule 144 (or any successor rule) to be
available with respect to a public sale of Registrable Securities without
registration under the Securities Act. The Company hereby agrees that upon the
receipt by it of an opinion of counsel for a Selling Holder of Registrable
Securities to the effect that such Registrable Securities are eligible for sale
pursuant to the provisions of subparagraph (k) of Rule 144 (or any successor
rule), it will promptly take such actions as are necessary to provide said
Selling Holder with unlegended certificates representing the Registrable
Securities which are the subject of said opinions, and that it will promptly
remove all stop transfer instructions with respect thereto.
(g) Stockholder Information. The Company may require each
holder of Registrable Securities as to which any registration is to be effected
pursuant to this Section 8 to furnish the Company such information with respect
to such holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
9. Representations and Warranties of the Company. The Company hereby
represents and warrants to and covenants with the Warrantholder, and each holder
of Warrant Shares and Note Shares that:
(a) Organization and Capitalization of the Company. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. As of the date hereof, the authorized
capital of the Company consists of 20 million shares of Common Stock (of which
11,654,333 shares are outstanding as of the date hereof) and 1 million shares of
Preferred Stock (none of which shares are outstanding as of the date hereof). As
of the date hereof, no unissued shares of Common Stock are reserved for any
purpose other than for issuance upon the exercise of the Warrants and except as
indicated on Schedule A hereto. As of the date hereof, the Company has not
issued or agreed to issue any stock purchase rights or convertible securities
other than the Warrants and, except as indicated on Schedule A hereto, and there
are no preemptive rights in effect with respect to the issuance of any shares of
Common Stock. All the outstanding shares of Common Stock and Preferred Stock
have been validly issued without violation of any preemptive or similar rights,
are fully paid and
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nonassessable and have been issued in compliance with all federal and applicable
state securities laws.
(b) Authority. The Company has full corporate power and
authority to execute and deliver this Warrant, to issue the shares of Common
Stock issuable upon exercise of this Warrant or in payment of the Note, and to
perform all of its obligations hereunder, and the execution, delivery and
performance hereof has been duly authorized by all necessary corporate action on
its part. This Warrant has been duly executed on behalf of the Company and
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms.
(c) No Legal Bar. Neither the execution, delivery or
performance of this Warrant nor the issuance of the shares of Common Stock
issuable upon exercise of this Warrant or in payment of the Note will (A)
conflict with or result in a violation of the Certificate of Incorporation or
By-Laws of the Company, (B) conflict with or result in a violation of any law,
statute, regulation, order or decree applicable to the Company or any affiliate
which violation would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or the Company's ability to complete the
transactions contemplated hereby, (C) require any consent or authorization or
filing with, or other act by or in respect of any governmental authority or (D)
result in a breach of, constitute a default under or constitute an event
creating rights of acceleration, termination or cancellation under any mortgage,
lease, contract, franchise, instrument or other agreement to which the Company
is a party or by which it is bound the effect of which would have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(d) Validity of Shares. When issued upon the exercise of this
Warrant as contemplated herein or when issued in payment of the Note, the shares
of Common Stock so issued will have been validly issued and will be fully paid
and nonassessable. On the date hereof, the par value of the Common Stock is less
than the Exercise Price per share of Common Stock.
10. Continuing Validity. A holder of Warrant Shares shall continue to
be entitled to all rights to which a Warrantholder is entitled pursuant to the
provisions of this Warrant except such rights as by their terms apply solely to
a Warrantholder, notwithstanding the fact that this Warrant has been exercised
or the period of exercisability has expired. The Company will, at the time of
any exercise of this Warrant, upon the request of the holder of the Warrant
Shares issued upon exercise hereof, acknowledge in writing, in form reasonably
satisfactory to such holder, the Company's continuing obligation to afford to
such holder all rights to which such holder shall continue to be entitled after
such exercise in accordance with the provisions of this Warrant; provided,
however, that if such holder shall fail to make any such request such failure
shall not affect the continuing obligation of the Company to afford to such
holder all such rights.
11. Miscellaneous Provisions.
(a) Governing Law and Venue. This Warrant shall be deemed to
have been made in the State of Connecticut and the validity of this Warrant, the
construction, interpretation, and enforcement thereof, and the rights of the
parties thereto shall be determined
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under, governed by, and construed in accordance with the internal laws of the
State of Connecticut, without regard to principles of conflicts of law. The
parties agree that any action or proceeding arising in connection with this
Warrant shall be tried and litigated in the state or federal courts located in
the County of Fairfield, State of Connecticut. Service of process, sufficient
for personal jurisdiction in any action against the Company, may be made by
registered or certified mail, return receipt requested, to its address indicated
in Section 11 (b).
