<PAGE> 1
As filed with the Securities and Exchange Commission on January 30, 1996
Registration No. 33-
----------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------
DATASCOPE CORP.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-2529596
- ------------------------------- -------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
14 Philips Parkway, Montvale, New Jersey 07645-9998
---------------------------------------------------
(Address of principal executive offices) (Zip Code)
DATASCOPE CORP. 1995 STOCK OPTION PLAN
--------------------------------------
(Full title of the Plan)
<TABLE>
<S> <C> <C>
Lawrence Saper With a Gerald Adler, Esq.
Chairman of the Board and President copy to: Shereff, Friedman, Hoffman & Goodman, LLP
Datascope Corp. 919 Third Avenue
14 Philips Parkway New York, New York 10022
Montvale, New Jersey 07645-9998 (212) 758-9500
(201) 391-8100
</TABLE>
------------------------------------------
(Name, address and telephone number,
including area code, of agents for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Title of Proposed Proposed Maximum
Securities to Amount to Maximum Offering Aggregate Amount of
be Registered be Registered Price Per Share(1) Offering Price Registration Fee
------------- ------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par
value $0.01 per share 750,000 shares $21.875 $16,406,250 $5,657.33
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), on the basis of the average of the high and low prices
of the Registrant's Common Stock as quoted on the NASDAQ National Market on
January 26, 1996.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have been filed by Datascope
Corp., a Delaware corporation (the "Registrant"), with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended June 30, 1995, which is the Registrant's latest Annual Report
on Form 10-K filed pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Quarterly Reports on Form 10-Q for
the fiscal quarter ended September 30, 1995.
(c) The description of the Registrant's Common Stock, par
value $0.01 per share, contained in the Registrant's Registration Statement on
Form 8-A filed with the Commission, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all of the securities offered under this Registration Statement have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this Registration Statement
as of the date of the filing of such documents. Any statement contained in the
documents incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded, shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
2
<PAGE> 3
Item 6. Indemnification of Directors and Officers
The indemnification of officers and directors of the
Registrant is governed by Section 145 of the General Corporation Law of the
State of Delaware (the "DGCL") and the Certificate of Incorporation and By-laws
of the Registrant. Among other things, the DGCL permits indemnification of a
director, officer, employee or agent in civil, criminal, administrative or
investigative actions, suits or proceedings (other than an action by or in the
right of the corporation) to which such person is a party or is threatened to be
made a party by reason of the fact of such relationship with the corporation or
the fact that such person is or was serving in a similar capacity with another
entity at the request of the corporation against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, if he had no reasonable cause
to believe his conduct was unlawful. No indemnification may be made in any such
suit to any person adjudged to be liable to the corporation unless and only to
the extent that the Delaware Court of Chancery or the court in which the action
was brought determines that, despite the adjudication of liability but in view
of all of the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Under the DGCL, to the extent that a director, officer, employee or agent is
successful, on the merits or otherwise, in the defense of any action, suit or
proceeding or any claim, issue or matter therein (whether or not the suit is
brought by or in the right of the corporation), he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him. In
all cases in which indemnification is permitted (unless ordered by a court), it
may be made by the corporation only as authorized in the specific case upon a
determination that the applicable standard of conduct has been met by the party
to be indemnified. The determination must be made by a majority vote of a quorum
consisting of the directors who were not parties to the action or, if such a
quorum is not obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or by
the shareholders. The statute authorizes the corporation to pay expenses
incurred by an officer or director in advance of a final disposition of a
proceeding upon receipt of an undertaking by or on behalf of the person to whom
the advance will be made, to repay the advances if it shall ultimately be
determined that he was not entitled to indemnification. The DGCL provides that
indemnification and advances of expenses permitted thereunder are not to be
exclusive of any rights to which those seeking indemnification or advancement of
expenses may be entitled under any By-law, agreement, vote of stockholders or
disinterested directors, or otherwise. The DGCL also authorizes the corporation
to purchase and maintain liability insurance on behalf of its directors,
officers, employees and agents regardless of whether the corporation would have
the statutory power to indemnify such persons against the liabilities insured.
The Certificate of Incorporation of the Registrant (the
"Certificate"), provides that no director of the Registrant shall be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of Section 174 of the DGCL or (iv) for any transaction
from which the director derived an improper personal benefit.
