<PAGE>
As filed with the Securities and Exchange Commission on January 29, 1999
Registration No. [333- ]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
DATASCOPE CORP.
(Exact name of registrant as specified in its charter)
Delaware 13-259596
(State or other jurisdiction of (I.R.S. Employer
incorporation organization) Identification No.)
14 Philips Parkway
Montvale, NJ 07645
(201) 391-8100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------------
Lawrence Saper
Chief Executive Officer
Datascope Corp.
14 Philips Parkway
Montvale, NJ 07645
(201) 391-8100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------------
Copies to:
GERALD ADLER, ESQ.
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
<PAGE>
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_| _________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_| _________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed Maximum
Shares to Amount to Maximum Offering Aggregate Amount of
be Registered be Registered Price Per Share Offering Price Registration Fee (2)
------------- ------------- --------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par 120,516 shares(1) $19.56 $2,357,293 $655.33
value $0.01 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) The Registration Fee has been calculated pursuant to Rule 457 as
follows: 120,516 multiplied by .000278 multiplied by $19.56, the
average of the high and low sales prices of the Registrant's Common
Stock as included on the NASDAQ National Market System on January 28,
1999.
-----------------------------------------
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
The information in this document is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
document is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED JANUARY 29, 1999
PROSPECTUS
120,516 Shares
Datascope Corp.
Common Stock
------------------------------------
We are furnishing this document to you to allow the selling stockholders named
in this document to sell up to 120,516 shares of Common Stock, par value $.01
per share, of Datascope Corp. in private or market transactions. See "Selling
Stockholders" on page 6 and "Plan of Distribution" on page 8.
------------------------------------
The Common Stock is quoted on the NASDAQ National Market System under the
symbol "DSCP". On January 28, 1999, the closing price of the Common Stock was
$19.125 per share.
Datascope will not receive any of the proceeds from the sale of the Common
Stock. All costs, expenses and fees in connection with the registration of the
Common Stock will be paid by Datascope, except that each selling stockholder
will pay its own selling commissions, fees and expenses of counsel. See "Plan
of Distribution" on page 8.
------------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the accuracy or adequacy of this document. Any
representation to the contrary is a criminal offense.
The date of this Prospectus is __________, 1999.
------------------------------------
3
<PAGE>
AVAILABLE INFORMATION
Datascope Corp. (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports, proxy statements,
information statements and other information with the Securities and Exchange
Commission (the "Commission"). You may read and copy any materials filed by
the Company with the Commission at the Commission's Public Reference Room at
450 Fifth Street, NW, Washington, D.C. 20549; and at the Commission's regional
offices located at Suite 1400, Northwestern Atrium Center, 500 West Madison
Street, Chicago, Illinois 60661-2511, and at Suite 1300, Seven World Trade
Center, New York, New York 10048. You may obtain information on the operation
of the Public Reference Room by calling the Commission at 1-800-SEC-0330. The
Commission maintains a web site that contains reports, proxy statements,
information statements and other information regarding issuers that file
electronically with the Commission. The address of such site is
(http://www.sec.gov). The Common Stock is traded on Nasdaq National Market
System.
The Company has filed with the Commission a registration statement on
Form S-3 (herein together with all amendments thereto, if any, called the
"Registration Statement") under the Act, with respect to the securities
offered by this document. This document does not contain all the information
set forth or incorporated by reference in the Registration Statement and the
exhibits and schedules relating thereto, certain portions of which have been
omitted as permitted by the rules and regulations of the Commission. For
further information with respect to the Company and the securities offered by
this document, reference is made to the Registration Statement and the
exhibits and schedules thereto which are on file at the offices of the
Commission and may be obtained upon payment of the fee prescribed by the
Commission, or may be examined without charge at the offices of the
Commission. Statements contained in this document or incorporated herein by
reference as to the contents of any contract or other documents referred to
are not necessarily complete, and are qualified in all respects by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are
hereby incorporated by reference into this document and made a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1998, filed with the Commission on September
29, 1998 (the "1998 10-K").
2. The portions of the Company's Proxy Statement for the Annual
Meeting of Shareholders held on December 8, 1998 that have
been incorporated by reference into the 1998 10-K.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, filed with the Commission on
November 16, 1998.
4
<PAGE>
4. The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission under the Exchange Act, including any amendment
or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this
offering shall be deemed to be incorporated by reference in this document and
to be a part of this document from the date of filing of such documents or
reports. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
document 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 document.
The Company hereby undertakes to provide without charge to each
person, including any beneficial owner, to whom a copy of this document has
been delivered, upon the written or oral request of any such person, a copy of
any and all of the documents referred to above which have been or may be
incorporated in this document by reference (other than exhibits to the
documents referred to above unless such exhibits are specifically incorporated
by reference into such documents). Requests for such copies should be directed
to: Datascope Corp., 14 Philips Parkway, Montvale, NJ 07645, Attention:
Secretary; or by telephone (201) 391-8100.
Cautionary Statement pursuant to Safe Harbor Provisions of the Private
Securities Litigation Reform Act of 1995:
This document, including any documents that are incorporated by
reference as set forth in "Incorporation of Certain Documents by Reference, "
contains "forward-looking statements" within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act. Forward-looking statements include,
without limitation, any statement that may predict, forecast, indicate, or
imply future results, performance, or achievements, and may contain the words
"believe," "anticipate," "expect," "estimate," "project," "will be," "will
continue", "will likely result," or words or phrases of similar meaning.
Forward-looking statements involve risks and uncertainties that may cause
actual result to differ materially from the forward-looking statements. The
risks and uncertainties include, among others, competitive factors, changes in
government regulation, the Company's ability to introduce new products and
information provided to the Company by third parties regarding their "Year
2000" compliance. See the discussion of the Company's business and description
of the various factors that could materially affect the ability of the Company
to achieve the anticipated results that are included in the Company's periodic
reports that are incorporated herein by reference.
5
<PAGE>
THE COMPANY
The Company manufactures proprietary products for clinical health
care markets in interventional cardiology, radiology, anesthesiology,
cardiovascular and vascular surgery and for use in emergency rooms and
intensive care units. In addition, in 1998, the Company began to manufacture
products for the life science research market. The Company's products are
distributed worldwide by direct sales personnel and independent distributors.
The Company's principal executive offices are located at 14 Philips
Parkway, Montvale, NJ 07645, telephone (201) 391-8100.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
shares of Common Stock described in this document. All proceeds will be
received by the selling stockholders.
DIVIDEND POLICY
The Company has not paid any cash dividends on its Common Stock to
date. The Company intends to retain earnings to finance the development and
growth of its business. Accordingly, the Company does not anticipate that any
cash dividends will be declared on the Common Stock for the foreseeable
future. Future payment of cash dividends, if any, will depend upon the
Company's financial condition, results of operations, business conditions,
capital requirements, restrictions contained in agreements, future prospects
and other factors deemed relevant by the Company's Board of Directors.
SELLING STOCKHOLDERS
This document covers the sale by the respective holders thereof of up
to 120,516 shares of Common Stock.
The shares of Common Stock offered hereby are being sold by the
selling stockholders. The table on the next page sets forth, as of October 2,
1998 and as adjusted to reflect the sale of the shares of Common Stock,
certain information regarding the ownership of the Common Stock by the selling
stockholders. Except as otherwise indicated, the number of shares of Common
Stock reflected in the table below has been determined in accordance with Rule
13d-3 promulgated under the Exchange Act. Under such Rule, each selling
stockholder is deemed to beneficially own the number of shares of Common Stock
issuable upon, among other things, the exercise of options, if such options
are exercisable within sixty days. Where less than all shares of Common Stock
beneficially owned by a selling stockholder are being registered for sale, the
remaining shares of Common Stock, or a portion of them, may already be
registered for sale or otherwise freely tradable.
6
<PAGE>
<TABLE>
<CAPTION>
Number of
Beneficial Ownership Shares to be Beneficial Ownership of
of Common Stock Sold in Common Stock
Prior to Offering Offering After Offering
----------------- -------- --------------
Stockholders(1) Number Percent Number Percent
- ------------ ------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Thor W. Nilsen(2) 29,562(3) * 29,562 0 0
John Geresi 8,204 * 8,204 0 0
Dr. Eric Jaffe 10,256 * 10,256 0 0
Corey Jacklin 7,692 * 7,692 0 0
Willis Young 1,538 * 1,538 0 0
Christopher Morley and Leona 9,230 * 9,230 0 0
Young
Elliot Brodsky 6,153 * 6,153 0 0
Jansen Noyes, Jr. 2,906 * 2,906 0 0
Robert Honig 6,495 * 6,495 0 0
Arnold Stern 6,495 * 6,495 0 0
Julius Bauer 6,495 * 6,495 0 0
Wolf Prensky 15,817 * 15,817 0 0
Bruce Caputo 7,040 * 7,040 0 0
Zachary Prensky 1,043 * 1,043 0 0
Avrom Vann 1,590 * 1,590 0 0
</TABLE>
* Less than 1%
(1) This table identifies persons having sole voting and investment power
with respect to the shares set forth opposite their names, except as
otherwise disclosed in the footnotes to the table, according to
information furnished to the Company by each of them.
