-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LF4y/aM+w34phbHR8dcg3gz5UQov4okFZpCl30p946gOh3UI1NxJfZu47PVzQzn7 xXqrLVnZUAiWW/qPdIx21g== 0001125282-03-003682.txt : 20030530 0001125282-03-003682.hdr.sgml : 20030530 20030530145003 ACCESSION NUMBER: 0001125282-03-003682 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20030530 EFFECTIVENESS DATE: 20030530 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DATASCOPE CORP CENTRAL INDEX KEY: 0000027096 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 132529596 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-42747 FILM NUMBER: 03725598 BUSINESS ADDRESS: STREET 1: 14 PHILLIPS PKWY CITY: MONTVALE STATE: NJ ZIP: 07645-9998 BUSINESS PHONE: 2013918100 MAIL ADDRESS: STREET 1: 14 PHILIPS PARKWAY CITY: MONTVALE STATE: NJ ZIP: 07645 S-8 POS 1 b325220_s8.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on May 30, 2003 Registration No. 333- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ DATASCOPE CORP. (Exact Name of Registrant as Specified in Its Charter) Delaware 13-2529596 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 14 Philips Parkway Montvale, New Jersey 07645 (Address of Principal Executive Offices) (Zip Code) ------------ AMENDED AND RESTATED DATASCOPE CORP. COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS AND COMMON STOCK ISSUABLE UNDER STOCK OPTION AGREEMENTS (Full Title of the Plan) ------------ With a copy to: Lawrence Saper Gerald Adler, Esq. Chairman of the Board and Swidler Berlin Shereff Friedman, LLP Chief Executive Officer The Chrysler Building Datascope Corp. 405 Lexington Avenue 14 Philips Parkway New York, New York 10174 Montvale, New Jersey 07645 (212) 973-0111 (201) 391-8100 (Name, Address and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------- Title of Each Class of Amount To Be Proposed Maximum Proposed Maximum Aggregate Amount Of Securities To Be Registered Registered (1) Offering Price Per Share Offering Price (2) Registration Fee (2) (3) - --------------------------------------------------------------------------------------------------------------------- Common Stock, par value 131,200 $29.41 $3,858,592 $312.16 $.01 per share - ---------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416, this Registration Statement also covers such additional securities as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) as set forth in Note 3. (3) The Registration Fee has been calculated pursuant to Rule 457(h) as follows: 131,200 multiplied by .0000809 multiplied by $29.41 (representing the quotient obtained by dividing (a) the sum of (i) 95,000, representing the number of shares under the Amended and Restated Compensation Plan for Non-Employee Directors which are being registered hereunder and are not subject to currently outstanding option agreements or otherwise outstanding, multiplied by $31.195, the average of the high and low sale prices of the Registrant's Common Stock as quoted on The Nasdaq National Market System on May 28, 2003, (ii) 30,000, representing the number of shares under the Amended and Restated Compensation Plan for Non-Employee Directors which are being registered hereunder and are subject to currently outstanding option agreements, multiplied by $25.176, the exercise price under such option agreements, and (iii) 6,200, representing the number of shares subject to option agreements between the Registrant and certain consultants, multiplied by $22.49, the exercise price under such option agreements), by (b) 131,200. INTRODUCTION The Registrant previously filed a registration statement on Form S-8 (the "Prior Registration Statement") with the Securities and Exchange Commission (SEC File No. 333-42747) in connection with the registration of shares of the Registrant's common stock to be issued under the Datascope Corp. Compensation Plan for Non-Employee Directors (the "Plan"). This Registration Statement on Form S-8 is being filed for the purposes of (i) registering an additional 125,000 shares of common stock of the Registrant to be issued pursuant to the Plan and (ii) registering 6,200 shares of common stock of the Registrant to be issued upon exercise of stock option agreements between the Registrant and consultants of the Registrant. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. In addition to the Prior Registration Statement, the following documents that have been filed by the Registrant with the Securities and Exchange Commission are incorporated herein by reference: a. Annual Report on Form 10-K for the fiscal year ended June 30, 2002. b. Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2002. c. Definitive Proxy Statement on Schedule 14A as filed on October 28, 2002. d. Form 8-K filed on December 10, 2002. e. Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2002. f. Form 8-K filed on April 25, 2003. g. Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2003. h. The description of the Registrant's common stock, par value $0.01 per share, contained in the Registrant's Registration Statement on Form 8-A filed with the Securities and Exchange Commission, including any amendment or report filed for the purpose of updating such description. In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the securities offered under this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement as of the date of the filing of such documents. Any statement contained in the documents incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded, shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. Item 5. Interest of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. The indemnification of officers and directors of the Registrant is governed by Section 145 of the General Corporation Law of the State of Delaware (the "DGCL"), the Restated Certificate of Incorporation and the By-Laws of the Registrant. Subsection (a) of DGCL Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. Subsection (b) of DGCL Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. DGCL Section 145 further provides that to the extent that a present or former director or officer is successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. In all cases in which indemnification is permitted under subsections (a) and (b) of Section 145 (unless ordered by a court), it shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the applicable standard of conduct has been met by the party to be indemnified. Such determination must be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders. The statute authorizes the corporation to pay expenses incurred by an officer or director in advance of the final disposition of a proceeding upon receipt of an undertaking by or on behalf of the person to whom the advance will be made, to repay the advances if it shall ultimately be determined that he was not entitled to indemnification. DGCL Section 145 also provides that indemnification and advancement of expenses permitted thereunder are not to be exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-Law, agreement, vote of stockholders or disinterested directors, or otherwise. DGCL Section 145 also authorizes the corporation to purchase and maintain liability insurance on behalf of its directors, officers, employees and agents regardless of whether the corporation would have the statutory power to indemnify such persons against the liabilities insured. The Restated Certificate of Incorporation of the Registrant (the "Certificate") provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for paying a dividend or approving a stock repurchase in violation of Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant's By-Laws provide that the Registrant shall indemnify an officer or director for any costs incurred by such officer or director in connection with a proceeding against such officer or director by reason of the fact that he is or was an officer or director of the Registrant, unless such indemnification is prohibited under applicable law. Pursuant to the By-Laws, the Registrant may also be required to advance funds to an officer or director who is entitled to indemnification upon receipt of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined that such person is not entitled to indemnification. The By-Laws further provide that the Registrant may provide indemnification or the advancement of expenses to any other person as permitted by applicable law. Such By-Law provisions are intended to be broader than the statutory indemnification provided in the DGCL. However, the extent to which such broader indemnification may be permissible under Delaware law has not been established. In addition, the Registrant maintains directors' & officers' liability policies. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. The following exhibits are filed as part of this Registration Statement: 4.1 Amended and Restated Datascope Corp. Compensation Plan for Non-Employee Directors, incorporated by reference to Appendix A of the Registrant's 2002 Proxy Statement, dated October 28, 2002, on file with the Commission. 4.2 Stock Option Agreement dated as of February 25, 2003 between the Registrant and David Altschiller. 4.3 Stock Option Agreement dated as of February 25, 2003 between the Registrant and Dr. Samuel Money. 5.1 Opinion of Swidler Berlin Shereff Friedman, LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Swidler Berlin Shereff Friedman, LLP (included in Exhibit 5.1). 24.1 Power of Attorney (included in signature page to this Registration Statement). Item 9. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(l)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, hereunto duly authorized, in the City of Montvale, State of New Jersey, on this May 30, 2003. DATASCOPE CORP. By: /s/ Murray Pitkowsky ---------------------------------------------- Name: Murray Pitkowsky Title: Senior Vice President, Chief Financial Officer, Treasurer and Secretary (Principal Financial Officer) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose signature appears below constitutes and appoints Lawrence Saper and Murray Pitkowsky and each of them (with full power of each of them to act alone), his true and lawful attorneys-in-fact, with full power of substitution and resubstitution for him and on his behalf, and in his name, place and stead, in any and