EXHIBIT 4.5
DATASCOPE CORP
STOCK OPTION AGREEMENT
Agreement, made as of the ____ day of __________, ______ between
DATASCOPE CORP. (the "Company" , a Delaware corporation, and ______________ (the
"Optionee"), residing at ___________________________________________ (the
"Agreement").
The Optionee has been elected as a director of the Company at the Board
of Directors meeting held on ____________ ___, _____. The Company has agreed
that, in addition to director's fees, the Optionee should receive a ten-year
option to purchase ________ shares of Common Stock of the Company. Accordingly,
on ___________ ____, ______ the Board of Directors of the Company approved the
grant by the Company to the Optionee of a stock option to purchase _______
shares of the Company's Common Stock, par value $.01 per share (the "Shares" ,
subject to and upon the terms and conditions set forth herein the "Option").
Therefore, in consideration of the premises and other good and valuable
consideration, the parties hereto have agreed as follows:
1. (a) The price at which the Optionee shall have the right to purchase
Shares under this Agreement is $_______ per share, subject to adjustment as
provided in Paragraph 4.
(b) Subject to Paragraph 1(c), unless the option is previously
terminated pursuant to this Agreement the Option shall be exercisable with
respect to all ________ Shares on ___________ ___, ______ and ending __________
____, ______; provided, however, that the Option shall cease to be exercisable
on the date of the termination of the Optionee's status as a director of the
Company.
(c) If the Optionee's status as a director of the Company terminates
due to disability or to death, the Option shall be exercisable as provided in
this subparagraph The Optionee or, in the event of the Optionee's disability,
his duly appointed guardian or conservator or, in the event of the Optionee's
death, his duly appointed executor or administrator shall have the privilege of
exercising the unexercised portion of the Option which the Optionee could have
exercised on the day on which his status as a director of the company
terminated, provided, however, such exercise must be in accordance with the
terms of this Agreement and within one (1) year of the Optionee's disability or
death, as the case may be. In no event, however, shall the Optionee or his duly
appointed guardian or conservator or his duly appointed executor or
administrator, as the case may be, exercise the Option after _________ ___,
_____.
2. Nothing contained herein shall be construed (i) to confer on the
Optionee any right to continue to serve as a director of the Company or (ii to
obligate the Company
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(including its shareholders, directors and officers) to either re-nominate the
Optionee for election or re-elect the nominee to serve as a director or (iii) to
derogate from any right of the Company (including its shareholders, directors
and officers) to remove or request the resignation of the Optionee from the
Company's Board of Directors.
3. (a) The Option shall not be sold, pledged, assigned or transferred
in any manner except to the extent that the Option may be exercised as provided
in Paragraph 1(c).
(b) For all purposes of this Agreement, except the Preamble and
Paragraph 1(b), the term "Optionee" shall include any person entitled to
exercise the option pursuant to Paragraph 1(c).
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 of Directors, 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 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 of a Substitute Option (as
hereinafter defined) or the express assumption of this Option, the Option and
any rights hereunder shall terminate as of the effective date of any such
dissolution, liquidation, merger or consolidation date. For purposes of this
Paragraph 4, a Substitute Option shall mean an option under which the 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.
5. The Option shall be exercised when written notice of such exercise,
signed by the 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 the Optionee then wishes to purchase and shall be
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accompanied by (i) such documentation, if any, as may be required by the Company
as provided in Paragraph 6 or 7 and (ii payment of the aggregate option price
Such payment shall be in the form of i) cash or a certified check unless such
certification is waived by the Company) payable to the order of the Company in
the amount 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 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.
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 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. For purposes of this Agreement, the fair market value per Share
on a given date shall be: (i if the Shares are listed on a registered securities
exchange or included in the National
Market System, the closing price per Share on such date (or, if there was no
trading on such exchange on such date, on the next preceding day on which there
was trading); (ii) if the Shares are not listed on a registered securities
exchange or included in the National Market System, but the bid and asked prices
per Share are provided by NASDAQ, the National Quotation Bureau Incorporated or
any similar organization the average of the closing bid and asked price per
Share on such date (or, if there was no trading in the Shares on such date, on
the next preceding day on which there was trading) as provided by such
organization; and (iii) if the Shares are not traded on a registered securities
exchange and the bid and asked prices per Share are not provided by NASDAQ, the
National Quotation Bureau Incorporated or any similar organization, as
determined by the agreement of the parties in good faith or, in the absence of
such agreement, as determined pursuant to arbitration under the auspices of the
American Arbitration Association
6. Anything in this Agreement to the contrary notwithstanding, in no
event may the Option be exercisable if the Company shall determine in good faith
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 reasonably 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 (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
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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 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 the 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 shares represented by this certificate have not been registered
under the Securities Act of 1933. 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 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 Annual Report to Shareholders, 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,
the principal officers of the Company will be reasonably available to discuss
with the Optionee the information contained in these documents.
8. This Agreement shall be construed and enforced in accordance with
the laws of the State of Delaware.
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9. Subject to Paragraphs 1(c) and 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
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DATASCOPE CORP.
By:___________________________________ ___________________________________
Optionee
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