<PAGE>
As filed with the Securities and Exchange Commission on April 6, 2000
REGISTRATION NO. 333-
================================================================================
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)
<TABLE>
<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
<TABLE>
<CAPTION>
============================================================================================================================
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
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($0.10 par value) 24,586 $32.75 $805,191.50 $213.00
- ----------------------------------------------------------------------------------------------------------------------------
Preferred Stock Purchase Rights (2) 24,586 Not applicable (2) $100
============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of registration
fee, based on the average of the high and low prices for the Common Stock
as reported on the New York Stock Exchange, Inc. on April 4, 2000, in
accordance with Rule 457(c) promulgated under the Securities Act of 1933.
(2) Rights to acquire shares of the Registrant's Series A Junior Participating
Preferred Stock are attached to and trade with the Common Stock of the
Registrant. Value attributable to such Rights, if any, is reflected in the
market price of the Common Stock. Fee paid represents the minimum statutory
fee pursuant to Section 6(b) of the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDER MAY NOT RESELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND THIS PROSPECTUS IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 6, 2000
THE COOPER COMPANIES, INC.
24,586 SHARES OF COMMON STOCK
($.10 Par Value Per Share)
This prospectus relates to up to 24,586 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 the selling stockholders named in this
prospectus. 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 stockholders
directly or through one or more broker-dealers, in one or more transactions on
the New York Stock Exchange, Inc., 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 stockholders will pay any applicable underwriting fees,
discounts or commissions and transfer taxes, as well as the fees and
disbursements of their counsel and experts.
Our common stock is listed on the New York Stock Exchange, Inc., and
the Pacific Exchange, Inc. On April 5, 2000 the last reported sale price for our
common stock as reported on the New York Stock Exchange composite tape was
$34 1/2 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 April , 2000
------------------
<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,
1999;
-- the portions of our 1999 annual report to stockholders that have
been incorporated by reference into the Form 10-K referenced
above;
-- the portions of our proxy statement for our annual meeting of
stockholders held March 28, 2000 that have been incorporated by
reference into the annual report on Form 10-K referenced above;
-- quarterly report on Form 10-Q for the quarterly period ended
January 31, 2000;
-- current reports on Form 8-K filed on December 21, 1999, February
2, 2000, February 28, 2000 and April 4, 2000;
-- 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. To
identify forward-looking statements, look for words like "believes," "expects,"
"may," "will," "should," "seeks," "approximately," "intends," "plans,"
"estimates" or "anticipates" and similar words or phrases. Discussions of
strategy, plans or intentions often contain forward-looking statements. These,
and all forward-looking statements, necessarily depend on assumptions, data or
methods that may be incorrect or imprecise.
Events, among others, that could cause actual results and future
actions to differ materially from those described by or contemplated in the
forward-looking statements include major changes in business conditions and
the economy, loss of key senior management, major
3
<PAGE>
disruptions in the operations of our manufacturing facilities, new competitors
or technologies, significant disruptions caused by third parties failing to
address the year 2000 issue, or by problems with our year 2000 compliance
program, the impact of an undetected virus on our computer systems, acquisition
integration costs, foreign currency exchange exposure, 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 other factors described in our Securities
and Exchange Commission filings, including the "Business" section in our Form
10-K for the year ended October 31, 1999 and the related portions of our 1999
Annual Report to Stockholders incorporated by reference.
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.
As of March 31, 2000, we had outstanding options to purchase 1,769,028
shares of common stock, 1,139,484 of which were exercisable as of that date. 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.
THE SELLING STOCKHOLDERS
The 24,586 shares of our common stock to be offered under this
prospectus are owned by the selling stockholders listed in the table below. The
selling stockholders acquired the common stock in connection with the merger of
Marlow Surgical Technologies, Inc., an Ohio corporation, with and into Marlow
Acquisition Corp., a Delaware corporation and our wholly owned
4
<PAGE>
subsidiary. Under the Agreement and Plan of Merger, we agreed to issue the
additional shares of common stock listed below to the selling stockholders
promptly following the third anniversary of the date of the Agreement and Plan
of Merger and to file a registration statement covering the shares of common
stock.
Because the selling stockholders may sell all or some portion of the
common stock covered by this prospectus, we cannot estimate the number of
shares, and the percentage of outstanding shares of common stock, that will be
held by any of them after any particular sale.
The following table identifies each selling stockholder and sets forth
information to our knowledge as of the date of this prospectus with respect to
the number of shares of common stock held by each stockholder prior to the
offering and the number of shares of common stock to be offered under this
prospectus from time to time by each selling stockholder. Clifford A. Marlow,
Scott C. Marlow and Mike Lanese are an Executive Vice President, the Director of
Product Development and a sales representative, respectively, of CooperSurgical.