3
<PAGE> 4
The Registrant's By-laws provide that the Registrant shall
indemnify an officer or director for any costs incurred by such officer or
director in connection with a proceeding against such officer or director by
reason of the fact that he is or was an officer or director of the Registrant,
unless such indemnification is prohibited under applicable law. Pursuant to the
By-laws, the Registrant may also be required to advance funds to an officer or
director who is entitled to indemnification upon receipt of an undertaking by or
on behalf of the officer or director to repay the amount if it is ultimately
determined that such person is not entitled to indemnification. The By-laws
further provide that the Registrant may provide indemnification or the
advancement of expenses to any other person as permitted by applicable law. Such
By-law provisions are intended to be broader than the statutory indemnification
provided in the DGCL. However, the extent to which such broader indemnification
may be permissible under Delaware law has not been established.
The Registrant maintains a Directors & Officers Liability
policy. The policy's coverage, among other things, (i) provides for payment on
behalf of the Registrant's officers and directors against loss as defined in the
policy stemming from acts committed by directors and officers in their
capacities as such, with no annual individual deductible element per director or
officer, and (ii) provides for reimbursement of the Registrant against such loss
for which the Registrant grants indemnification to any director or officer, as
permitted or required by law, with a retention of $250,000 per claim. In
addition, the maximum coverage with respect to any loss is $10,000,000,
including defense costs, and the maximum coverage with respect to all losses
occurring in any policy year is also $10,000,000. There is no coverage for loss
from claims made against directors or officers arising from certain statutory
liabilities and specified categories of misconduct, including claims (i) for the
return of remuneration paid without prior shareholder approval if it is
judicially determined that such remuneration was in violation of law, (ii) for
an accounting of profits made from a purchase or sale within the meaning of
Section 16(b) of the Exchange Act, (iii) with respect to acts of active and
deliberate dishonesty that were committed or attempted with actual dishonest
purpose, or (iv) with respect to a judicial determination that the individual
gained personal profit or other advantage to which he was not legally entitled.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
Exhibit
Number Description
4 Datascope Corp. 1995 Stock Option Plan
5 Opinion of Shereff, Friedman, Hoffman &
Goodman, LLP.
23.1 Consent of Deloitte & Touche, LLP
4
<PAGE> 5
23.2 Consent of Shereff, Friedman, Hoffman &
Goodman, LLP (included in Exhibit 5.)
24 Power of Attorney (included in signature
page to this Registration Statement.)
Item 9. 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 this Registration
Statement (or the most recent post-
effective amendment thereof) which,
individually or in the aggregate,
represent a fundamental change in
the information set forth in this
Registration Statement.
Notwithstanding the foregoing, any
increase or decrease in volume of
securities offered (if the total
dollar value of securities offered
would not exceed that which was
registered) and any deviation from
the low or high end of the
estimated maximum offering range
may be reflected in the form of
prospectus filed with the
Commission pursuant to Rule 424(b)
if, in the aggregate, the changes
in volume and price represent no
more than a 20% change in the
maximum aggregate offering price
set forth in the "Calculation of
Registration Fee" table in the
effective registration statement;
(iii) To include any material information
with respect to the plan of
distribution not previously
disclosed in this Registration
Statement or any material change to
such information in this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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.
5
<PAGE> 6
(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 the 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 Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) 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 Securities
Act of 1933 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,
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 Securities Act of 1933
and will be governed by the final adjudication of such issue.
6
<PAGE> 7
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 the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Montvale, State of New Jersey, on this 30th day
of January, 1996.
DATASCOPE CORP.
By: /s/ Lawrence Saper
-------------------------
Lawrence Saper
Chairman of the Board
and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
whose signature appears below constitutes and appoints Lawrence Saper and Murray
Pitkowsky, and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution for him and on his behalf, and in his name, place and stead,
in any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents or any of
them or their or his substitute, may lawfully do or cause to be done by virtue
hereof and the Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name and Signature Title Date
------------------ ----- ----
<S> <C> <C>
/s/ Lawrence Saper Chairman of the Board, January 30, 1996
- -------------------------- President and Director
Lawrence Saper (Principal Executive Officer)
/s/ Murray Pitkowsky Senior Vice President, January 30, 1996
- -------------------------- Secretary
Murray Pitkowsky
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ Stephen E. Wasserman Vice President, Treasurer, Chief January 30, 1996
- ----------------------------- Financial Officer, President -
Stephen E. Wasserman Patient Monitoring Division
(Principal Financial and
Accounting Officer)
/s/ David Altschiller Director January 30, 1996
- -----------------------------
David Altschiller
/s/ William L. Asmundson Director January 30, 1996
- -----------------------------
William L. Asmundson
/s/ Joseph Grayzel, M.D. Director January 30, 1996
- -----------------------------
Joseph Grayzel, M.D.
