EXHIBIT 10.24
DIGIRAD CORPORATION
STOCK OPTION AGREEMENT
RECITALS
A. The Board of Directors of the Corporation has adopted the Digirad
Corporation 1998 Stock Option/Stock Issuance Plan (the "Plan") for the
purpose of attracting and retaining the services of persons who contribute to
the growth and financial success of the Corporation.
B. Optionee is a person who the Plan Administrator believes has and
will contribute to the growth and financial success of the Corporation and
this Agreement is executed pursuant to and is intended to carry out the
purposes of the Plan.
AGREEMENT
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. Subject to and upon the terms and conditions set
forth in this Agreement, the Corporation hereby grants to Optionee, as of the
grant date (the "Grant Date") specified in the accompanying Notice of Grant
of Stock Option (the "Grant Notice"), a stock option to purchase up to that
number of shares of the Corporation's Common Stock (the "Option Shares") as
is specified in the Grant Notice. The Option Shares shall be purchasable from
time to time during the option term at the option price per share (the
"Option Price") specified in the Grant Notice. Capitalized terms used herein
which are not otherwise defined shall have the meaning ascribed to such terms
in the Plan.
2. OPTION TERM. This option shall have a maximum term of ten (10)
years measured from the Grant Date and shall expire at the close of business
on the expiration date (the "Expiration Date") specified in the Grant Notice,
unless sooner terminated in accordance with Paragraph 5, 6 or 17.
3. LIMITED TRANSFERABILITY. This option shall be neither
transferable nor assignable by Optionee other than by will or by the laws of
descent and distribution following Optionee's death and may be exercised,
during Optionee's lifetime, only by Optionee.
4. DATES OF EXERCISE. This option may not be exercised in whole or
in part at any time prior to the time the Plan is approved by the
Corporation's shareholders in accordance with Paragraph 17. Provided such
shareholder approval is obtained, this option shall thereupon become
exercisable for the Option Shares in one or more installments as is specified
in the Grant Notice. As the option becomes exercisable in one or more
installments, the installments shall accumulate and the option shall remain
exercisable for such installments until the Expiration Date or the sooner
termination of the option term under Paragraph 5 or Paragraph 6 of this
Agreement.
5. SPECIAL TERMINATION OF OPTION TERM. The option term specified in
Paragraph 2 shall terminate (and this option shall cease to be exercisable)
prior to the Expiration Date should any of the following provisions become
applicable:
(i) Except as otherwise provided in
subparagraph (ii) or (iii) below, should Optionee cease to remain in
Service while this option is outstanding, then the period for
exercising this option shall be reduced to a three (3)-month period
commencing with the date of such cessation of Service, but in no
event shall this option be exercisable at any time after the
Expiration Date. Upon the expiration of such three (3)-month period
or (if earlier) upon the Expiration Date, this option shall
terminate and cease to be outstanding.
(ii) Should Optionee die while this
option is outstanding, then the personal representative of the
Optionee's estate or the person or persons to whom the option is
transferred pursuant to the Optionee's will or in accordance with
the law of descent and distribution shall have the right to exercise
this option. Such right shall lapse and this option shall cease to
be exercisable upon the EARLIER of (A) the expiration of the twelve
(12) month period measured from the date of Optionee's death or (B)
the Expiration Date. Upon the expiration of such twelve (12) month
period or (if earlier) upon the Expiration Date, this option shall
terminate and cease to be outstanding.
(iii) Should Optionee become permanently
disabled and cease by reason thereof to remain in Service while this
option is outstanding, then the Optionee shall have a period of
twelve (12) months (commencing with the date of such cessation of
Service) during which to exercise this option, but in no event shall
this option be exercisable at any time after the Expiration Date.
Optionee shall be deemed to be permanently disabled if Optionee is
unable to engage in any substantial gainful activity for the
Corporation or the parent or subsidiary corporation retaining
his/her services by reason of any medically determinable physical or
mental impairment, which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not
less than twelve (12) months. Upon the expiration of such limited
period of exercisability or (if earlier) upon the Expiration Date,
this option shall terminate and cease to be outstanding.
(iv) During the limited period of
exercisability applicable under subparagraph (i), (ii) or (iii)
above, this option may be exercised for any or all of the Option
Shares for which this option is, at the time of the Optionee's
cessation of Service, exercisable in accordance with the exercise
schedule specified in the Grant Notice and the provisions of
Paragraph 6 of this Agreement.
