<PAGE> 1
As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DATASCOPE CORP.
(Exact name of issuer 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 07465
(Address of Principal Executive Offices) (Zip Code)
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DATASCOPE CORP.
COMPENSATION PLAN FOR
NON-EMPLOYEE DIRECTORS
(Full title of the plan)
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<TABLE>
<S> <C> <C>
Lawrence Saper With a copy to: Gerald Adler, Esq.
Chairman of the Board Shereff, Friedman, Hoffman &
President and Chief Executive Officer Goodman, LLP
Datascope Corp. 919 Third Avenue
14 Philips Parkway New York, New York 10022
Montvale, New Jersey 07465-9998 (212) 758-9500
(201) 391-8100
</TABLE>
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Price Aggregate Amount of
to be Registered to be Registered(1) Per Share(2) Offering Price(2) Registration Fee(3)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 25,000 shares $27.125 $678,125.00 $200.05
par value $.01 per share
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) 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
sale prices of the Registrant's Common Stock as included on The NASDAQ
National Market on December 18, 1997.
(3) The Registration Fee has been calculated pursuant to Rule 457(h) as
follows: .000295 multiplied by 25,000 multiplied by $27.125, the average
of the high and low sale prices of the Registrant's Common Stock as
included on The NASDAQ National Market on December 18, 1997.
<PAGE> 2
PART II.
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that 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) Annual Report on Form 10-K for the fiscal year ended
June 30, 1997.
(b) Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1997.
(c) Current Report on Form 8-K, filed October 22, 1997.
(d) The description of the Registrant's Common Stock, par
value $.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 Securities Exchange Act of 1934, as
amended (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 such 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. Interest of Named Experts and Counsel.
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Not applicable
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.
Subsection (a) of DGCL Section 145 empowers a corporation to indemnify any
person 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) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful.
Subsection (b) of DGCL Section 145 empowers a corporation to
indemnify any person 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 the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware 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 the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
DGCL Section 145 further provides that to the extent that a present
or former director or officer is successful, on the merits or otherwise, in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
of Section 145, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith. In all cases in
which indemnification is permitted under subsections (a) and (b) of Section 145
(unless ordered by a court), it shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is
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proper in the circumstances because the applicable standard of conduct has been
met by the party to be indemnified. Such determination must be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders. The statute authorizes the corporation to pay expenses
incurred by an officer or director in advance of the 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. DGCL Section 145 also
provides that indemnification and advancement of expenses permitted thereunder
are not to be exclusive of any other 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. DGCL
Section 145 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.
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 Bylaws, 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 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
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<PAGE> 5
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
4.1 Datascope Corp. Compensation Plan for Non-Employee
Directors.
5.1 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 5.1).
24.1 Power of Attorney (included in signature page to
this registration statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(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;
(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 Securities Exchange
Act of 1934 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.
(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 Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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.
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<PAGE> 7
(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 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.
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<PAGE> 8
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 19th day of
December, 1997.
DATASCOPE CORP.
By: /s/ Murray Pitkowsky
-------------------------------------
Murray Pitkowsky
Senior Vice President, Chief Financial
Officer and Secretary
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<PAGE> 9
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 attorneys-in-fact and
agents (with full power of each of them to act alone) 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
attorneys-in-fact and agents or any of them or their or his substitute or
substitutes, 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, the
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Lawrence Saper
- ------------------------ Chairman of the Board, President, December 19, 1997
Lawrence Saper Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Murray Pitkowsky
- ------------------------ Senior Vice President, Chief December 19, 1997
Murray Pitkowsky Financial Officer and Secretary
/s/ Alan Abramson
- ------------------------ Director December 19, 1997
Alan Abramson
/s/ David Altschiller
- ------------------------ Director December 19, 1997
David Altschiller
/s/ William Asmundson
- ------------------------ Director December 19, 1997
William Asmundson
/s/ Joseph Grayzel, M.D.
- ------------------------ Director December 19, 1997
Joseph Grayzel, M.D.
/s/ George Heller
- ------------------------ Director December 19, 1997
George Heller
/s/ Arno Nash
- ------------------------ Director December 19, 1997
Arno Nash
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<PAGE> 10
DATASCOPE CORP.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4.1 Datascope Corp. Compensation Plan for Non-Employee
Directors.
5.1 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 5.1).
24.1 Power of Attorney (included in signature page to this
registration statement).