/s/ George Heller Director January 30, 1996
- -----------------------------
George Heller
/s/ Norman M. Schneider Director January 30, 1996
- -----------------------------
Norman M. Schneider
</TABLE>
<PAGE> 9
DATASCOPE CORP.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit Page
------- ------------
<S> <C> <C>
4. Datascope Corp. 1995 Stock Option Plan
5 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP
(included in Exhibit 5.)
24 Power of Attorney (included in signature page to this
Registration Statement.)
</TABLE>
<PAGE> 1
Exhibit 4
---------
DATASCOPE CORP.
1995 STOCK OPTION PLAN
(as of September 19, 1995)
1. Purpose. The 1995 Stock Option Plan (the "Plan") of
Datascope Corp. (the "Company"), a Delaware corporation, is designed to aid the
Company and its subsidiaries in retaining and attracting personnel of
exceptional ability by enabling key employees to purchase a proprietary interest
in the Company, thereby stimulating in such individuals an increased desire to
render greater services which will contribute to the continued growth and
success of the Company and its subsidiaries. Certain of the options to be
granted under the Plan are intended to satisfy the requirements for
classification as "Incentive Stock Options" as defined in Section 422, of the
Internal Revenue Code of 1986, as amended (the "Code"). (An option granted under
the Plan which is intended to satisfy the requirements for classification as an
Incentive Stock Option shall be referred to herein as a "Plan Incentive Stock
Option.").
2. Amount and Source of Stock. The aggregate number and class
of shares which may be the subject of options granted pursuant to the Plan is
750,000 shares ("Shares") of Common Stock, par value $.01 per share, of the
Company, subject to adjustment as provided in paragraph 10, all of which may be
subject to Plan Incentive Stock Options. Any one participant may be granted
Options to purchase a maximum of 150,000 Shares in any one year, subject to
adjustment as provided in paragraph 10. Such Shares may be reserved or made
available from the Company's authorized and unissued Shares or from
1
<PAGE> 2
Shares reacquired and held in the Company's treasury. In the event that any
option granted hereunder shall terminate prior to its exercise in full, for any
reason, including, without limitation, an option exchange pursuant to paragraph
13 hereof, or in the event that any Shares issued upon the exercise of an option
granted hereunder shall be reacquired by the Company as provided in paragraph 12
hereof, then the Shares subject to the option so exercised or the Shares so
reacquired shall be added to the Shares otherwise available for issuance
pursuant to the exercise of options under the Plan; provided, however, that in
the case of a cancellation or termination of an option in the same fiscal year
that such option was granted (or for purposes of determining the maximum number
of options which may be granted to a participant under the Plan, the
cancellation or termination of an option at any time), both the canceled option
and the newly granted option shall be counted in determining whether the
participant has received the maximum number of options permitted to be issued to
any one participant under the Plan.
3. Administration of the Plan. The Plan shall be administered
by a committee of the Board of Directors of the Company (the "Board") comprised
of three or more members of the Board, selected by the Board (the "Committee").
All of the members of the Committee shall be both "disinterested persons" as
that term is described in Rule 16b-3(c)(2) (or any successor provision)
promulgated under the Securities Exchange Act of 1934, as amended, and "outside
directors" as that term is defined for purposes of Section 162(m) of the Code
(or any successor provision).
