EXHIBIT 10.2
DATASCOPE CORP.
STOCK OPTION AGREEMENT
THIS AGREEMENT (the "Agreement"), made as of this 15th day of May,
2001, by and between DATASCOPE CORP. (the "Company"), a Delaware corporation,
and Xxxxxx X. Xxxxxxx (the "Optionee"), residing at ___________________________.
WHEREAS, Optionee is a consultant to the Company pursuant to the terms
of that certain letter agreement dated July 1, 1999;
WHEREAS, the Board of Directors of the Company or, if so designated, a
Committee of the Board of Directors (the "Committee") has adopted a resolution
granting Optionee a stock option (the "Option") to purchase 500 shares of the
Company's Common Stock, par value $.01 per share ("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 $39.45 per share subject to adjustment
as provided in Paragraph 4 below.
(b) Unless the Option is previously terminated pursuant to
this Agreement, the Option shall be exercisable during the period or periods
specified in the table below:
Number of Shares Exercisable On or After Exercisable Until
---------------- ----------------------- -----------------
125 5-15-02 5-14-11
125 5-15-03 5-14-11
125 5-15-04 5-14-11
125 5-15-05 5-14-11
In no event shall any Shares be purchasable under this Agreement after May 14,
2011 (the "Expiration Date"). Except as provided in subparagraph 1(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 the 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 is a 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 the 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 the Company or any subsidiary
of the Company.
(d) 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.
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
ten 10) days prior to the date therein specified to the address of Optionee
specified on page 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 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 (i) 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 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 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.
8. (a) Notwithstanding anything to the contrary that may be
contained 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 (2) trading days to
accept or reject such offer. In the event the Company agrees to purchase such
Shares, the certificate or certificates evidencing such Shares shall forthwith
be delivered to the Company against full payment of an amount of money in the
form of cash or check equal to the product of (x) the number of Shares that are
the subject of such offer and (y) the Offer Price.
(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) The Committee shall have the power in its discretion to
lessen or eliminate the period of time during which the transfer of the Shares
is restricted under subparagraph 8(a) and/or to eliminate or modify in the
Optionee's favor the Company's right to purchase the Shares pursuant to this
Paragraph 8, 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), 8(a) and
8(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.
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:
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Optionee Name:
Title:
