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EXHIBIT 4.1
DATASCOPE CORP.
STOCK OPTION AGREEMENT
THIS AGREEMENT (the "Agreement"), made as of this ___ day of
__________, by and between DATASCOPE CORP. (the "Company"), a Delaware
corporation, and __________ ("Optionee"), residing at
_____________________________________________.
R E C I T A L
WHEREAS, Optionee is a ___________ of the Company;
WHEREAS, the Company is granting this Option to the Optionee as a
further incentive to achieve certain objectives; and
WHEREAS, the Board of Directors of the Company (the "Board") has
adopted a resolution granting Optionee a stock option (the "Option") to purchase
__________ shares of the Company's Common Stock, par value $.01 per share
("Shares"), for the price and on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, the parties agree as
follows:
1. (a) The price at which Optionee shall have the right to
purchase Shares under this Agreement is $______ per share subject to adjustment
as provided in Paragraph (b) below.
(b) Unless the Option is previously terminated pursuant
to this Agreement, the Option shall be exercisable with respect to _________
Shares on each of the first, second, third and fourth anniversaries of the date
hereof; provided that, the Option shall be exercisable only if the average of
the high and low sale price of the Shares as quoted on the NASDAQ National
Market System on the trading day immediately preceding the date of exercise is
equal to or greater than $______.
In no event shall any Shares be purchasable under this Agreement after the tenth
anniversary of the date hereof (the "Expiration Date"). Except as provided in
subparagraph (c) hereof, the Option shall cease to be exercisable on the date
Optionee voluntarily or involuntarily terminates his services as a consultant of
the Company, and all rights of Optionee hereunder shall thereupon terminate.
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(c) If Optionee ceases to be a consultant of the Company and
this cessation is due to disability (as defined in each case by the Board),
retirement or to death, the Option shall be exercisable as provided in this
subparagraph. In the event of his disability, the Optionee's duly appointed
guardian or conservator or, in the event of his death, his executor or
administrator shall have the privilege of exercising the unexercised portion of
the Option which Optionee could have exercised on the day on which his status as
a consultant was terminated, provided, however, that such exercise must be in
accordance with the terms of this Agreement and within one (1) year of
Optionee's disability, retirement or death, as the case may be. In no event,
however, shall Optionee or his executor or administrator, as the case may be,
exercise the Option after the Expiration Date specified in subparagraph 1(b).
For all purposes of this Agreement, an approved leave of absence shall not
constitute an interruption or cessation of Optionee's service as a consultant of
the Company.
(d) The Option is not intended to satisfy the requirements
for an incentive stock option under the Internal Revenue Code of 1986, as
amended. The Company makes no representations or warranties as to the income,
estate or other tax consequences to Optionee of the grant or exercise of the
Option or the sale or other disposition of the shares acquired pursuant to the
exercise thereof.
2. Nothing contained herein shall be construed to confer on Optionee
any right to continue as a consultant of the Company or to derogate from any
right of the Company to terminate any consulting arrangement or agreement with
Optionee, or to retire, request the resignation of, layoff or require a leave of
absence of Optionee, with or without pay, at any time, with or without cause.
3. The Option shall not be sold, pledged, assigned or transferred in
any manner except to the extent that the Option may be exercised by an executor
or administrator as provided in subparagraph l(c) above. The Option may be
exercised, during the lifetime of Optionee, only by Optionee, or his duly
appointed conservator or guardian in the event of his disability.
4. (a) If the outstanding Shares of the Company are subdivided,
consolidated, increased, decreased, changed into or exchanged for a different
number or kind of shares or securities of the Company through reorganization,
merger, recapitalization, reclassification, capital adjustment or otherwise, or
if the Company shall issue Shares as a dividend or upon a stock split, then the
number and kind of shares subject to the unexercised portion of the Option and
the exercise price of the Option shall be adjusted to prevent the inequitable
enlargement or dilution of any rights hereunder, provided, however, that any
such adjustment shall be made without change in the total exercise price
applicable to the unexercised portion of the option. Adjustments under this
paragraph shall be made by the Board whose determination shall be final and
binding and conclusive. In computing any adjustment under this paragraph, any
fractional Share shall be eliminated. Nothing contained in this Agreement shall
be construed to affect in any way the right or power of the Company to make any
adjustment, reclassification, reorganization or changes to its capital or
business structure or to merge or to
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consolidate or to dissolve, liquidate or transfer all or any part of its
business or assets. Distributions to the Company's shareholders consisting of
property other than shares of Common Stock of the Company or its successor and
distributions to shareholders of rights to subscribe for Common Stock shall not
result in the adjustment of the Shares purchasable under outstanding options or
the exercise price of outstanding options.
(b) If in the event of the dissolution or liquidation of the Company,
or in the event of a merger or consolidation in which (1) the Company is not the
surviving corporation, and (2) the agreement governing such merger or
consolidation do not provide for the issuance to Optionee of a Substitute Option
(as hereinafter defined) or the express assumption of this Option, Optionee
shall have the right immediately prior to the effective date of such merger,
consolidation, dissolution or liquidation to exercise the Option in whole or in
part, without regard to any installment provisions contained in subparagraph
l(b); provided, that any conditions precedent to such exercise set forth in this
Agreement, other than the passage of time, have occurred. In such event, the
Company will mail or cause to be mailed to optionee a notice specifying the date
on which holders of Shares shall be entitled to exchange their shares for
securities or other property deliverable in connection with such merger,
consolidation, dissolution or liquidation. Such notice shall be mailed at least
ten (10) days prior to the date therein specified to the address of Optionee
specified on page 1 of this Agreement or to such other address as Optionee
delivers or transmits by registered or certified mail to the treasurer of the
Company at its principal office. In the event the Option is not exercised on or
prior to the date specified therein, the Option and any rights hereunder shall
terminate as of said date. For purposes of this Paragraph 4, a "Substitute
Option" shall mean an option under which Optionee has the right to purchase on
substantially equivalent terms (as hereinafter defined) (in lieu of Shares), the
stock, securities, or other property he would have been entitled to receive upon
the consummation of such merger or consolidation had he exercised the option
immediately prior thereto. For purposes of the preceding sentence,
"substantially equivalent terms" shall be those terms given approval by the
Board in their sole discretion.