<PAGE> 1
EXHIBIT 4.1
DATASCOPE CORP.
COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS (the "Plan")
(as of September 18, 1997)
Section 1. Eligibility. Each member of the Board of Directors (the
"Board") of Datascope Corp. (the "Company") who is not an employee of, or
consultant to, the Company or any of its divisions or subsidiaries (an "Eligible
Director") is eligible to participate in the Plan.
Section 2. Purpose. The purpose of the Plan is to advance the
interests of the Company and its stockholders by compensating and providing
incentives, which are linked directly to increases in stockholder value, to
Eligible Directors for services rendered, time expended and for risks assumed
and value added, in order that they will be encouraged to serve on the Board and
exert their best efforts on behalf of the Company, thus enhancing the value of
the Company for the benefit of the Company's stockholders.
Section 3. Shares Subject to Plan. Except as otherwise set forth
herein, the Company shall not be required to reserve or otherwise set aside
funds or shares of common stock, par value $.01 per share, of the Company
("Common Stock") for the payment of its obligations hereunder. The aggregate
number of shares of Common Stock that may be issued pursuant to the Plan shall
not exceed 25,000, subject to adjustment upon the occurrence of adjustments to
the outstanding Common Stock described in Section 11(e) hereof. At all times
during the term of the Plan, the Company shall reserve and keep available for
issuance such number of shares of Common Stock, adjusted in accordance with
Section 11(e) hereof, as applicable (each a "Share"), as the Company is
obligated to issue pursuant to the Plan. Common Stock issued under the Plan may
consist, in whole or in part, of authorized and unissued Shares or treasury
Shares, as determined in the sole and absolute discretion of the Board. No
fractional Shares shall be issued under the Plan.
Section 4. Administration. (a) Generally. The Plan shall be
administered, construed and interpreted by the Board. Pursuant to such
authorization, the Board shall have the responsibility for carrying out the
terms of the Plan, including but not limited to, the determination of the annual
retainer to be paid to all Eligible Directors (the "Annual Fixed Director
Compensation"). The Annual Fixed Director Compensation shall be $24,000 per
Eligible Director. To the extent permitted under the securities laws applicable
to compensation plans including, without limitation, the requirements of Section
16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or under the Internal Revenue Code of 1986, as amended (the "Code"), the
Compensation Committee of the Board, or a subcommittee of the Compensation
Committee, may exercise the discretion granted to the Board under the Plan,
provided that the composition of such Committee or subcommittee shall satisfy
the requirements of Rule 16b-3 under the Exchange Act, or any successor rule or
regulation. The Board may also
<PAGE> 2
designate a plan administrator to manage the record keeping and other routine
administrative duties under the Plan.
(b) Reliance and Indemnification of Board Members. The Board
may employ attorneys, consultants, accountants or other persons, and the Board,
the Company and its officers and directors shall be entitled to rely upon the
advice, opinions or valuations of any such persons. No member of the Board shall
be personally liable for any action, determination or interpretation taken or
made in good faith by the Board with respect to the Plan or Annual Fixed
Director Compensation granted hereunder, and all members of the Board shall be
fully indemnified and protected by the Company in respect of any such action,
determination or interpretation.
Section 5. Compensation. Annual Fixed Director Compensation payable
to Eligible Directors for services rendered as a director during a calendar
year, if not deferred pursuant to Section 6 of the Plan, shall be paid partly in
Shares of Common Stock and partly in cash. Payment shall be made annually, on
the tenth business day following the end of the calendar year for which the
compensation is payable, to each Eligible Director who served as a director
during such calendar year and who was a director on the last day of such
calendar year; provided that, if an Eligible Director for any reason does not
serve a full calendar year, the Annual Fixed Director Compensation for such
incomplete calendar year shall be pro-rated based on the number of full months
during which the Eligible Director served as a director, and the payment
therefor shall be made, if not deferred pursuant to Section 6 of the Plan, on
the tenth business day following the end of the calendar year for which the
pro-rated Annual Fixed Director Compensation is payable. The amount of any
payment to be made in cash shall equal the result obtained by multiplying (x)
the Annual Fixed Director Compensation by (y) the maximum Federal income tax
rate in effect at such time that is applicable to individuals, which rate shall
be determined from time to time by the Board, with the advice of tax counsel. As
of the date of hereof, such rate is 39.6%. The number of Shares to be
transferred to the Eligible Director in payment of the balance of such payment
of Annual Fixed Director Compensation shall be determined in the manner set
forth in Section 7(a).