(v) For purposes of this Paragraph 5
and for all other purposes under this Agreement:
A. The Optionee shall be deemed to remain in Service for so
long as the Optionee continues to render periodic services to the Corporation
or any parent or subsidiary
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corporation, whether as an Employee, a non-employee member of the board of
directors, or an independent contractor or consultant.
B. The Optionee shall be deemed to be an EMPLOYEE of the
Corporation and to continue in the Corporation's employ for so long as the
Optionee remains in the employ of the Corporation or one or more of its
parent or subsidiary corporations, subject to the control and direction of
the employer entity as to both the work to be performed and the manner and
method of performance.
C. A corporation shall be considered to be a SUBSIDIARY
corporation of the Corporation if it is a member of an unbroken chain of
corporations beginning with the Corporation, provided each such corporation
in the chain (other than the last corporation) owns, at the time of
determination, stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
D. A corporation shall be considered to be a PARENT
corporation of the Corporation if it is a member of an unbroken chain ending
with the Corporation, provided each such corporation in the chain (other than
the Corporation) owns, at the time of determination, stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
6. EFFECT OF CORPORATE TRANSACTION.
A. Optionee shall automatically vest in full with respect
to all of the Option Shares in the event of a Corporate Transaction so that
each such option shall, immediately prior to the effective date of the
Corporate Transaction, may be exercised for any or all of the Option Shares
as fully-vested shares of Common Stock, provided that the Option Shares shall
not automatically vest in full if and to the extent: (i) this option is, in
connection with the Corporate Transaction, either to be assumed by the
successor corporation (or parent thereof) or to be replaced with a comparable
option to purchase shares of the capital stock of the successor corporation
(or parent thereof), or (ii) such option is to be replaced with a cash
incentive program of the successor corporation which preserves the spread
existing on the unvested option shares at the time of the Corporate
Transaction and provides for subsequent payout in accordance with the same
vesting schedule applicable to those option shares. The determination of
option comparability under clause (i) above shall be made by the Plan
Administrator, and its determination shall be final, binding and conclusive.
B. To the extent not previously exercised, this Option
shall terminate and cease to be exercisable upon the consummation of a
Corporate Transaction unless it is expressly assumed by the successor
corporation or parent thereof.
C. Option Shares available under any options which are
assumed or replaced in the Corporate Transaction and do not otherwise
accelerate at that time, shall automatically vest in full in the event the
Optionee's Service should subsequently terminated by reason of an Involuntary
Termination within twenty-four (24) months following the effective date of
such Corporate Transaction. Any options so accelerated shall remain
exercisable for fully-vested
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shares until the EARLIER of (i) the expiration of the option term or (ii) the
expiration of the one (1)-year period measured from the effective date of the
Involuntary Termination.
D. This Agreement shall not in any way affect the right of
the Corporation to adjust, reclassify, reorganize or otherwise make changes
in its capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
7. EFFECT OF CHANGE IN CONTROL
In the event of any Change in Control, Optionee shall
automatically vest in full with respect to all Option Shares so that each
such option shall, immediately prior to the effective date of the Change in
Control, be fully exercisable for any or all of Option Shares as fully-vested
shares of Common Stock.
8. ADJUSTMENT IN OPTION SHARES.
A. In the event any change is made to the Corporation's
outstanding Common Stock by reason of any stock split, stock dividend,
combination of shares, exchange of shares, or other change affecting the
outstanding Common Stock as a class without receipt of consideration, then
appropriate adjustments shall be made to (i) the total number of Option
Shares subject to this option, (ii) the number of Option Shares for which
this option is to be exercisable from and after each installment date
specified in the Grant Notice and (iii) the Option Price payable per share in
order to reflect such change and thereby preclude a dilution or enlargement
of benefits hereunder.
B. If this option is to be assumed in connection with a
Corporate Transaction described in Paragraph 6 or is otherwise to remain
outstanding, then this option shall be appropriately adjusted, immediately
after such Corporate Transaction, to apply and pertain to the number and
class of securities which would have been issuable to the Optionee in the
consummation of such Corporate Transaction had the option been exercised
immediately prior to such Corporate Transaction, and appropriate adjustments
shall also be made to the Option Price payable per share, provided the
aggregate Option Price payable hereunder shall remain the same.
9. PRIVILEGE OF STOCK OWNERSHIP. The holder of this option
shall not have any of the rights of a shareholder with respect to the Option
Shares until such individual shall have exercised the option and paid the
Option Price.