5. The Option shall be exercised when written notice of such exercise,
signed by Optionee has been delivered or transmitted by registered or certified
mail, to the Secretary of the Company at its principal office. Said written
notice shall specify the number of Shares purchasable under the Option which
Optionee then wishes to purchase and shall be accompanied by (i) such
documentation, if any, as may be required by the Company as provided in
Paragraph 7 hereof and (ii) payment of the aggregate option price. Such payment
shall be in the form of (i) cash or a certified check (unless such certification
is waive by the Company) payable to the order of the Company in the amount of
the aggregate option price for such number of shares, (ii) certificates duly
endorsed for transfer (with all transfer taxes paid or provided for) evidencing
a number of shares of Common Stock of the Company of which the aggregate fair
market value on the date of exercise is equal to the aggregate option exercise
price of the shares being purchased or (iii) a combination of these methods of
payment; provided, however, that payment, whether in whole or in part, by
surrendering certificates, may only be made if Optionee has held such shares for
a period of at least six (6) months prior to the date of surrender. Delivery of
said notice and such documentation shall constitute an irrevocable election to
purchase the Shares specified in
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said notice and the date on which the Company receives said notice and
documentation shall, subject to the provisions of Paragraph 6 and 7, be the date
as of which the Shares so purchase shall be deemed to have been issued. Optionee
shall not have the right or status as a holder of the Shares to which such
exercise relates prior to receipt by the Company of such payment, notice and
documentation.
6. Anything in this Agreement to the contrary notwithstanding, in no
event may the Option be exercisable if the Company shall, at any time and in its
sole discretion, determine that (i) the listing, registration or qualification
of any shares otherwise deliverable upon such exercise, upon any securities
exchange or under any state or federal law, or (ii) the consent or approval of
any regulatory body or the satisfaction of withholding tax or other withholding
liabilities is necessary or desirable in connection with such exercise. In such
event, such exercise shall be held in abeyance and shall not be effective unless
and until such withholding, listing, registration, qualification or approval
shall have been affected or obtained free of any conditions not acceptable to
the Company in its sole discretion, notwithstanding any termination of any
option or any portion of any option during the period when exercisability has
been suspended.
7. The Board may require as a condition to the right to exercise the
Option hereunder that the Company receive from Optionee representations,
warranties and agreements, at the time of any such exercise, to the effect that
the Shares are being purchased for investment only and without any present
intention to sell or otherwise distribute such Shares and that the Shares will
not be disposed of 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.
8. (a) Notwithstanding anything to the contrary that may be contained
in this Agreement, without the prior written consent of the Company, the person
or entity exercising the Option shall not sell, transfer, pledge, hypothecate or
otherwise dispose of any Shares acquired upon the exercise of the Option or any
interest therein without first offering to the Company in writing the right to
purchase such Shares at a price per share equal to the average of the high and
low sale price of such Shares as quoted on the NASDAQ National Market System on
the trading day immediately preceding the day of such offer (the "Offer Price").
The Company shall have no more than two (2) trading days to accept or reject
such offer. In the event the Company agrees to purchase such Shares, the
certificate or certificates evidencing such Shares shall forthwith be delivered
to the Company against full payment of an amount of money in the form of cash or
check equal to the product of (x) the number of Shares that are the subject of
such offer and (y) the Offer Price.
(b) The certificate or certificates delivered which evidence Shares
acquired upon any exercise of the Option as provided in Paragraph 5 shall bear,
in addition to any restrictive legend required by Paragraph 7, a legend
summarizing the restrictions set forth in subparagraph (a) of this Paragraph 8.
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(c) In the event of the death of Optionee, all restrictions set
forth in subparagraph (a) of this Paragraph 8 shall terminate forthwith with
respect to any and all Shares owned by Optionee at the date of his death, but
neither the termination of such restrictions upon the death of Optionee nor any
lapse of restrictions upon the expiration of any period specified in
subparagraph 8(a) hereof shall affect the obligations of Optionee or his
executor or administrator, as the case may be, to comply with the requirements
or Paragraph 7 in connection with any sale or other disposition of any such
Shares.
(d) The Board shall have the power in its discretion to
lessen or eliminate the period of time during which the transfer of Optionee's
Shares is restricted hereunder and/or to eliminate or modify in Optionee's favor
the Company's right to purchase Shares pursuant to this paragraph, whether
before or after the Option is exercised hereunder.
9. This Agreement shall be construed and enforced in accordance with
the laws of the State of Delaware. Subject to subparagraphs l(c), 8(a) and 8(b),
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, personal representative, successors
or assigns, as the case may be.
IN WITNESS WHEREOF, the parties have witnessed this Agreement to be
duly executed and delivered as of the date first above written.
DATASCOPE CORP.
____________________________________ By:_____________________________
Optionee
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