EXHIBIT 4.2
DATASCOPE CORP
STOCK OPTION AGREEMENT
THIS AGREEMENT (the "Agreement"), made as of this ____ day of ________,
_____, by and between DATASCOPE CORP "Company"), a Delaware corporation, and
______________ ("Optionee"), residing at _____________________________.
Pursuant to a Consultant Agreement dated ___________ by and among
___________ (the "Company") and the Optionee (_________), the Optionee has been
serving and shall continue to serve the Company as a consultant (the "Consulting
Period"). In recognition of the consulting services provided by the Optionee
under the terms of the Consulting Agreement, the Compensation Committee of the
Board of Directors of the Company on __________ ____, ____ granted to the
Optionee a stock option effective _________ ____, _____ to purchase up to
_______ shares of the Company's Common Stock, par value $.01 per share the
"Shares") subject to and upon the terms and conditions hereinafter set forth
(the "Option").
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 for the number of shares set forth in
the table below upon the achievement of the objective set forth in the column
opposite such number of shares in the table below:
Objective to be Achieved
(On or After Which Shares
May be Purchased
Number of Shares Pursuant to the Option)
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Sales as used herein shall mean the total invoiced amount of all sales by
Datascope of Products (as defined below), less cash and trade discounts,
returns, allowances, free goods and replacements, taxes applicable to such sales
and governmental charges assumed and delivery charges borne by Datascope. The
term Products as used herein shall have the same meaning as is given to that
term in that certain License Agreement made the ____ day of ________, _____, by
and among Datascope Corp., and __________, and the Optionee.
In no event shall any Shares be purchasable under this Agreement after
________________, _____ (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 or
employee of Company or any subsidiary of the Company, and all rights of Optionee
hereunder shall thereupon terminate. For purposes of this Agreement, a
subsidiary of the Company is a "subsidiary corporation" as defined in Section
424 (f) of the Internal Revenue Code of 1954, as amended (the "Code") or any
partnership of which the Company or any subsidiary of the Company general
partner.
(c) If Optionee ceases to be a consultant or employee of the
Company or any subsidiary of the Company and this cessation is due to retirement
(as defined by the Board or, if so designated, by the Committee in its sole
discretion), or to disability (as defined in each case by the Board or, if so
designated, by the Committee in its sole discretion) or to death the option
shall be exercisable as provided in this subparagraph 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 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 to the Company or any
subsidiary of the Company was terminated, provided however, that such exercise
must be in accordance with the terms of this Agreement and within three (3)
months of Optionee's retirement or within one 1 year of Optionee's disability or
death, as the case may be In no event however, shall Optionee or his executor or
administrator, as he 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 he Company or any subsidiary of the Company.
(b) The Option is not intended to satisfy the requirements for an
incentive stock option under the Code. 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 any subsidiary of the
Company or to derogate from any right of the Company or any subsidiary thereof
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.
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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 1(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 or, if so designated, by the Committee,
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. 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
1(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
(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
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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 or, if so designated,
the Committee, 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 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. 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 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 he 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 or, if so designated, the Committee, 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.
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8. (a) Without the prior written consent of Company, Optionee shall not
sell, transfer, pledge, hypothecate or otherwise dispose of any Shares acquired
upon the exercise of the option or any interest therein for a period of seven
months following such exercise In the event that during the first six (6) months
of such period Optionee shall, for any reason (other than death), cease to be a
consultant or subsequently an employee of the Company or its subsidiaries, then
forthwith upon the occurrence of such event, Optionee, if requested by the
Company, shall be required to sell to the Company all such Shares owned by him
which are then subject to restriction under this subparagraph 8(a) for a price
equal to the aggregate exercise price paid for such Shares. The Company may
exercise its right to repurchase shares by mailing notice of exercise to
Optionee prior to the expiration of the Company's repurchase right. In the event
the Company repurchases such Shares, the certificate or certificates evidencing
such Shares shall forthwith be delivered to the Company against full payment of
the sum of (i) an amount of money in the form of cash or check equal to the
amount, if any, paid by Optionee in cash or check as payment of the exercise
price, and (ii) a number of shares equal to the number of shares, if any, paid
by Optionee as payment of the exercise price, without regard to the then fair
market value of such Shares. In the event Optionee had paid the option exercise
price, in whole or in part, in shares, then the Company shall delay such
repurchase until six 6 (6) months and ten (10) days from the date Optionee
ceased to be a consultant or subsequently an employee of the Company or its
subsidiaries.
(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.
(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 of
Paragraph 7 in connection with any sale or other disposition of any such Shares.
(d) The Board or, if so designated, the Committee 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 1(c), 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.
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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:_______________________________
Optionee
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