EXHIBIT 10.1
DATASCOPE CORP
STOCK OPTION AGREEMENT
Agreement, made as of the 15th day of May, 2001 between DATASCOPE CORP.
(the "Company"), a Delaware corporation, and Xxxxxxx X. Xxxxxxxxx (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 May 15, 2001. The Company has agreed that, in
addition to director's fees, the Optionee should receive a ten-year option to
purchase 5,000 shares of Common Stock of the Company. Accordingly, on May 15,
2001 the Board of Directors of the Company approved the grant by the Company to
the Optionee of a stock option to purchase 5,000 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 $35.22 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 5,000 Shares on May 15, 2001 and ending May 14, 2011; 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 May 14, 2011.
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 (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 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 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.
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.
OPTIONEE:
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DATASCOPE CORP.
By:
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