all capacities to execute and sign any and all amendments or post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof and the Registrant hereby confers like authority on its behalf. Pursuant to the requirements of the Securities Act of 1933, the Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Lawrence Saper Chairman of the Board and Chief Executive Officer May 30, 2003 - ------------------------------------ (Principal Executive Officer) Lawrence Saper /s/ Fred Adelman Chief Accounting Officer and Corporate Controller May 30, 2003 - ------------------------------------ (Principal Accounting Officer) Fred Adelman /s/ Alan B. Abramson Director May 30, 2003 - ------------------------------------ Alan B. Abramson /s/ David Altschiller Director May 30, 2003 - ------------------------------------ David Altschiller /s/ William L. Asmundson Director May 30, 2003 - ------------------------------ William L. Asmundson /s/ George Heller Director May 30, 2003 - ------------------------------------ George Heller /s/ Arno Nash Director May 30, 2003 - ------------------------------------ Arno Nash
DATASCOPE CORP. FORM S-8 REGISTRATION STATEMENT EXHIBIT INDEX Exhibit No. Description - ----------- ----------- 4.1 Amended and Restated Datascope Corp. Compensation Plan for Non-Employee Directors, incorporated by reference to Appendix A of the Registrant's 2002 Proxy Statement, dated October 28, 2002, on file with the Commission. 4.2 Stock Option Agreement dated as of February 25, 2003 between the Registrant and David Altschiller. 4.3 Stock Option Agreement dated as of February 25, 2003 between the Registrant and Dr. Samuel Money. 5.1 Opinion of Swidler Berlin Shereff Friedman, LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Swidler Berlin Shereff Friedman, LLP (included in Exhibit 5.1). 24.1 Power of Attorney (included in signature page to this Registration Statement). EX-4.2 3 b325220ex4_2.txt STOCK OPTION AGREEMENT EXHIBIT 4.2 DATASCOPE CORP. STOCK OPTION AGREEMENT Agreement, made as of the 25th day of February 2003, between DATASCOPE CORP., a Delaware corporation (the "Company"), and David Altschiller (the "Optionee"), residing at 80 River Road, Stockton, New Jersey 08559. The Board of Directors of the Company (the "Board of Directors") has adopted a resolution granting the Optionee a ten-year option to purchase 5,000 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 $22.49 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. 2 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 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. 3 (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. 4 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. [Remainder of this page intentionally left blank.] 5 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/ Murray Pitkowsky ------------------------ Name: Title: /s/ David Altschiller ---------------------------- Optionee 6 EX-4.3 4 b325220ex4_3.txt STOCK OPTION AGREEMENT EXHIBIT 4.3 DATASCOPE CORP. STOCK OPTION AGREEMENT Agreement, made as of the 25th day of February 2003, between DATASCOPE CORP., a Delaware corporation (the "Company"), and Dr. Samuel Money (the "Optionee"), residing at 1514 Jefferson Highway, New Orleans, Louisiana 70121. The Board of Directors of the Company (the "Board of Directors") has adopted a resolution granting the Optionee a five-year option to purchase 1,200 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 $22.49 per share. (b) Unless this Option is previously terminated pursuant to the terms of this Agreement, this Option shall be exercisable on or after August 25, 2003. If, prior to August 25, 2003, the Optionee shall at any such time voluntarily or involuntarily cease to serve as a consultant of the Company or any of its subsidiaries or if the Optionee's service shall terminate on account of death or disability, the Option, and all rights of Optionee hereunder, shall terminate. (c) If the Optionee shall at any time voluntarily or involuntarily cease to serve as a consultant of the Company or any of its subsidiaries 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 or such subsidiary (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 or such subsidiary. (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 any of its subsidiaries or (ii) to derogate from any right of the Company or any of its subsidiaries 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. 2 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 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. 3 (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. 4 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. [Remainder of this page intentionally left blank.] 