<TABLE>
<CAPTION>
PERCENTAGE OF
OUR
SHARES OF OUTSTANDING
COMMON STOCK COMMON STOCK
OWNED PRIOR TO OWNED PRIOR TO NUMBER OF
SELLING STOCKHOLDER THE OFFERING THE OFFERING SHARES OFFERED
- ------------------------------------ -------------- --------------- ----------------
<S> <C> <C> <C>
Clifford A. Marlow................... 8,721 * 12,776
Scott C. Marlow...................... 8,500 * 4,823
Richard L. Hart...................... -- * 885
Stanley Pollack...................... -- * 3,357
James F. Daniell..................... 732 * 125
Marcus Tower......................... 4,395 * 750
H.M. Hasson, M.D..................... 732 * 125
L&G Enterprises, a Kentucky Corp..... 732 * 125
Robert E. Stone, M.D................. -- * 125
Betsy Anne Shimberg.................. -- * 49
Catherine Ann Liberman............... -- * 49
Kurt Allen Marlow.................... -- * 73
Kevin Patrick Marlow................. -- * 73
Kasey Hart Marlow.................... -- * 73
Shakuntala Rao....................... 1,171 * 199
Dinkar Rao as Custodian for Seema Rao *
Under the Uniform Gifts to
Minors Act ......................... 292 * 49
Jaclyn Elizabeth Marlow.............. -- * 49
</TABLE>
5
<PAGE>
<TABLE>
<S> <C> <C> <C>
Marcus E. Tower and Deborah R. Tower as
Custodians for Katherine Tower Under
the Uniform Gifts to Minor Acts...... 293 * 49
Marcus E. Tower and Deborah R. Tower as
Custodians for M. Ryan Tower Under the
Uniform Gifts to Minor Acts.......... 293 * 49
Marcus E. Tower and Deborah R. Tower as
Custodians for Colin Edward Tower.... 293 * 49
Dinkar Rao........................... 284 * 46
Mike Lanese.......................... -- * 34
Art Goddard.......................... -- * 34
Mark Curtis.......................... -- * 137
Gerald Greene........................ 40 * 137
Michael Naughton..................... -- * 346
</TABLE>
- ---------------
* Less than 1%
PLAN OF DISTRIBUTION
The shares of common stock offered by this prospectus are being sold by
the selling stockholders for their 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
stockholders may be made from time to time by the selling stockholders directly
or through one or more brokers, agents, or dealers in one or more transactions
(which may involve crosses and block transactions) on the New York Stock
Exchange, Inc., 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 stockholders 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 stockholders or purchaser of
the shares for whom they may act as agents.
6
<PAGE>
We have advised each of the selling stockholders 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
each of the selling stockholders that in the event of a "distribution" of its
shares, the selling stockholders 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
stockholders 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 stockholders. The selling
stockholders also may sell our common stock short and deliver the shares to
close out short positions. The selling stockholders 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 stockholders may transfer the shares to a donee and any
donee would become a selling stockholder under this prospectus.
We will bear all expenses of the offering of the shares, except that
the selling stockholders will pay any applicable underwriting fees, discounts or
commissions and transfer taxes, as well as the fees and disbursements of counsel
to and experts for the selling stockholders.
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, 1999 and 1998 and for each of
the years in the three-year period ended October 31, 1999 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.
7
<PAGE>
================================================================================
NEITHER WE NOR THE SELLING STOCKHOLDERS 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.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.......................... 2
Incorporation of Certain
Information by Reference..................... 2
Forward-Looking Statements..................... 3
Risk Factors................................... 4
The Company.................................... 4
The Selling Stockholders....................... 4
Plan of Distribution........................... 6
Legal Matters.................................. 7
Experts........................................ 7
</TABLE>
================================================================================
================================================================================
24,586 SHARES
THE COOPER COMPANIES, INC.
COMMON STOCK
------------------
PROSPECTUS
------------------
April , 2000
================================================================================
8
<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.
<TABLE>
<S> <C>
Securities Act Registration Fee................................. $ 313
Accounting Fees and Expenses.................................... 2,500
Legal Fees and Expenses (other than Blue Sky)................... 10,000
Printing Fees and Expenses ..................................... 500
Miscellaneous................................................... 1,687
Total........................................................... $15,000
</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
II-1
<PAGE>
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
II-2
<PAGE>
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>
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.
(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
II-5
<PAGE>
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 5th day of
April, 2000.
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 Director April 5, 2000
- ---------------------------------
A. Thomas Bender (Principal Executive Officer)
/s/ Robert S. Weiss Executive Vice President, Treasurer, Chief April 5, 2000
- -----------------------------------
Robert S. Weiss Financial Officer and Director (Principal
Financial Officer)
/s/ Stephen C. Whiteford Vice President and Corporate Controller April 5, 2000
- -------------------------------- (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 April 5, 2000
- ------------------------------
Allan E. Rubenstein, M.D.
/s/ Michael H. Kalkstein Director April 5, 2000
- ---------------------------------
Michael H. Kalkstein
/s/ Donald Press Director April 5, 2000
- ---------------------------------
Donald Press
/s/ Moses Marx Director April 5, 2000
- ---------------------------------
Moses Marx
/s/ Steven Rosenberg Director April 5, 2000
- ---------------------------------
Steven Rosenberg
Director April 5, 2000
- ---------------------------------
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.
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>
[LATHAM & WATKINS LETTERHEAD]
April 6, 2000
The Cooper Companies, Inc.
6140 Stoneridge Mall Road
Pleasanton, CA 94588
Re: The Cooper Companies, Inc.
24,586 shares of Common Stock, par value $.10 per share
Ladies/Gentlemen:
In connection with the registration of 24,586 shares of common
stock, par value $.10 per share, (the "Shares") of The Cooper Companies, Inc.
(the "Company") issued to certain stockholders of the Company, and 24,586 rights
(the "Rights") to acquire 245.86 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>
The Cooper Companies, Inc.
The Cooper Companies, Inc.
April 6, 2000
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 and
to the reference to our firm under the heading "Experts".
/s/ KPMG LLP
KPMG LLP
San Francisco, California
April 4, 2000
