EXHIBIT 10.26
DATASCOPE CORP.
STOCK OPTION AGREEMENT
Agreement, made as of the 20th day of May 2003, between DATASCOPE CORP.,
a Delaware corporation (the "Company"), and Xxxxxxx Xxxxxxxx (the "Optionee"),
residing at 0 Xxxxxxxxxx Xxxxxx Xxxxxxx, Xxx. 0X, Xxx Xxxx 00000-0000.
The Board of Directors of the Company (the "Board of Directors") has
adopted a resolution granting the Optionee a ten-year option to purchase
10,000 shares (the "Shares") of common stock, par value $0.01 per share
("Common Stock"), of the Company, subject to and upon the terms and conditions
set forth herein (the "Option").
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 hereto have agreed
as follows:
1. (a) The price at which the Optionee shall have the right to purchase the
Shares under this Agreement is $28.80 per share.
(b) The Option shall be immediately exercisable.
(c) If the Optionee shall at any time voluntarily or involuntarily cease
to serve as a consultant of the Company or if the Optionee's service shall
terminate on account of death or disability, the Option shall terminate three
months following the first day that the Optionee is no longer a consultant of
the Company (one year in the case of termination on account of death or
disability). A leave of absence approved by the Board of Directors shall not
constitute an interruption or cessation of the Optionee's service as a
consultant of the Company.
(d) This Option is not intended to satisfy the requirements for an
incentive stock option under the Internal Revenue Code of 1986, as amended.
2. Nothing contained herein shall be construed (i) to confer on the
Optionee any right to continue to serve as a consultant of the Company or (ii)
to derogate from any right of the Company to terminate any consulting
agreement or other agreement with the Optionee, or to retire, request the
resignation of, layoff or require a leave of absence of the Optionee, with or
without pay, at any time, with or without cause.
3. The Option shall not be subject in any manner to transfer (except by
will or the laws of descent and distribution), sale, exchange, assignment,
anticipation, pledge or encumbrance, except to the extent that the Option may
be exercised by a guardian or conservator in the event of the Optionee's
disability or an executor or administrator in the event of the Optionee's
death. The Option may be exercised during the lifetime of the Optionee only by
the Optionee or, in the event of his disability, his duly appointed guardian
or conservator or, in the event of his death, his executor or administrator.
Notwithstanding anything to the contrary that may be contained in this
Agreement, the Option may be transferred, without consideration, by
the Optionee to members of his immediate family, to a partnership or limited
liability company all, or substantially all, of the interests in which are owned
by the Optionee or members of his immediate family, or to a trust, the
beneficiaries of which are the Optionee or members of his immediate family (each
of the foregoing being referred to herein as an "Permitted Transferee"), under
such other terms and conditions, and subject to such agreements by the Optionee
and the Permitted Transferee(s) as the Board of Directors, in its absolute
discretion, shall require.
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
aggregate exercise price applicable to the unexercised portion of the Option.
Adjustments under this Paragraph 4 shall be made by the Board of Directors,
whose determination shall be final and binding and conclusive. In computing
any adjustment under this Paragraph 4, 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 consolidate or to dissolve, liquidate or transfer
all or any part of its business or assets.
(b) 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 agreements governing such merger or
consolidation do not provide for the issuance to the Optionee and/or any
Permitted Transferee, as the case may be, of a Substitute Option (as
hereinafter defined) or the express assumption of this Option, the Company, at
least ten (10) days prior to the date of such event, will mail or cause to be
mailed to the Optionee and/or any Permitted Transferee, as the case may be, a
notice specifying the date such event to the address of the Optionee specified
on page 1 of this Agreement (and to the addresses of the Permitted Transferees
that have been provided to the Company) or to such other address as the
Optionee (or such Permitted Transferee) 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 of such event, 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
the Optionee and/or any Permitted Transferee has the right to purchase on
substantially equivalent terms (as hereinafter defined) (in lieu of the
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 of Directors in their sole discretion.
