STOCK OPTION AGREEMENT (2007 Non-Statutory Stock Option Plan)
EXHIBIT
10.83
(2007
Non-Statutory Stock Option Plan)
Imaging Diagnostic Systems,
Inc. (the “Company”), desiring to afford an opportunity to the Grantee
named below to purchase certain shares of common stock of the Company, to
provide the Grantee with an added incentive as an employee, director or
consultant of the Company, hereby grants to Grantee, and the Grantee hereby
accepts, an option to purchase the number of such shares optioned as specified
below, during the term ending at midnight (prevailing local time at the
Company’s principal office) on the expiration date of this Option specified
below, at the option exercise price specified below, subject to and upon the
following terms and conditions:
1. Identifying
Provisions: As used in this
Option, the following terms shall have the following respective
meanings.
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(a)
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Grantee:
XXXXX X.
XXXXXX
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(b)
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Date
of Grant: April 16, 2008
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(c)
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Number
of shares
optioned: 1,000,000
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(d)
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Option
exercise price per
share: $.045
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(e)
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Expiration
Date: April 16, 2018
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(f)
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Plan: The
Company’s 2007 Non-Statutory Stock Option Plan;
and
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(g)
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Committee: The
stock option committee of the Company’s Board of Directors, or if none,
the Board of Directors.
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This
Option is not intended to be an incentive stock option pursuant to Section 422
of the Internal Revenue Code.
2. Vesting: This
Option shall vest and become exercisable on the following date(s) in the
following amounts:
Vesting
Date Number of
Shares
First
year April
16,
2009 1,000,000
3.
Restrictions
on Exercise: The following
additional provisions shall apply to the exercise of this Option:
(a) Termination of
Employment. If the Grantee’s employment by the Company or any of its
subsidiaries is terminated without cause for any reason, other than death only
that portion of this Option exercisable at the time of such termination of
employment may thereafter be exercised, and it may not be exercised more than
one year after such
termination
nor after the Expiration Date of this Option, whichever date is sooner. In all
other respects, this Option shall terminate upon such termination of
employment.
(b) Death of
Grantee. If the Grantee shall die during the term of this Option, the
Grantee’s legal representative or representatives, or the person or persons
entitled to do so under the Grantee’s last will and testament or under
applicable intestate laws, shall have the right to exercise this Option, but
only for the number of shares as to which the Grantee was entitled to exercise
this Option in accordance with Section 2 hereof on the date of her death, and
such right shall expire and this Option shall terminate 15 months after the date
of the Grantee’s death or on the Expiration Date of this Option, whichever date
is sooner. In all other respects, this Option shall terminate upon such
death.
(c) Continuity of
Employment. This Option shall not be exercisable by the Grantee in
any part unless at all times beginning with the date of grant and ending no more
than three months prior to the date of exercise, the Grantee has, except for
military service leave, sick leave or other bona fide leave of absence (such as
temporary employment by the United States Government) been in the continuous
service of the Company, except that such period of three months shall be one (1)
year following any termination of the Grantee’s employment by reason of her
permanent and total disability.
(d)
Should (i) the Grantee’s Service be terminated for misconduct (including, but
not limited to, any act of dishonesty, willful misconduct, fraud or
embezzlement) or (ii) the Grantee make any unauthorized use or disclosure of
confidential information or trade secrets of the Company or its Parent or
Subsidiary, then in any such event all outstanding Options held by the Grantee
under this Plan shall terminate immediately and cease to be
exercisable.
4. Non-Transferable. The Grantee may
not transfer this Option except by will or the laws of descent and distribution.
This Option shall not be otherwise transferred, assigned, pledged, hypothecated
or disposed of in any way, whether by operation of law or otherwise, and shall
be exercisable during the Grantee’s lifetime only by the Grantee or her guardian
or legal representative.
5. Adjustments
and Corporate Reorganization. Subject to any required action
by the shareholders of the Company, the number of Shares covered by each
outstanding Option, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of any
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been “effected
without receipt of consideration.” Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of Shares subject to an
Option.
In the
event of the proposed dissolution or liquidation of the Company, the Option will
terminate immediately prior to the consummation of such proposed action, unless
otherwise provided by the Committee. The Committee may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Committee and
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give each
Grantee the right to exercise her Option as to all or any part of the Option,
including Shares as to which the Option would not otherwise be
exercisable. In the event of the proposed sale of all or
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation in a transaction in which the Company is not
the survivor, the Option shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Committee determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, that the Grantee
shall have the right to exercise the Option as to all of the optioned stock,
including shares as to which the Option would not otherwise be
exercisable. If the Committee makes an Option fully exercisable in
lieu of assumption or substitution in the event of such a merger or sale of
assets, the Committee shall notify the Grantee that the Option shall be fully
exercisable for a period of 30 days from the date of such notice, and the Option
will terminate upon the expiration of such period.