The Committee shall have full authority to interpret the Plan,
to establish and amend rules and regulations relating to it, to determine the
key employees to whom options
2
<PAGE> 3
may be granted under the Plan, to select from among the eligible individuals
those to whom options are to be granted, to determine the terms and provisions
of the respective option agreements (which need not be identical) and to make
all other determinations necessary or advisable for the administration of the
Plan. The Committee, with approval by the Board, shall have full authority to
amend the Plan; provided, however, that any amendment that (i) increases the
number of Shares that may be the subject of stock options granted under the
Plan, (ii) expands that class of individuals eligible to receive options under
the Plan, (iii) increases the period during which options may be granted or the
permissible term of options under the Plan, (iv) decreases the minimum exercise
price of such options, or (v) would require the approval of shareholders in
order for options granted under the Plan to satisfy the requirements for
performance based compensation for purposes of Code Section 162(m)(4)(C) (or
successor provision) shall only be adopted by the Committee subject to Board and
shareholder approval. No amendment to the Plan shall, without the consent of the
holder of an existing option, materially and adversely affect his or her rights
under any option. The date on which the Committee, adopts resolutions granting
an option to a specified individual shall constitute the date of grant of such
option (the "Date of Grant"); provided, however, that if the grant of an option
is made subject to the occurrence of a subsequent event (such as, for example,
the commencement of employment), the date on which such subsequent event occurs
shall be the Date of Grant. Such resolutions shall also specify whether the
option is or is not intended to qualify as a Plan Incentive Stock Option;
provided, however, that in the event no such specification is made in such
resolutions the Committee, will be deemed to have specified that such option is
intended to qualify as a Plan
3
<PAGE> 4
Incentive Stock Option; provided, further, however that in the event the Code's
requirements for qualification as an Incentive Stock Option are inconsistent
with the terms of an option that is specified, whether explicitly or implicitly,
as intended to qualify as a Plan Incentive Stock Option, then such specification
shall be deemed changed to the minimum extent necessary to be consistent with
such requirements of the Code. The adoption of any such resolution by the
majority of the members of the Committee shall complete the necessary corporate
action constituting the grant of said option and an offer of Shares for-sale to
said individual under the Plan.
4. Eligibility. All officers and key employees of the Company
or subsidiaries of the Company, as determined by the Committee, shall be
eligible to receive options hereunder; provided, however, that no Plan Incentive
Stock Option shall be granted hereunder to any person who, together with his
spouse, children and trusts and custodial accounts for their benefit,
immediately at the time of the grant of such option and assuming its immediate
exercise, would beneficially own, within the meaning of Section 424(d) of the
Code, Shares possessing more than ten percent (10%) of the total combined voting
power of all of the outstanding Common Stock of the Company ("Ten Percent
Shareholder"), unless the option granted to the Ten Percent Shareholder
satisfies the additional conditions for options granted to Ten Percent
Shareholders set forth in subparagraphs 5(a) and 6(a) hereof. For purposes of
the Plan, a subsidiary shall mean any "subsidiary corporation" as defined in
Section 424(f) of the Code or, with respect to any option under the Plan that is
not an Incentive Stock Option, any partnership of which the Company or any
subsidiary of the Company is a general partner. From time to time the Committee
shall, in its sole discretion,
4
<PAGE> 5
within the applicable limits of the Plan, select from among the eligible
individuals those persons to whom options shall be granted under the Plan, the
number of Shares subject to each option, and the exercise price, terms and
conditions of any options to be granted hereunder.
5. Option Price; Maximum Grant.
(a) The exercise price for the Shares purchasable under
options granted pursuant to the Plan shall not be less than 100%, or, in the
case of a Plan Incentive Stock Option granted to a Ten Percent Shareholder, 110%
of the fair market value per share of the Shares subject to option under the
Plan at the Date of Grant, solely as determined by the Committee in good faith.
The exercise price for options granted pursuant to the Plan shall be subject to
adjustment as provided in paragraph 10.
(b) To the extent necessary for any Plan Incentive Stock
Options to qualify as Incentive Stock Options, the aggregate fair market value,
determined as of the Date of Grant, of the Shares subject to such options which
may first become exercisable by an individual in any calendar year, under this
Plan and all other stock option plans of the Company and of any parent or
subsidiary of the Company pursuant to which Incentive Stock Options may be
granted shall not exceed $100,000.
6. Term of Option.
(a) Subject to the provisions of the Plan, the Committee shall
have absolute discretion in determining the period during which, the rate at
which and the terms and conditions upon which any option granted hereunder may
be exercised, and whether any option exercisable in installments is to be
exercisable on a cumulative or noncumulative
5
<PAGE> 6
basis; provided, however, that no option granted hereunder shall be exercisable
for a period exceeding ten (10) years or, in the case of a Plan Incentive Stock
Option granted to a Ten Percent Shareholder, five (5) years from the Date of
Grant. Unless the resolution granting an option provides otherwise, each option
granted hereunder shall, subject to the provisions of paragraph 8 hereof, be
exercisable for a period of ten (10) years or, in the case of a Plan Incentive
Stock Option granted to a Ten Percent Shareholder, five (5) years from the Date
of Grant.