(2) Mr. Nilsen has been employed since October 1998 as the Vice President
of Technology of Genisphere, Inc. ("Genisphere"), which is a
subsidiary of the Company. Prior to his employment with Genisphere,
Mr. Nilsen served as President of Polyprobe, Inc. ("Polyprobe") for
at least five (5) years. Polyprobe was acquired by the Company in
October 1998.
(3) Does not include 100 shares of the common stock of Genisphere that
are beneficially owned by Mr. Nilsen, which shares represent 5% of
the common stock of Genisphere outstanding as of January 1, 1999.
7
<PAGE>
PLAN OF DISTRIBUTION
The Company is registering the shares of Common Stock on behalf of
the selling stockholders. The selling stockholders may sell their shares of
Common Stock from time to time. Before selling shares of Common Stock, the
selling stockholder is required to offer the shares of Common Stock to the
Company.
As used herein, "selling stockholders" includes donees and pledgees
selling shares of Common Stock received from a named selling stockholder after
the date of this document. Expenses of this offering, including all
registration and qualification fees (but excluding brokerage commissions and
fees and disbursements of counsel to the selling stockholders), which are
estimated at $12,905.33, will be borne by the Company. Sales of shares of
Common Stock may be effected by selling stockholders from time to time in one
or more types of transactions (which may include block transactions) on the
Nasdaq Stock Market, in the over-the-counter market, in negotiated
transactions, through put or call options transactions relating to the shares
of Common Stock, through short sales of shares of Common Stock, or a
combination of such methods of sale, at market prices prevailing at the time
of sale, or at negotiated prices. Usual and customary or specifically
negotiated underwriting or brokerage fees, discounts and commissions may be
paid by the selling stockholders in connection with such sales of shares of
Common Stock. Such transactions may or may not involve brokers or dealers. The
Company is not aware of any selling stockholders which have entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares of Common Stock, nor is the
Company aware of any underwriter or coordinating broker acting in connection
with the proposed sale of shares of Common Stock by the selling stockholders.
The selling stockholders may effect such transactions by selling
shares of Common Stock directly to purchasers or to or through broker-dealers,
which may act as agents or principals. Such broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from the
selling stockholders and/or the purchasers of shares of common stock for whom
such broker-dealers may act as agents or to whom they sell as principal, or
both (which compensation as to a particular broker-dealer might be in excess
of customary commissions).
The selling stockholders and any broker-dealers that act in
connection with the sale of shares of Common Stock might be deemed to be
"underwriters" within the meaning of Section 2(11) of the Act, and any
commissions received by such broker-dealers and any profit on the resale of
the shares of Common Stock sold by them while acting as principals might be
deemed to be underwriting discounts or commissions under the Act. The Company
has agreed to indemnify each selling stockholder against certain liabilities,
including liabilities arising under the Act. The selling stockholders may
agree to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of shares of Common Stock against certain
liabilities, including liabilities arising under the Act.
Because selling stockholders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Act, the selling stockholders will
be subject to the prospectus delivery requirements of the Act. The
anti-manipulative provisions of Regulation M promulgated under the
8
<PAGE>
Exchange Act may apply to the sale of shares of Common Stock by the selling
stockholders in the market.
At the time a particular offer of the shares of Common Stock offered
hereby is made, to the extent required, a supplement to this document will be
distributed (or, if required, a post-effective amendment to the Registration
Statement of which this document is a part will be filed) which will identify
the specific shares of Common Stock being offered and set forth the aggregate
amount of shares of Common Stock being offered, the purchase price and the
terms of the offering, including the name or names of the selling stockholders
and of any underwriters, dealers or agents, the purchase price paid by any
underwriter for shares of Common Stock purchased from the selling
stockholders, any discounts, commissions and other items constituting
compensation from the selling stockholders and any discounts, commissions or
concessions allowed or reallowed or paid to dealers, including the proposed
selling price to the public.
Pursuant to a registration rights agreement that granted registration
rights to the selling stockholders, the Company will use its best efforts to
keep the Registration Statement, of which this document forms a part,
continuously effective under the Act.
The certificates representing the shares of Common Stock offered
hereby contain legends as to their restricted transferability. Upon the
effectiveness of the Registration Statement, of which this document forms a
part, and the transfer of the shares of Common Stock pursuant thereto, such
legends will no longer be necessary, and accordingly, new certificates
representing such shares of Common Stock will be issued to the transferee
without any such legends unless otherwise required by law.
Selling stockholders also may resell all or a portion of the shares
of Common Stock in open market transactions in reliance upon Rule 144 under
the Act, provided they meet the criteria and conform to the requirements of
such Rule.
9
<PAGE>
LEGAL MATTERS
The legality of the Shares offered hereby will be passed upon for the
Company by Swidler Berlin Shereff Friedman, LLP, New York, New York.