5 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/ Murray Pitkowsky ----------------------------------- Name: Title: /s/ Dr. Samuel Money --------------------------------------- Optionee 6 EX-5.1 5 b325220ex5_1.txt OPINION LETTER EXHIBIT 5.1 [LETTERHEAD OF SWIDLER BERLIN SHEREFF FRIEDMAN, LLP] May 30, 2003 Datascope Corp. 14 Philips Parkway Montvale, New Jersey 07645 Ladies and Gentlemen: On the date hereof, Datascope Corp., a Delaware corporation (the "Company"), intends to file with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, as amended, on Form S-8 (the "Registration Statement") relating to (a) 125,000 shares of the Company's common stock, par value $0.01 per share (the "Common Stock"), which are being offered pursuant to the Company's Amended and Restated Compensation Plan for Non-Employee Directors (the "Plan") and various award agreements ("Plan Agreements") with non-employee directors of the Company, (b) 5,000 shares of Common Stock, which are being offered to David Altschiller pursuant to a Stock Option Agreement (the "Altschiller Agreement") and (c) 1,200 shares of Common Stock which are being offered to Dr. Samuel Money pursuant to a Stock Option Agreement (the "Money Agreement"). The shares of Common Stock issued under the Plan, the Altschiller Agreement and the Money Agreement are herein referred to as the "Shares." This opinion is an exhibit to the Registration Statement. We have at times acted as special counsel to the Company in connection with certain corporate and securities matters, and in such capacity we are familiar with the various corporate and other proceedings relating to the proposed offer and sale of the Shares as contemplated by the Registration Statement. However, we are not general counsel to the Company and would not ordinarily be familiar with or aware of matters relating to the Company unless they are brought to our attention by representatives of the Company with respect to matters upon which we have been specifically requested to function. In connection with this opinion, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of (i) the Company's Certificate of Incorporation as presently in effect, (ii) the Company's By-Laws as presently in effect, (iii) minutes and other instruments evidencing actions taken by the Company's directors, (iv) the Plan, (v) the Plan Agreements as currently executed and as a form intended to be used for future grants under the Plan, (vi) the Altschiller Agreement and (v) the Money Agreement. In our examination of all such agreements, documents, certificates and instruments, we have assumed the genuineness of all signatures, the authenticity of all agreements, documents, certificates and instruments submitted to us as originals and the conformity with the originals of all agreements, documents, certificates and instruments submitted to us as certified, conformed or photostatic copies. Insofar as this opinion relates to securities to be issued in the future, we have assumed that all applicable laws, rules and regulations in effect at the time of such issuance will be the same as such laws, rules and regulations in effect as of the date hereof. Datascope Corp. May 30, 2003 Page 2 Subject to the following sentence, our opinion is limited to the laws of the State of New York. To the extent that the opinion expressed herein involves the corporate law of the State of Delaware, our opinion is based solely upon our reading of standard compilations of the Delaware General Corporation Law as presently in effect, without any investigation of the legal decisions or other statutory provisions in effect in such state that may relate to the opinions expressed herein. We express no opinion as to the application of the securities or "Blue Sky" laws of any state to the offer and/or sale of the Shares. Based on the foregoing, and subject to and in reliance on, the accuracy and completeness of the information relevant thereto provided to us, it is our opinion that the Shares have been duly authorized, and subject to the effectiveness of the Registration Statement and compliance with applicable state securities laws, when issued in accordance with the terms, as applicable, of the Plan and any applicable Plan Agreements, the Altschiller Agreement and the Money Agreement, will be legally and validly issued, fully paid and non-assessable. It should be understood that nothing in this opinion is intended to apply to any disposition of the Shares which any participant or optionee in the Plan, the Altschiller Agreement or the Money Agreement might propose to make. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to any filing made by the Company under the securities or other laws of any state of the United States in which the Shares may be offered and sold. This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose, except as expressly provided in the preceding paragraph, without our express written consent, and no party other than you is entitled to rely on it. This opinion is rendered to you as of the date hereof, and we undertake no obligation to advise you of any change in any applicable law or in facts or circumstances which might affect any matters or opinions set forth herein. Very truly yours, Swidler Berlin Shereff Friedman, LLP EX-1 6 b325220ex23_1.txt INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Datascope Corp. on Form S-8 of our report dated July 22, 2002, appearing in the Annual Report on Form 10-K of Datascope Corp. for the year ended June 30, 2002. DELOITTE & TOUCHE LLP New York, New York May 29, 2003 -----END PRIVACY-ENHANCED MESSAGE-----