Section 6. Election to Defer.
(a) Time of Election. As soon as practicable prior to the
beginning of a calendar year, an Eligible Director may elect to defer
compensation to be received pursuant to the Plan by directing that all of the
Annual Fixed Director Compensation which otherwise would have been payable in
accordance with Section 5 above during such calendar year and succeeding
calendar years shall be credited to a deferred compensation account (the
"Director's Account"). Under a valid election, such deferred Compensation shall
be payable entirely in Shares of Common Stock, determined in accordance with
Section 7(a) below. Any person who shall become an Eligible Director during any
calendar year, and who was not an Eligible Director of the Company prior to the
beginning of such calendar year, may elect, within 30 days after his or her term
begins, to defer payment of all his or her Annual Fixed Director Compensation
earned
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<PAGE> 3
during the remainder of such calendar year and for succeeding calendar years.
(b) Form and Duration of Election. An election to defer Annual
Fixed Director Compensation shall be made by written notice executed by the
Eligible Director and filed with the Secretary of the Company. Such election
shall continue until the Eligible Director terminates such election by
subsequent written notice filed with the Secretary of the Company. Any such
election to terminate deferral shall become effective for the calendar year
following receipt of the election form by the Company and shall only be
effective with respect to Annual Fixed Director Compensation payable for
services rendered as an Eligible Director thereafter. Amounts credited to the
Director's Account prior to the effective date of termination shall not be
affected by such termination and shall be distributed only in accordance with
the terms of the Plan.
(c) Change of Election. An Eligible Director who has
terminated his or her election to defer compensation hereunder may thereafter
make another election in accordance with Section 6(a) to defer such compensation
for the calendar year subsequent to the filing of such election and succeeding
calendar years.
Section 7. The Director's Account. All Annual Fixed Director
Compensation that an Eligible Director has elected to defer under the Plan shall
be credited to the Director's Account as follows:
(a) As of the date that the payment of the Annual Fixed
Director Compensation would otherwise be payable, there shall be credited to the
Director's Account the number of full Shares of the Company's Common Stock
obtained by dividing (x) the amount of the Annual Fixed Director Compensation
for the calendar year by (y) the average of the closing price of the Common
Stock on the NASDAQ National Market on the last ten trading days of the calendar
year for which such Compensation is otherwise payable. If the amount of the
Annual Fixed Director Compensation for the calendar year is not evenly divisible
by such average closing price of the Common Stock, the balance shall be credited
to the Director's Account in cash.
(b) At the end of each calendar year, there shall be credited
to the Director's Account an amount equal to the cash dividends that would have
been paid on the number of Shares of Common Stock credited to the Director's
Account as of the dividend record date, if any, occurring during such calendar
year as if such Shares had been shares of issued and outstanding Common Stock on
such record date, and such amount shall be treated as reinvested in additional
shares of Common Stock on the dividend payment date.
(c) Cash amounts credited to the Director's Account pursuant
to subparagraphs (a) and (b) above shall accrue interest commencing from the
date the cash amounts are credited to the Director's Account at a rate per annum
to be determined from time to time by the Company. Amounts credited to the
Director's Account shall continue to accrue
3
<PAGE> 4
interest until distributed in accordance with the Plan. An Eligible Director may
be given the opportunity to make a written election to treat the existing cash
balance and interest accrued thereon as invested in additional shares of Common
Stock. The timing of the effectiveness of such election shall be subject to the
Company's discretion.
(d) An Eligible Director shall not have any interest in the
cash or Common Stock in his or her Director's Account until such cash or Common
Stock is distributed in accordance with the Plan.
Section 8. Distribution from Accounts.
(a) Form of Election. At the time an Eligible Director makes
an election to defer receipt of Annual Fixed Director Compensation pursuant to
either Section 7(a) or 7(c), such Director shall also file with the Secretary of
the Company a written election with respect to the distribution of the aggregate
amount of cash and Shares credited to the Director's Account pursuant to such
election. An Eligible Director may elect to receive such amount in one lump-sum
payment or in a number of approximately equal annual installments (provided the
payout period does not exceed 15 years). The lump-sum payment or the first
installment shall be paid as of (i) the first business day of any calendar year
subsequent to the date the Annual Fixed Director Compensation would otherwise be
payable, as specified by the Director, (ii) the first business day of the
calendar year immediately following the cessation of the Eligible Director's
service as a director of the Company or (iii) the earlier of (i) or (ii), as the
Eligible Director may elect. Subsequent installments shall be distributed as of
the first business day of each succeeding annual installment period until the
entire amount credited to the Director's Account shall have been distributed. A
cash payment will be made with the final installment for any fraction of a share
of Common Stock credited to the Director's Account.