6. Exercise,
Payment For and Delivery of Stock: This Option may be
exercised by the Grantee or other person then entitled to exercise it by giving
four business days’ written notice of exercise to the Company specifying the
number of shares to be purchased and the total purchase price. The exercise
price shall become immediately due upon exercise of the Option and, subject to
the instrument evidencing the grant, shall be payable in one of the following
alternative forms specified below:
(a) full
payment in cash or check drawn to the Company’s order;
(b) full
payment in shares of Common Stock held for at least six (6) months and valued at
fair market value on the Exercise Date (as such term is defined
below);
(c) full
payment through a combination of shares of Common Stock held for at least six
(6) months and valued at fair market value on the Exercise Date and cash or
check; or
(d) full
payment through a broker-dealer sale and remittance procedure provided that sale
of the optioned stock is permitted as a result of an effective registration
statement under the Securities Act of 1933, as amended, and compliance with all
applicable securities laws, pursuant to which the Grantee (i) shall provide
irrevocable written instructions to a Company-designated brokerage firm to
effect the immediate sale of the purchased shares and remit to the Company, out
of the sale proceeds available on the settlement date, sufficient funds to cover
the aggregate option price payable for the purchased shares plus all applicable
Federal and State income taxes required to be withheld by the Company in
connection with such purchase and (ii) shall provide written directives to the
Company to deliver the certificates for the purchased shares directly to such
brokerage firm in order to complete the sale transaction.
For
purposes of this section 6, the Exercise Date shall be the date on which written
notice of the option exercise is delivered to the Company. Except to
the extent the sale and remittance procedure is utilized in connection with the
exercise of the Option, payment of the exercise price for the purchased shares
must accompany such notice.
The fair
market value per share of Common Stock on any relevant date shall be determined
in accordance with the following provisions:
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(i) If
the Common Stock is not at the time listed or admitted to trading on any
national stock exchange but is traded on the NASDAQ National Market, the fair
market value shall be the closing selling price per share of Common Stock on the
date in question, as such price is reported by the National Association of
Securities Dealers on the NASDAQ National Market or any successor
system. If there is no reported 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 national
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 Committee 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 is quoted on the NASDAQ Capital Market, or any similar system
of automated dissemination of quotations of securities process in common use,
the fair market value shall be the mean between the closing bid and asked
quotations for the Common Stock on such date.
(iv) If
neither clause (i), (ii) or (iii) is applicable, then the fair market value
shall be the mean between the closing bid and asked quotations for the Common
Stock as reported by the National Quotation Bureau, Inc., if at least two
securities dealers have inserted both bid and asked quotations for Common Stock
on at least five of the ten preceding business days.
7. Rights in
Shares Before Issuance and Delivery. No person shall be
entitled to the privileges of stock ownership in respect of any shares issuable
upon exercise of this Option, unless and until such shares have been issued to
such person as fully paid shares.
8. Requirements
of Law and of Stock Exchanges. By accepting this
Option, the Grantee represents and agrees for himself and her transferees by
will or the laws of descent and distribution that, unless a registration
statement under the Securities Act of 1933 is in effect as to shares purchased
upon any exercise of this Option, (i) any and all shares so purchased shall be
acquired for her personal account and not with a view to or for sale in
connection with any distribution, and (ii) each notice of the exercise of any
portion of this Option shall be accompanied by a representation and warranty in
writing, signed by the person entitled to exercise the same, that the shares are
being so acquired in good faith for her personal account and not with view to or
for sale in connection with any distribution.
No certificate or certificates for
shares of stock purchased upon exercise of this Option shall be issued and
delivered unless and until, in the opinion of counsel for the Company, such
securities may be issued and delivered without causing the Company to be in
violation of or incur liability under any federal, state or other securities
law, any requirement of any securities exchange listing agreement to which the
Company may be a party, or any other requirement of law or of any regulatory
body having jurisdiction over the Company.
9. Stock
Option Plan. This Option is subject to, and the Company and
the Grantee agree to be bound by, all of the terms and conditions of the Plan,
as the same shall have been amended from time to time in accordance with the
terms thereof, provided that no such amendment shall deprive the Grantee,
without her consent, of this Option or any of her
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rights
hereunder. Pursuant to the Plan, the Committee is vested with final authority to
interpret and construe the Plan and this Option, and is authorized to adopt
rules and regulations for carrying out the Plan. A copy of the Plan in its
present form is available for inspection during business hours by the Grantee or
other persons entitled to exercise this Option at the Company’s principal
office. The Plan, as amended from time to time, is hereby
incorporated by reference.
10. Notices. Any
notice to be given to the Company shall be addressed to the Company in care of
its Secretary at its principal office, and any notice to be given to the Grantee
shall be addressed to him at the address given beneath her signature hereto or
at such other address as the Grantee may hereafter designate in writing to the
Company. Any such notice shall be deemed duly given when actually delivered by
hand, facsimile, certified or registered mail or recognized overnight
courier.
11. Laws
Applicable to Construction. This Agreement has been executed and
delivered by the Company in the State of Florida, and this Agreement shall be
construed and enforced in accordance with the laws of said State.
IN WITNESS WHEREOF, the
Company has granted this Option on April 16, 2008.
Imaging Diagnostic Systems, Inc.
ACCEPTED:
By:
/s/ Xxxxx X.
Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
XXXXX X.
XXXXXXXX XXXXX
X. XXXXXX
Executive Vice President
&
Chief Financial Officer
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