(b) The grant of options by the Committee shall be effective
as of the date on which the Committee, shall authorize the option; provided,
however, that no options granted hereunder shall be exercisable unless and until
the holders shall enter into individual option agreements with the Company that
shall set forth the terms and conditions of such options. Each such agreement
shall expressly incorporate by reference the provisions of this Plan and shall
state that in the event of any inconsistency between the provisions hereof and
the provisions of such agreement, the provisions of this Plan shall govern.
7. Exercise of Options. An option shall be exercised when
written notice of such exercise, signed by the person entitled to exercise the
option, has been delivered or transmitted by registered or certified mail to the
Secretary of the Company at its then principal office. Said notice shall specify
the number of Shares for which the option is being exercised and shall be
accompanied by (i) such documentation, if any, as may be required by the Company
as provided in subparagraph 11(b), and (ii) payment of the aggregate option
price. Such payment shall be in the form of (i) cash or a certified check
(unless such certification is waived by the Company) payable to the order of the
Company in the amount
6
<PAGE> 7
of the aggregate option price, (ii) certificates duly endorsed for transfer
(with all transfer taxes paid or provided for) evidencing a number of shares of
Common Stock of the Company of which the aggregate market value on the date of
exercise is equal to the aggregate option exercise price of the shares being
purchased, or (iii) a combination of these methods of payment. Delivery of said
notice shall constitute an irrevocable election to purchase the Shares specified
in said notice, and the date on which the Company receives the last of said
notice, documentation and the aggregate option exercise price for all of the
shares covered by the notice shall, subject to the provisions of paragraph 11
hereof, be the date as of which the Shares so purchased shall be deemed to have
been issued. The person entitled to exercise the option shall not have the right
or status as a holder of the Shares to which such exercise relates prior to
receipt by the Company of the payment, notice and documentation expressly
referred to in this paragraph 7.
8. Exercise and Cancellation of Options Upon Termination of
Employment or Death. Except as set forth below, if a holder shall voluntarily or
involuntarily terminate his service as an employee of the Company or any
subsidiary of the Company, the option of such holder shall terminate upon the
date of such termination of employment regardless of the expiration date
specified in such option. If the termination of employment is due to retirement
(as defined by the Committee in its sole discretion), the holder shall have the
privilege of exercising any option that which the holder could have exercised on
the day upon which he ceased to be an employee of the Company or any subsidiary
of the Company, provided, however, that such exercise must be accomplished
within the term of such option and within three (3) months of the holder's
retirement. If the termination of employment is
7
<PAGE> 8
due to disability (to an extent and in a manner as shall be determined by the
Committee in its sole discretion), he (or his duly appointed guardian or
conservator) shall have the privilege of exercising any option that he could
have exercised on the day upon which he ceased to be an employee of the Company
or any subsidiary of the Company; provided, however, that such exercise must be
accomplished within the term of such option and within one (1) year of the
termination of his employment with the Company or any subsidiary of the Company.
If the termination of employment is due to the death of the holder, the duly
appointed executor or administrator of his estate shall have the privilege at
any time of exercising any option that the holder could have exercised on the
date of his death; provided, however, that such exercise must be accomplished
within the term of such option and within one (1) year of the holder's death.
For all purposes of the Plan, an approved leave of absence shall not constitute
interruption or termination of employment. Nothing contained herein or in any
option agreement shall be construed to confer on any option holder any right to
be continued in the employ of the Company or any subsidiary of the Company or
derogate from any right of the Company or any subsidiary of the Company to
retire, request the resignation of or discharge such option holder or to lay off
or require a leave of absence of such option holder (with or without pay), at
any time, with or without cause.
8A. Election to Have Shares Withheld.
(a) A holder may elect to have Shares withheld by the Company
in order to satisfy federal and state withholding tax liability (a "share
withholding election"), provided, (i) the Committee shall not have revoked its
advance approval of the holder's share withholding election; and (ii) the share
withholding election is made on or prior to the date
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<PAGE> 9
on which the amount of withholding tax liability is determined (the "Tax Date").
If a holder elects within thirty (30) days of the date of exercise to be subject
to withholding tax on the exercise date pursuant to the provisions of Section
83(b) of the Code, then the share withholding election may be made during such
thirty (30) day period. Notwithstanding the foregoing, a holder whose
transactions in Common Stock are subject to Section 16(b) of the Securities
Exchange Act of 1934 may make a share withholding election only if the following
additional conditions are met: (i) the share withholding election is made no
sooner than six (6) months after the Date of Grant, except, however, such six
(6) month condition shall not apply if the holder's death or disability (as
shall be determined by the Committee) occurs within such six (6) month period;
and (ii) the share withholding election is made (x) at least six (6) months
prior to the Tax Date, (y) during the period beginning on the third business day
following the date of release of the Company's quarterly or annual financial
results and ending on the twelfth business day following such date.