(b) Adjustment of Method of Distribution. An Eligible Director
participating in the Plan may, prior to the beginning of any calendar year, file
another written election with the Secretary of the Company electing to change
the date and/or method of distribution of the aggregate amount of cash and
Shares of Common Stock credited to the Director's Account for services rendered
as a director commencing with such calendar year. Amounts credited to the
Director's Account prior to the effective date of such change (the "Prior
Amounts") shall not be affected by such change and shall be distributed only in
accordance with the election in effect at the time the Prior Amounts were
credited to the Director's Account; provided, however, that an Eligible Director
may elect to change the time at which Prior Amounts are to be paid, if (i) a
written election to effect such change is filed with the Secretary of the
Company at least one year before the earliest scheduled payment of the Prior
Amounts and (ii) such change would not accelerate the Eligible Director's
receipt of the Prior Amounts. Notwithstanding the foregoing, in the event an
Eligible Director suffers a severe financial hardship outside the control of
such Director, as determined by the Company, the Eligible Director may elect to
advance or defer the date of distribution of his or her Director's Account or
change the method of distribution thereof.
4
<PAGE> 5
(c) Change of Control. Notwithstanding anything to the
contrary contained herein, upon a "Change of Control" (as defined below), the
full number of Shares of Common Stock and cash in each Director's Account shall
be immediately funded and be distributable on the earlier of the date six months
and one day following the "Change of Control" or the distribution date(s)
previously elected by an Eligible Director. For purposes of this Plan, a "Change
of Control" shall mean a change in control of a nature that would be required to
be reported in a current report on Form 8-K, as in effect on the date of this
Plan, or pursuant to Section 13 or 14(d) of the Exchange Act, including, without
limitation, (i) the acquisition of beneficial ownership (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, by any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act), other than the
Company or Lawrence Saper or an entity directly or indirectly controlled by
Lawrence Saper, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities unless the
Company's Board, within fifteen (15) business days after having been advised of
such acquisition of beneficial ownership, adopts a resolution approving such
acquisition, or (ii) the failure, for any reason, of the individuals who
presently constitute the Board (the "Incumbent Board") to constitute at least a
majority thereof, provided that any director whose election has been approved in
advance by directors representing at least two-thirds (2/3) of the directors
comprising the Incumbent Board shall be considered, for these purposes, as
though such director were a member of the Incumbent Board.
Section 9. Distribution on Death. If an Eligible Director should die
before all amounts credited to the Director's Account shall have been paid in
accordance with the election referred to in Section 8, the balance in such
Director's Account as of the date of such Director's death shall be paid
promptly following such Director's death, in accordance with the method of
payment elected by the Eligible Director, to the beneficiary designated in
writing by such Director. Such balance shall be paid to the estate of the
Eligible Director if (a) no such designation has been made or (b) the designated
beneficiary shall have predeceased the Director and no further beneficiary
designation has been made.
Section 10. Amendment and Termination.
(a) Modifications to the Plan. The Plan shall continue in
effect until terminated by the Board. The Board may at any time amend or
terminate the Plan; provided, however, that (i) no amendment or termination
shall impair the rights of an Eligible Director with respect to amounts then
credited to the Director's Account; (ii) the provisions of the Plan relating to
eligibility, the amount and price of securities to be awarded, the timing of and
the amount of Annual Fixed Director Compensation awards shall not be amended
more than once every six months, other than to comport with changes in the
Internal Revenue Code of 1986, as amended, the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder; and (iii) no
amendment shall become effective without approval of the stockholders of the
Company if such stockholder approval is required to enable the Plan to satisfy
applicable state or Federal statutory or regulatory requirements.
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<PAGE> 6
(b) Rights of Eligible Director. No amendment, suspension or
termination of the Plan that would adversely affect the right of any Eligible
Director with respect to a Director's Account will be effective without the
written consent of the affected Eligible Director.
(c) Correction of Defects, Omissions and Inconsistencies. The
Board may correct any defect, supply any omission or reconcile any inconsistency
in the Plan in the manner and to the extent it shall deem desirable to carry the
Plan into effect.