EXPERTS
The financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the Company's
Annual Report on Form 10-K (for the year ended June 30, 1998) have been
audited by Deloitte & Touche, LLP independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
10
<PAGE>
Until [ ], 1999, all dealers that effect transactions in these
securities, whether or not participating in this offering, may be required to
deliver a prospectus. This is in addition to the dealers' obligation to
deliver a prospectus when acting as underwriters and with respect to their
unsold allotments or subscriptions.
TABLE OF CONTENTS
Page
----
Available Information ....................................................4
Incorporation of Certain Documents
by Reference ....................................................4
The Company ..............................................................6
Use of Proceeds ..........................................................6
Dividend Policy ..........................................................6
Selling Stockholders .....................................................6
Plan of Distribution .....................................................8
Legal Matters ...........................................................10
Experts .................................................................10
Datascope Corp.
120,516 Shares
Common Stock
PROSPECTUS
__________, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission Registration Fee ............... $ 655.33
NASD Fee .......................................................... N/A
Printing and Engraving ............................................ N/A
Legal Fees and Expenses (other than Blue Sky) ..................... 7,500
Blue Sky Fees and Expenses ........................................ N/A
Accounting Fees and Expenses ...................................... 3,500
Transfer Agent Fees ............................................... N/A
Miscellaneous ..................................................... 1,250
Total .................................................... 12,905.33
All of the above items, except the registration fee, are estimated.
Expenses of this offering, including all registration and qualification fees
(but excluding brokerage commissions and fees and disbursements of counsel to
the selling stockholders), which are estimated at $12,928.45, will be borne by
the Company.
ITEM 15. 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.
12
<PAGE>
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 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.
13
<PAGE>
The Restated 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 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 and 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 16. Exhibits
The following exhibits are filed as part of this Registration
Statement.
14
<PAGE>
Exhibit
Number Description
------- -----------
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Swidler Berlin Shereff Friedman, LLP
(included in Exhibit 5.1).
24.1 Power of Attorney (appears on signature page).
ITEM 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of 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 Securities and Exchange
Commission pursuant to Rule 424(b) promulgated under the
Securities Act of 1933 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 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;
15
<PAGE>
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 Company
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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, hereunto
duly authorized, in the City of Montvale, State of New Jersey, on this 29th
day of January, 1999.
DATASCOPE CORP.
By: /s/ Lawrence Saper
-------------------------------------------
Lawrence Saper
Chairman, President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Lawrence Saper and Leonard S.
Goodman and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact, 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, hereby ratifying and confirming
all that said attorneys-in-fact 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman, President, Chief Executive
/s/ Lawrence Saper Officer, and Director (Principal
- ------------------------------------ Executive Officer) January 29, 1999
Lawrence Saper
Vice President and Chief Financial
/s/ Leonard S. Goodman Officer (Principal Financial and
- ------------------------------------ Accounting Officer) January 29, 1999
Leonard S. Goodman
/s/ Alan Abramson
- ------------------------------------
Alan Abramson Director January 29, 1999
/s/ David Altschiller
- ------------------------------------
David Altschiller Director January 29, 1999
</TABLE>
17
<PAGE>
<TABLE>
<S> <C> <C>
/s/ William Asmundson
- ------------------------------------
William Asmundson Director January 29, 1999
/s/ Joseph Grayzel, M.D.
- ------------------------------------
Joseph Grayzel, M.D. Director January 29, 1999
/s/ George Heller
- ------------------------------------
George Heller Director January 29, 1999
/s/ Arno Nash
- ------------------------------------
Arno Nash Director January 29, 1999
</TABLE>
18
<PAGE>
DATASCOPE CORP.
FORM S-3
REGISTRATION STATEMENT
EXHIBIT INDEX
Exhibit
-------
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Swidler Berlin Shereff Friedman, LLP (included
in Exhibit 5.1)
24.1 Power of Attorney (appears on signature page)
19
<PAGE>
[OPINION OF SWIDLER BERLIN SHEREFF FRIEDMAN, LLP]
January 26, 1999
Datascope Corp.
14 Phillips Parkway
Montvale, NJ 07645
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-3 (the "Registration
Statement") relating to 120,516 issued and outstanding 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 by certain selling stockholders named in
the Registration Statement. 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 offering 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 shares of Common Stock have been duly
authorized and, subject to the effectiveness of the Registration Statement and
compliance with applicable state securities laws, are legally and validly
issued, fully paid and nonassessable.
20
<PAGE>
Datascope Corp.
January 26, 1999
Page 2
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/ SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
21
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Datascope Corp.:
We consent to the incorporation by reference in this Registration Statement of
Datascope Corp. on Form S-3 of our report dated July 28, 1998 appearing in and
incorporated by reference in the Annual Report on Form 10-K of Datascope Corp.
for the year ended June 30, 1998 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
January 29, 1999
22