10. MANNER OF EXERCISING OPTION.
A. In order to exercise this option with respect to all or
any part of the Option Shares for which this option is at the time
exercisable, Optionee (or in the case of exercise after Optionee's death, the
Optionee's executor, administrator, heir or legatee, as the case may be) must
take the following actions:
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(i) Execute and deliver to the Secretary
of the Corporation a stock purchase agreement (the "Purchase
Agreement") in substantially the form of Exhibit B to the Grant Notice.
(ii) Pay the aggregate Option Price
for the purchased shares in one or more forms approved under the
Plan.
(iii) Furnish to the Corporation
appropriate documentation that the person or persons exercising the
option, if other than Optionee, have the right to exercise this option.
B. For purposes of this Agreement, the Exercise Date shall
be the date on which the executed Purchase Agreement shall have been
delivered to the Corporation, and the fair market value of a share of Common
Stock on any relevant date shall be determined in accordance with
subparagraphs (i) through (iii) below:
(i) If the Common Stock is not at the
time listed or admitted to trading on any stock exchange but is
traded on the NASDAQ National Market System, the fair market value
shall be the closing selling price of one share of Common Stock on
the date in question, as such price is reported by the National
Association of Securities Dealers through its NASDAQ system or any
successor system. If there is no closing selling price for the
Common Stock on the date in question, then the closing selling price
on the last preceding date for which such quotation exists shall be
determinative of fair market value.
(ii) If the Common Stock is at the
time listed or admitted to trading on any stock exchange, then the
fair market value shall be the closing selling price per share of
Common Stock on the date in question on the stock exchange
determined by the Plan Administrator to be the primary market for
the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no
reported sale of Common Stock on such exchange on the date in
question, then the fair market value shall be the closing selling
price on the exchange on the last preceding date for which such
quotation exists.
(iii) If the Common Stock at the time
is neither listed nor admitted to trading on any stock exchange nor
traded in the over-the-counter market, or if the Plan Administrator
determines that the value determined pursuant to subparagraphs (i)
and (ii) above does not accurately reflect the fair market value of
the Common Stock, then such fair market value shall be determined by
the Plan Administrator after taking into account such factors as the
Plan Administrator shall deem appropriate.
C. As soon after the Exercise Date as practical, the
Corporation shall mail or deliver to Optionee or to the other person or
persons exercising this option a certificate or certificates representing the
shares so purchased and paid for, with the appropriate legends affixed
thereto.
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D. In no event may this option be exercised for any
fractional shares.
11. COMPLIANCE WITH LAWS AND REGULATIONS.
A. The exercise of this option and the issuance of Option
Shares upon such exercise shall be subject to compliance by the Corporation
and the Optionee with all applicable requirements of law relating thereto and
with all applicable regulations of any stock exchange on which shares of the
Corporation's Common Stock may be listed at the time of such exercise and
issuance.
B. In connection with the exercise of this option, Optionee
shall execute and deliver to the Corporation such representations in writing
as may be requested by the Corporation in order for it to comply with the
applicable requirements of Federal and State securities laws.
12. SUCCESSORS AND ASSIGNS. Except to the extent otherwise
provided in Paragraph 3 or 6, the provisions of this Agreement shall inure to
the benefit of, and be binding upon, the successors, administrators, heirs,
legal representatives and assigns of Optionee and the successors and assigns
of the Corporation.
13. LIABILITY OF CORPORATION.
A. If the Option Shares covered by this Agreement exceed,
as of the Grant Date, the number of shares of Common Stock which may without
shareholder approval be issued under the Plan, then this option shall be void
with respect to such excess shares, unless shareholder approval of an
amendment sufficiently increasing the number of shares of Common Stock
issuable under the Plan is obtained in accordance with the provisions of
Article IV, Section 3, of the Plan.
B. The inability of the Corporation to obtain approval from
any regulatory body having authority deemed by the Corporation to be
necessary to the lawful issuance and sale of any Common Stock pursuant to
this option shall relieve the Corporation of any liability with respect to
the non-issuance or sale of the Common Stock as to which such approval shall
not have been obtained. The Corporation, however, shall use its best efforts
to obtain all such approvals.