Section 11. Miscellaneous.
(a) Non-Transferable. The right of an Eligible Director to
receive any amount in the Director's Account shall not be transferable or
assignable by such Director, except by will or by the laws of descent and
distribution, and no part of such amount shall be subject to attachment or other
legal process.
(b) No Right to Continue as Director. Nothing contained herein
or in any instrument executed pursuant to the Plan will confer upon any Eligible
Director any right to continue as a member of the Board or affect the right of
the Company, the Board or the stockholders of the Company to terminate the
directorship of any Eligible Director at any time with or without cause.
(c) No Right to Assets or Voting Rights. The establishment and
maintenance of, or allocation and credits to, the Director's Account shall not
vest in the Eligible Director or his beneficiary any right, title or interest in
and to any specific assets of the Company. An Eligible Director shall not have
any dividend or voting rights or any other rights of a stockholder (except as
expressly set forth in Section 7(b) with respect to dividends and as provided in
subparagraph (e) below) until the shares of Common Stock credited to a
Director's Account are distributed. The rights of an Eligible Director to
receive payments under the Plan shall be no greater than the right of an
unsecured general creditor of the Company.
(d) Annual Statement. Each Eligible Director participating in
the Plan will receive an annual statement indicating the amount of cash and
number of Shares of Common Stock credited to the Director's Account as of the
end of the preceding calendar year.
(e) Adjustments Upon Changes in Capitalization. If adjustments
are made to outstanding Shares of Common Stock as a result of stock dividends,
stock splits, recapitalizations, mergers, consolidations and similar
transactions, an appropriate adjustment shall be made in the number of Shares of
Common Stock credited to the Director's Account.
(f) Governing Law. The validity, construction, interpretation,
administration and effect of the Plan and of its rules and regulations, and
rights relating to the Plan, shall be determined solely in accordance with the
laws of the State of New Jersey, without
6
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regard to the choice-of-law principles thereof, and applicable federal law.
(g) Arbitration. All claims and disputes between an Eligible
Director and the Company arising out of, or related to, the Plan shall be
submitted to arbitration by a single arbitrator, in accordance with the rules of
the American Arbitration Association. Such arbitration shall be held in New
York, New York or such other place as may be agreed upon in writing at the time
by the parties to such arbitration. Notice of demand for such arbitration shall
be given in writing to the other party and shall be made within a reasonable
time after the claim or dispute has arisen. The parties to such arbitration
shall each pay one-half of the costs of such arbitrator. The award rendered by
such arbitrator in such arbitration shall be final, and judgment may be entered
upon such award in accordance with applicable law in any court having
jurisdiction thereof. The provisions of this Section 11(g) shall be specifically
enforceable under applicable law in any court having jurisdiction thereof.
(h) Severability. If any term or provision of this Plan or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, then the remainder of the Plan, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision hereof shall be valid and be enforced to the fullest extent
permitted by applicable law.
(i) Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Board from adopting other compensation arrangements for
Eligible Directors, subject to stockholder approval if such approval is
required. Such other arrangements may be either generally applicable or
applicable only in specific cases.
(j) Representations. The Board may require, as a condition to
the right to receive payment of the Annual Fixed Director Compensation (whether
directly or from the Director's Account), that the Company receive from the
Eligible Director, representations, warranties and agreements to the effect that
the Shares are being accepted by the Eligible Director only for investment and
without any present intention to sell or otherwise distribute such Shares and
that the Eligible Director 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.
(k) Withholding. The Company shall be authorized to withhold
from any Director's Account, or any payment due under the Plan, the amount of
withholding taxes due in respect thereof, and to take such other action as may
be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes. Upon receiving distributions from the Director's Account,
the Eligible Director receiving Shares pursuant thereto may be required to pay
the Company the amount of any such withholding taxes which is required to be
7
<PAGE> 8
withheld with respect to such Shares.
(l) Cost of the Plan. The costs and expenses of administering
the Plan shall be borne by the Company.
(m) No Waiver of Breach. No waiver by any person at any time
or any breach by another person of, or compliance with, any condition or
provision of the Plan to be performed by such other person shall be deemed a
waiver of the same, any similar or any dissimilar provisions or conditions at
the same, or at any prior or subsequent, time.