(b) A share withholding election shall be deemed made when
written notice of such election, signed by the holder, has been hand delivered
or transmitted by registered or certified mail to the Secretary of the Company
at its then principal office. Delivery of said notice shall constitute an
irrevocable election to have Shares withheld.
(c) Upon exercise of an option by a holder, the Company shall
transfer the total number of Shares subject to the option to the holder on the
date of exercise, provided, however, that pursuant to subparagraph (d) below,
the holder will be unconditionally obligated to tender shares back to the
Company.
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(d) If a holder has made a share withholding election pursuant
to this Section 8A; and (i) within thirty (30) days of the date of exercise of
the option, the holder elects pursuant to the provisions of Section 83(b) of the
Code to be subject to withholding tax on the date of-exercise of his option,
then such holder will be unconditionally obligated to immediately tender back to
the Company the number of Shares having an aggregate fair market value (as
determined in good faith by the Committee) equal to the amount of tax required
to be withheld plus cash for any fractional amount, together with written notice
to the Company informing the Company of the holder's election pursuant to
Section 83(b) of the Code; or (ii) if the holder has not made an election
pursuant to the provisions of Section 83(b) of the Code, then on the Tax Date,
such holder will be unconditionally obligated to tender back to the Company the
number of Shares having an aggregate fair market value (as determined in good
faith by the Committee) equal to the amount of tax required to be withheld plus
cash for any fractional amount.
9. Non-transferability of Options. No option granted under the
Plan shall be sold, pledged, assigned or transferred in any manner except to the
extent that options may be exercised by an executor or administrator as provided
in paragraph 8 hereof. An option may be exercised, during the lifetime of the
holder thereof, only by such holder or his duly appointed guardian or
conservator in the event of his disability.
10. Adjustments Upon Changes in Capitalization.
(a) If the outstanding Shares are subdivided, consolidated,
increased, decreased, changed into, or exchanged for a different number or kind
of shares or other securities of the Company through reorganization, merger,
recapitalization, reclassification,
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<PAGE> 11
capital adjustment or otherwise, or if the Company shall issue additional Shares
as a dividend or pursuant to a stock split, then the number and kind of Shares
available for issuance pursuant to the exercise of options to be granted under
this Plan and all Shares subject to the unexercised portion of any option
theretofore granted and the option price of such options shall be adjusted to
prevent the inequitable enlargement or dilution of any rights hereunder;
provided, however, that any such adjustment in outstanding options under the
Plan shall be made without change in the aggregate exercise price applicable to
the unexercised portion of any such outstanding option. No such adjustment shall
be made that (i) with respect to a Plan Incentive Stock Option, would violate
Code Section 422, or successor provision or (ii) would constitute a cancellation
and reissuance of an option for purposes of Code Section 162(m) to the extent
such reissuance would result in the grant of options in excess of the maximum
number of options permitted to be granted to any participant under the Plan.
Distributions to the Company's shareholders consisting of property other than
shares of Common Stock of the Company or its successor and distributions to
shareholders of rights to subscribe for Common Stock shall not result in the
adjustment of the Shares purchasable under outstanding options or the exercise
price of outstanding options. Adjustments under this paragraph shall be made by
the Committee whose determination thereof shall be conclusive and binding. Any
fractional Share resulting from adjustments pursuant to this paragraph shall be
eliminated from any then outstanding option. Nothing contained herein or in any
option agreement shall be construed to affect in any way the right or power of
the Company to make or become a party to any adjustments, reclassifications,
reorganizations or
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changes in its capital or business structure or to merge, consolidate, dissolve,
liquidate or otherwise transfer all or any part of its business or assets.
(b) If, in the event of a merger or consolidation, the Company
is not the surviving corporation, and in the event that the agreements governing
such merger or consolidation do not provide for the substitution of new options
or other rights in lieu of the options granted hereunder or for the express
assumption of such outstanding options by the surviving corporation, or in the
event of the dissolution or liquidation of the Company, the holder of any option
theretofore granted under this Plan shall have the right not less than five (5)
days prior to the record date for the determination of shareholders entitled to
participate in such merger, consolidation, dissolution or liquidation, to
exercise his option, in whole or in part, without regard to any installment
provision that may have been made part of the terms and conditions of such
option; provided, that any conditions precedent to such exercise set forth in
any option agreement granted under this Plan, other than the passage of time,
have been satisfied. In any such event, the Company will mail or cause to be
mailed to each holder of an option hereunder a notice specifying the date that
is to be fixed as of which all holders of record of the Shares shall be entitled
to exchange their shares for securities, cash or other property issuable or
deliverable pursuant to-such merger, consolidation, dissolution or liquidation.