(b) Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given when received if
personally delivered; when transmitted if transmitted by telecopy, electronic or
digital transmission method; the day after it is sent, if sent for next day
delivery to a domestic address by recognized overnight delivery service (FedEx);
and upon receipt, if sent by certified or registered mail, return receipt
requested. In each case notice shall be sent to:
If to the Company to:
The Cooper Companies, Inc.
6140 Stoneridge Mall Road
Pleasanton, CA 94588
Attention: Carol R. Kaufman, Chief Administrative Officer
Fax: 1510-460-3662
With a copy to:
CooperSurgical, Inc.
15 Forest Parkway
Shelton, CT 06484
Attention: Nicholas J. Pichotta, President
Fax: 1203-926-4383
To the Warrantholder or Holder of Warrant Shares:
At the address of such holder as it appears on the records of the
Company
With a copy to:
Kelley Drye & Warren
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901-3229
Robert A. Horowitz, Esq.
Fax: 1203-327-2669
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or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
(c) Successors and Assigns. This Warrant shall not be
transferrable by the Warrantholder except to a family member, or trust
maintained for the benefit of such family member. This Warrant shall be binding
upon and inure to the benefit of the Company, the Warrantholder and the holders
of Warrant Shares and Note Shares and the successors, assigns and transferees of
the Company, and the assignees and transferees as permitted hereunder of the
Warrantholder and the holders of Warrant Shares and Note Shares.
(d) Entire Agreement; Amendments and Waivers. This Warrant
sets forth the entire understanding of the parties with respect to the
transactions contemplated hereby. The failure of any party to seek redress for
the violation or to insist upon the strict performance of any term of this
Warrant shall not constitute a waiver of such term and such party shall be
entitled to enforce such term without regard to such forbearance. This Warrant
may be amended, the Company may take any action herein prohibited or omit to
take action herein required to be performed by it, and any breach of or
compliance with any covenant, agreement, warranty or representation may be
waived, upon the written consent or written waiver of the Warrantholder(s) of a
majority in interest of the Warrants.
(e) Severability. If any term of this Warrant as applied to
any person or to any circumstance is prohibited, void, invalid or unenforceable
in any jurisdiction, such term shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or invalidity without in any way affecting any
other term of this Warrant or affecting the validity or enforceability of this
Warrant or of such provision in any other jurisdiction.
(f) Headings. The headings in this Warrant are inserted only
for convenience of reference and shall not be used in the construction of any of
its terms.
18
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officers on this 11th day of April, 1996.
THE COOPER COMPANIES, INC.,
a Delaware Corporation
By: /s/ Robert S. Weiss
----------------------------
Name: Robert S. Weiss
---------------------
Title: Executive VP -- CFO
---------------------
Attest:
/s/ Carol R. Kaufman
- -----------------------------------
Carol R. Kaufman
Accepted:
/s/ Anthony W. Hemming
- -----------------------------------
Anthony W. Hemming
19
<PAGE>
SCHEDULE A
POTENTIALLY ISSUABLE SHARES OF COMMON STOCK
<TABLE>
<CAPTION>
No. of Shares
-------------
<S> <C>
Convertible Debentures - $9,290,000 principal amount convertible at $15 619,333
per share
Outstanding Stock Options 342,863
Non-Employee Director Restricted Stock Plans shares available for grant 176,357
1988 Long Term Incentive Plan Shares available for grant 916,091
1994 Warrants 26,666
1996 Warrants 83,333
Note Shares To be determined by the
Company in its sole
discretion prior to
April 11, 1999
</TABLE>
<PAGE>
Exhibit 5.1
[LETTERHEAD OF LATHAM & WATKINS]
June 16, 1999
The Cooper Companies, Inc.
6140 Stoneridge Mall Road
Pleasanton, CA 94588
Re: The Cooper Companies, Inc.
83,333 shares of Common Stock, par value $.10 per share
Ladies/Gentlemen:
In connection with the registration of 83,333 shares of common
stock, par value $.10 per share, (the "Shares") of The Cooper Companies, Inc.
(the "Company") issued to a certain stockholder of the Company, and 83,333
rights (the "Rights") to acquire 833.33 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 the date hereof (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.
<PAGE>
LATHAM & WATKINS
The Cooper Companies, Inc.
June 16, 1999
Page 2
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. 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,
including statutory and reported decisional law thereunder, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of any
other laws.
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,
1997 between The Cooper Companies, Inc. and American Stock Transfer & Trust
Company, are validly issued.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
<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 into the
registration statement on Form S-3 to register 83,333 shares of common stock
and to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
--------------
KPMG LLP
San Francisco, California
June 15, 1999