14. NOTICES. Any notice required to be given or delivered to
the Corporation under the terms of this Agreement shall be in writing and
addressed to the Corporation in care of the Corporate Secretary at its
principal corporate offices. Any notice required to be given or delivered to
Optionee shall be in writing and addressed to Optionee at the address
indicated below Optionee's signature line on the Grant Notice. All notices
shall be deemed to have been given or delivered upon personal delivery or
upon deposit in the U.S. mail, postage prepaid and properly addressed to the
party to be notified.
15. LOANS. The Plan Administrator may, in its absolute
discretion and without any obligation to do so, assist the Optionee in the
exercise of this option by (i) authorizing the
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extension of a loan to the Optionee from the Corporation or (ii) permitting
the Optionee to pay the option price for the purchased Common Stock in
installments over a period of years. The terms of any such loan or
installment method of payment (including the interest rate, the requirements
for collateral and the terms of repayment) shall be established by the Plan
Administrator in its sole discretion.
16. CONSTRUCTION. This Agreement and the option evidenced hereby are
made and granted pursuant to the Plan and are in all respects limited by and
subject to the express terms and provisions of the Plan. All decisions of the
Plan Administrator with respect to any question or issue arising under the
Plan or this Agreement shall be conclusive and binding on all persons having
an interest in this option.
17. GOVERNING LAW. The interpretation, performance, and enforcement
of this Agreement shall be governed by the laws of the State of Delaware
without resort to that State's conflict-of-laws rules.
18. SHAREHOLDER APPROVAL. The grant of this option is subject to
approval of the Plan by the Corporation's shareholders within twelve (12)
months after the adoption of the Plan by the Board of Directors.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THIS OPTION
MAY NOT BE EXERCISED IN WHOLE OR IN PART UNTIL SUCH SHAREHOLDER APPROVAL IS
OBTAINED. In the event that such shareholder approval is not obtained, then
this option shall thereupon terminate in its entirety and the Optionee shall
have no further rights to acquire any Option Shares hereunder.
19. ADDITIONAL TERMS APPLICABLE TO AN INCENTIVE STOCK OPTION. In the
event this option is designated an incentive stock option in the Grant
Notice, the following terms and conditions shall also apply to the grant:
A. This option shall cease to qualify for favorable tax
treatment as an incentive stock option under the Federal tax laws if (and to
the extent) this option is exercised for one or more Option Shares: (i) more
than three (3) months after the date the Optionee ceases to be an Employee
for any reason other than death or permanent disability (as defined in
Paragraph 5) or (ii) more than one (1) year after the date the Optionee
ceases to be an Employee by reason of permanent disability.
B. Should this option be designated as immediately
exercisable in the Grant Notice, then this option shall not become
exercisable in the calendar year in which granted if (and to the extent) the
aggregate fair market value (determined at the Grant Date) of the
Corporation's Common Stock for which this option would otherwise first become
exercisable in such calendar year would, when added to the aggregate fair
market value (determined as of the respective date or dates of grant) of the
Corporation's Common Stock for which this option or one or more other
incentive stock options granted to the Optionee prior to the Grant Date
(whether under the Plan or any other option plan of the Corporation or its
parent or subsidiary corporations) first become exercisable during the same
calendar year, exceed One Hundred Thousand Dollars ($100,000) in the
aggregate. To the extent the exercisability of this option is deferred by
reason of the foregoing limitation, the deferred portion will first become
exercisable
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in the first calendar year or years thereafter in which the One Hundred
Thousand Dollar ($100,000) limitation of this Paragraph 18.B would not be
contravened.
C. Should this option be designated as exercisable in
installments in the Grant Notice, then no installment under this option
(whether annual or monthly) shall qualify for favorable tax treatment as an
incentive stock option under the Federal tax laws if (and to the extent) the
aggregate fair market value (determined at the Grant Date) of the
Corporation's Common Stock for which such installment first becomes
exercisable hereunder will, when added to the aggregate fair market value
(determined as of the respective date or dates of grant) of the Corporation's
Common Stock for which one or more other incentive stock options granted to
the Optionee prior to the Grant Date (whether under the Plan or any other
option plan of the Corporation or any parent or subsidiary corporation) first
become exercisable during the same calendar year, exceed One Hundred Thousand
Dollars ($100,000) in the aggregate.
20. WITHHOLDING. Optionee hereby agrees to make appropriate
arrangements with the Corporation or parent or subsidiary corporation
employing Optionee for the satisfaction of all Federal, State or local income
tax withholding requirements and Federal social security employee tax
requirements applicable to the exercise of this option.
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