Such notice-shall be mailed at least ten (10) days prior to the date therein
specified. In the event any then outstanding option is not exercised in its
entirety on or prior to the date specified therein, all remaining outstanding
options granted hereunder and any and all rights thereunder shall terminate as
of said date.
11. General Restrictions.
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(a) No option granted hereunder shall be exercisable if the
Company shall, at any time in its sole discretion, determine that (i) the
listing upon any securities exchange, registration or qualification under any
state or federal law of any Shares otherwise deliverable upon such exercise, or
(ii) the consent or approval of any regulatory body or the satisfaction of
withholding tax or other withholding liabilities, is necessary or appropriate in
connection with such exercise. In any of such events, the exercisability of such
actions shall be suspended and shall not be effective unless and until such
withholding, listing, registration, qualification or approval shall have been
effected or obtained free of any conditions not acceptable to the company in its
sole discretion, notwithstanding any termination of any option or any portion of
any option during the period when exercisability has been suspended.
(b) The Committee may require, as a condition to the right to
exercise an option, that the Company receive from the option holder, at the time
of any such exercise, representations, warranties and agreements to the effect
that the Shares are being purchased by the holder only for investment and
without any present intention to sell or otherwise distribute such Shares and
that the option holder will not dispose of such Shares in transactions which, in
the opinion of counsel to the Company, would violate the registration provisions
of the Securities Act of 1933, as then amended, and the rules and regulations
thereunder. The certificate issued to evidence such Shares shall bear
appropriate legends summarizing such restrictions on the disposition thereof.
12. Restrictions on Transfers of Shares; Repurchase by the
Company.
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(a) Without the prior written consent of the Company, the
individual exercising an option hereunder shall not sell, transfer, pledge,
hypothecate or otherwise dispose of any Shares acquired upon the exercise of
options hereunder or any interest in any such Shares within seven (7) months
following the date of such exercise. In the event that during the first six
months of such period the option holder shall, for any reason (other than
death), cease to be an officer or employee of the Company or its subsidiaries,
then forthwith upon the occurrence of such event, the Company shall have the
right for the duration of such seven month period to repurchase from the option
holder, and upon the exercise of such right, the option holder shall be required
to sell to the Company, all such Shares owned by him which are then subject to
restriction under this subparagraph 12(a) for a price equal to the aggregate
exercise price paid for such Shares. The Company may exercise its right to
repurchase shares by mailing notice of exercise to the option holder prior to
the expiration of the Company's repurchase right. In the event the Company
repurchases such Shares, the certificate or certificates evidencing such Shares
shall forthwith be delivered to the Company against full payment of the sum of
(i) an amount of money in the form of cash or check equal to the amount, if any,
paid by the optionee in cash or check as payment of the exercise price, and (ii)
a number of Shares equal to the number of Shares, if any, paid by the optionee
as payment of the exercise price, without regard to the then fair market value
of such Shares. In the event the optionee had paid the option exercise price, in
whole or in part, in Shares, then the Company shall delay such repurchase until
six (6) months and ten (10) days from the date the optionee ceased to be an
officer or employee of the Company or its subsidiaries.
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<PAGE> 15
(b) The certificate or certificates delivered to individuals
who exercise options hereunder to evidence Shares acquired upon any exercise of
an option (as provided in paragraph 7 hereof) shall bear, in addition to any
restrictive legend required by subparagraph 11(b) hereof, a legend summarizing
the restrictions set forth in subparagraph (a) of this paragraph 12.
(c) In the event of the death of an option holder, all
restrictions set forth in subparagraph (a) and provided for in subparagraph (b)
of this paragraph shall terminate forthwith with respect to any and all Shares
owned by such holder at the date of his death, but neither the termination of
such restrictions upon the death of the holder nor any lapse of restrictions
upon the expiration of any period specified in subparagraph 12(a) hereof shall
affect the obligations of the holder (or his executor or administrator) to
comply with the requirements of subparagraph 11(b) in connection with any sale
or other disposition of any such Shares.