(n) No Trust or Fund Created. The Plan shall not create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and an Eligible Director or any other
individual, corporation, partnership, association, joint-stock company, trust,
unincorporated organization, or government or political subdivision thereof
("Person"). To the extent that any Person acquires a right to receive payments
from the Company pursuant to a Directors' Account, such right shall be no
greater than the right of any unsecured general creditor of the Company.
(o) Headings. The headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
the Plan.
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FORM OF ELECTION
DATASCOPE CORP.
COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
Reference is hereby made to the Datascope Corp. Compensation Plan For
Non-Employee Directors (the "Plan"). Any capitalized term used herein but not
defined herein shall have the meaning ascribed to such term in the Plan. By
checking the boxes, the undersigned Non-Employee Director of the Company may
elect to defer receipt of Annual Fixed Director Compensation under the Plan, and
the form of distributions under the Plan. The election is irrevocable once the
calendar year begins; however, it may be changed with respect to future calendar
years. Any change of election regarding distributions shall be effective only
with respect to amounts credited to the Director's Account for calendar years
following such election. Amounts credited to the Director's Account prior to
such change shall not be affected by such change and shall be distributed only
in accordance with the election in effect at the time such amounts were credited
to the Director's Account. This Form of Election is subject to the terms and
conditions of the Plan.
ELECTION TO DEFER RECEIPT OF
ANNUAL FIXED DIRECTOR COMPENSATION:
|_| Election to Defer Receipt of Annual Fixed Director Compensation. If
you do not check this box, or do not file this "Form of Election"
with the Secretary of the Company, all Annual Fixed Director
Compensation will be paid currently, as it becomes due under the
Plan.
ELECTION REGARDING DISTRIBUTION FROM DIRECTOR'S ACCOUNT:
Events of Distribution:
|_| The first business day on or after the ______ anniversary of the
date the Annual Fixed Director Compensation would otherwise be
payable.
|_| The first business day of the calendar year immediately following
the cessation of the undersigned's service as a director of the
Company.
|_| The earliest of the above-listed events that were selected by the
undersigned.
Method of Distribution:
|_| One lump-sum payment.
|_| ______ equal annual installments (payment period not to exceed 15
years).
ELECTION BY: ACCEPTED FOR FILING BY:
- ------------------------------- ---------------------------------
Secretary of Datascope Corp.
Date:___________________________ Date: ____________________________
IF NO BOXES ON THIS FORM OF ELECTION ARE CHECKED, ANNUAL FIXED DIRECTOR,
COMPENSATION WILL BE PAID CURRENTLY AS IT BECOMES DUE UNDER THE PLAN.
<PAGE> 1
EXHIBIT 5.1
OPINION OF SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
December 19, 1997
Datascope Corp.
14 Philips Parkway
Montvale, NJ 07465
Ladies and Gentlemen:
On the date hereof, Datascope Corp., a Delaware corporation (the
"Company"), intends to transmit for filing with the Securities and Exchange
Commission a Registration Statement on Form S-8 (the "Registration Statement")
relating to 25,000 shares (the "Shares") of common stock, par value $.01 per
share (the "Common Stock"), of the Company that may be offered from time to time
pursuant to the Company's Compensation Plan for Non-Employee Directors (the
"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 the 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 in the State of Delaware. To the extent that
the opinions expressed herein involve the law of the State of Delaware, such
opinions are based solely upon our reading of the Delaware General Corporation
Law as reported by Prentice-Hall Legal and Financial Services, without any
investigation of the legal decisions or other statutory provisions in effect in
such state that may relate to the opinions expressed herein.
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
<PAGE> 2
Datascope Corp.
December 19, 1997
Page 2
Shares to be issued pursuant to the 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 set
forth in the Plan, will be legally and validly issued, fully paid and
nonassessable.
It should be understood that nothing in this opinion is intended to
apply to any disposition of the Shares that any participant in the Plan might
propose to make.
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 purpose, except as expressly provided in the
preceding paragraph, without our express written consent, and no party other
than you is entitled to rely on it. This opinion is rendered to you as of the
date hereof and we undertake no obligation to advise you of any change, whether
legal or factual, after the date hereof.
Very truly yours,
/s/ SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
-----------------------------------------
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SFH&G, LLP:GA:DSR:TSS
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Datascope Corp. on Form S-8 of our report dated July 29, 1997, appearing in the
Annual Report on Form 10-K of Datascope Corp. for the year ended June 30, 1997.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITTE & TOUCHE LLP
New York, New York
December 19, 1997