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5. The Option shall be exercised when written notice of such exercise,
signed by the person entitled to exercise the Option, has been delivered or
transmitted by registered or certified mail, to the Secretary of the Company
at its principal office. Said written notice shall specify the number of
Shares purchasable under the Option which such person then wishes to purchase
and shall be accompanied by such documentation, if any, as may be required by
the Company as provided in Paragraph 7 and payment of the aggregate option
price. Such payment shall be in the form of (i) cash or a certified check
(unless such certification is waived by the Company) payable to the order of
the Company in the amount 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 the 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 said notice and the date on which the Company receives said
notice and documentation shall, subject to the provisions of Paragraphs 6 and
7, be the date as of which the Shares so purchased shall be deemed to have
been issued. The person entitled to exercise the Option shall not have the
right or status as a holder of 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 effected or obtained free of any
conditions not acceptable to the Company.
7. (a) The Company shall not be deemed obligated to the Optionee to
register any of the Shares which may be acquired pursuant to any exercise of
the Option under the Securities Act of 1933, as amended (the "Act"). The
Optionee acknowledges that, if the Shares are not so registered, his
acquisition of any of the Shares pursuant to an exercise of the Option will be
made in part in reliance upon the exemption from the registration requirements
of the Act afforded by Section 4(2) of the Act for transactions by an issuer
not involving any public offering. The Optionee further acknowledges that the
Company's reliance upon this exemption at the time of any exercise of the
Option will be predicated upon the Optionee's representation at that time that
such Shares are being acquired by him as an investment solely for his account
and that he then has no intention of selling, pledging, transferring or
otherwise distributing or disposing of all or any part of such Shares or any
interest or participation therein except as permitted by the Act and the rules
and regulations promulgated thereunder. The Optionee
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further acknowledges that, accordingly, if the Shares are not so registered, the
receipt by the Board of Directors of written representations to such effect is a
condition precedent to the right to exercise the Option, in whole or in part.
(b) The Optionee agrees that there will be no disposition of all or any
part of the Shares acquired pursuant to any exercise of the Option or any
interest or interests therein, unless and until such disposition has been
registered under the Act or the Company receives an opinion of its counsel that
registration under the Act is not required in connection with such disposition.
(c) The Optionee agrees that upon any exercise of the Option, unless the
Shares acquired pursuant to such exercise have been registered under the Act,
the transfer agent for the Shares acquired pursuant to such exercise will be
instructed to place appropriate stop orders against transfer of the Shares and
that the certificate or certificates to be issued representing the Shares will
conspicuously bear a legend substantially as follows:
The offer and sale of the shares represented by this certificate have not
been registered under the Securities Act of 1933, as amended. The shares
have been acquired for investment and may not be sold, transferred, pledged,
hypothecated or otherwise disposed of in the absence of an effective
registration statement for the shares under the Securities Act of 1933, as
amended, or an opinion of counsel to the Company that registration is not
required under said Act.
(d) The Optionee acknowledges that he is presently familiar with the
Company's business, operations and financial condition. In this connection,
the Company agrees that, upon the request of the Optionee, it will provide the
Optionee with a copy of its then most recent definitive Proxy Statement in
connection with a meeting of its shareholders for the election of directors,
its then most recent Annual Report on Form 10-K, and all Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K filed by the Company with the
Securities and Exchange Commission subsequent to the filing of its then most
recent Annual Report on Form 10-K. In addition, principal officers of the
Company will be reasonably available to discuss with the Optionee the
information contained in these documents.
8. Notwithstanding anything to the contrary 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 trading days to accept or reject such
offer. In the event the Company agrees to purchase such Shares, the
certificate or certificates evidencing the Shares shall forthwith be delivered
to the Company against full payment for the Shares in the form of cash or
check.
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9. This Agreement shall be construed and enforced in accordance with the
laws of the State of Delaware, without regard to any choice-of-law principles
thereof.
10.Subject to Paragraph 3, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors or assigns, as the case may be.
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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: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: CEO and Chairman
/s/ Xxxxxxx Xxxxxxxx
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Optionee
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