(d) Anything in the Plan to the contrary notwithstanding, the
Committee, shall have the power, in its discretion, to lessen or eliminate the
period of time during which the transfer of a holder's Shares is restricted
under, and/or to eliminate or modify in the holder's favor the Company's right
to repurchase Shares pursuant to, this paragraph 12, whether before or after any
option is granted or exercised hereunder.
13. Exchange of Options. The Committee shall have the right to
grant options hereunder that are granted subject to the condition that the
grantee shall agree with the Company to terminate all or a portion of another
option or options previously granted under the Plan. The Shares that had been
issuable pursuant to the exercise of the option
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<PAGE> 16
terminated in the exchange of options shall, upon such termination, again become
available for issuance pursuant to the exercise of options under the Plan.
14. Termination. Unless the Plan shall theretofore have been
terminated as hereinafter provided, the Plan shall terminate on September 18,
2005, and no options under the Plan shall thereafter be granted, provided,
however, the Board at any time may, in its sole discretion, terminate the Plan
prior to the foregoing date. No termination of the Plan shall, without the
consent of the holder of an existing option, materially and adversely affect his
rights under such option.
The Plan shall be submitted to the shareholders of the Company
for approval in accordance with the applicable provisions of the Delaware
General Corporation Law as promptly as practicable and in any event within one
year after the date of the original adoption hereof by the Board. Any options
granted hereunder prior to such shareholder approval shall not be exercisable
unless and until such approval is obtained. If such approval is not obtained
within such time period, the Plan and any options granted hereunder shall be
terminated.
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Exhibit 5
---------
[LETTERHEAD OF SHEREFF FRIEDMAN HOFFMAN & GOODMAN, LLP]
January 29, 1996
Datascope Corp.
14 Philips Parkway
Montvale, New Jersey 07645-9998
Ladies and Gentlemen:
Datascope Corp., a Delaware corporation (the "Company"), intends to
transmit for filing with the Securities and Exchange Commission a registration
statement under the Securities Act of 1933, as amended, on Form S-8 (the
"Registration Statement") which relates to 750,000 shares of common stock, par
value $.01 per share, of the Company ("Common Stock"), which may be issued upon
the exercise of options granted pursuant to the Datascope Corp. 1995 Stock
Option Plan (the "1995 Plan"). This opinion is an exhibit to the Registration
Statement.
We act as corporate and securities counsel to the Company and in such
capacity have participated in various corporate and other proceedings relating
to the Company. We have taken part in the preparation or have examined copies of
the Company's Restated Certificate of Incorporation and amendments thereto, its
by-laws as presently in effect, minutes of meetings of its directors,
stockholders and committees and such other documents and instruments relating to
the Company and the proposed issuance of the shares of Common Stock as we have
deemed necessary under the circumstances, in each case signed, certified or
otherwise proved to our satisfaction. Insofar as this opinion relates to
securities to be issued in the future, we have assumed that all applicable laws,
rules and regulations in effect at the time of such issuance are the same as
such laws, rules and regulations in effect as of the date hereof.
We note that we are members of the Bar of the State of New York and
that we are not admitted to the Bar of any other state. Insofar as this opinion
may involve the laws of the State of Delaware, our opinion is based solely upon
our reading of the Delaware General Corporation Law as reported in the
Prentice-Hall Corporation Law Service.
<PAGE> 2
Datascope Corp.
January 29, 1996
Page 2
Based on the foregoing, and subject to and in reliance on the accuracy
and completeness of the information relevant thereto provided to us, it is our
opinion that the shares of Common Stock to be issued upon the exercise of
options granted pursuant to the 1995 Plan have been duly authorized, and
(subject to the effectiveness of the Registration Statement and compliance with
applicable state securities laws) when issued in accordance with the terms of
the 1995 Plan, and any option agreements executed pursuant thereto, will be
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to any filing made by the Company under
the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes, except as expressly provided in the
preceding paragraph. This opinion is as of the date hereof and we disclaim any
undertaking to update this opinion after the date hereof.
Very truly yours,
/s/ Shereff, Friedman, Hoffman & Goodman, LLP
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SFH&G:GA:SMZ:ALK
<PAGE> 1
Exhibit 23.1
------------
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and Stockholders
of Datascope Corp.
We consent to the incorporation by reference in this Registration Statement of
Datascope Corp. on Form S-8 of our report dated July 26, 1995, appearing in the
Annual Report on Form 10-K of Datascope Corp. for the year ended June 30, 1995.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
New York, New York
January 29, 1996
