ex10_1.htm


    
      
        

      

    

    POSITRON
CORPORATION

    


    2008
STOCK INCENTIVE PLAN

    


    
      	
              1. 

            	
              Purpose

            


    

     

    The
purpose of this 2008 Stock Incentive Plan (the “Plan”) of Positron Corporation,
a Texas corporation (the “Company”), is to advance the interests of the
Company’s stockholders by enhancing the Company’s ability to attract, retain and
motivate persons who are expected to make important contributions to the Company
and by providing such persons with equity ownership opportunities and
performance-based incentives that are intended to better align their interests
with those of the Company’s stockholders.  Except where the context
otherwise requires, the term “Company” shall include any of the Company’s
present or future parent or subsidiary corporations as defined in Sections
424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the “Code”) and any other business venture
(including, without limitation, joint venture or limited liability company) in
which the Company has a controlling interest, as determined by the Board of
Directors of the Company (the “Board”).

    


    
      	
              2. 

            	
              Eligibility

            


    

    


    All of
the Company’s employees, officers and directors (including persons who have
entered into an agreement with the Company under which they will be employed by
the Company in the future), as well as all of the Company’s consultants and
advisors that are natural persons, are eligible to be granted options,
unrestricted stock awards and restricted stock awards (each, an “Award”) under
the Plan.  Each person who has been granted an Award under the Plan shall
be deemed a “Participant”.

    


    
      	
              3. 

            	
              Administration
      and Delegation

            


    

    


    (a)           Administration
by Board of Directors.  The Plan will be administered by the
Board.  The Board shall have authority to grant Awards and to adopt,
amend and repeal such administrative rules, guidelines and practices relating to
the Plan as it shall deem advisable.  The Board may correct any
defect, supply any omission or reconcile any inconsistency in the Plan or any
Award in the manner and to the extent it shall deem expedient to carry the Plan
into effect and it shall be the sole and final judge of such
expediency.  All decisions by the Board shall be made in the Board’s
sole discretion and shall be final and binding on all persons having or claiming
any interest in the Plan or in any Award.  No director or person
acting pursuant to the authority delegated by the Board shall be liable for any
action or determination relating to or under the Plan made in good
faith.

    


    (b)           Appointment
of Committees.  To the extent permitted by applicable law, the Board
may delegate any or all of its powers under the Plan to one or more committees
or subcommittees of the Board (a “Committee”).  All references in the
Plan to the “Board” shall mean the Board or a Committee of the Board or the
officers referred to in Section 3(c) to the extent that the Board’s powers or
authority under the Plan have been delegated to such Committee or
officers.

    


    (c)           Delegation
to Officers.  To the extent permitted by applicable law, the Board may
delegate to one or more officers of the Company the power to grant Awards to
employees of the Company and to exercise such other powers under the Plan as the
Board may determine, provided that the Board shall fix the terms of the Awards
to be granted by such officers (including the exercise price of such Awards,
which may include a formula by which the exercise price will be determined) and
the maximum number of shares subject to Awards that the officers may grant;
provided further, however, that no officer shall be authorized to grant Awards
to any “executive officer” of the Company (as defined by Rule 3b-7 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or to any
“officer” of the Company (as defined by Rule 16a-1 under the Exchange
Act).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	
              4. 

            	
              Stock
      Available for Awards

            


    

    


    Number of
Shares. Subject to adjustment under Section 9, Awards may be made under the Plan
for up to 6,000,000 shares of common stock, $0.01 par value per share, of the
Company (the “Common Stock”).  If any Award expires or is terminated,
surrendered or canceled without having been fully exercised or is forfeited in
whole or in part (including as the result of shares of Common Stock subject to
such Award being repurchased by the Company at the original issuance price
pursuant to a contractual repurchase right) or results in any Common Stock not
being issued, the unused Common Stock covered by such Award shall again be
available for the grant of Awards under the Plan in proportion to the number of
shares by which the total shares authorized for issuance was originally reduced
at the time of grant or issuance pursuant to Section 4(c) of the Plan,
subject, however, in the case of Incentive Stock Options (as hereinafter
defined), to any limitations under the Code. Shares issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.

    


    
      	
              5. 

            	
              Stock
      Options

            


    

    


    (a)           General.  The
Board may grant options to purchase Common Stock (each, an “Option”) and
determine the number of shares of Common Stock to be covered by each Option, the
exercise price of each Option and the conditions and limitations applicable to
the exercise of each Option, including conditions relating to applicable federal
or state securities laws, as it considers necessary or advisable.  An
Option which is not intended to be an Incentive Stock Option (as hereinafter
defined) shall be designated a “Nonstatutory Stock Option”.

    


    (b)           Incentive
Stock Options.  An Option that the Board intends to be an “incentive
stock option” as defined in Section 422 of the Code (an “Incentive Stock
Option”) shall only be granted to employees of Positron Corporation, any of
Positron Corporation’s present or future parent or subsidiary corporations as
defined in Sections 424(e) or (f) of the Code, and any other entities the
employees of which are eligible to receive Incentive Stock Options under the
Code, and shall be subject to and shall be construed consistently with the
requirements of Section 422 of the Code.  The Company shall have no
liability to a Participant, or any other party, if an Option (or any part
thereof) that is intended to be an Incentive Stock Option is not an Incentive
Stock Option.

    


    (c)           Exercise
Price.  The Board shall establish the exercise price at the time each
Option is granted and specify it in the applicable option agreement; provided,
however, that the exercise price shall be not less than 100% of the fair market
value as determined by (or in a manner approved by) the Board at the time the
Option is granted.

    


    (d)           Duration
of Options.  Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the applicable
option agreement; provided, however, that no Option will be granted for a term
in excess of 10 years.

    


    (e)           Exercise
of Option.  Options may be exercised by delivery to the Company of a
written notice of exercise signed by the proper person or by any other form of
notice (including electronic notice) approved by the Board together with payment
in full as specified in Section 5(f) for the number of shares for which the
Option is exercised.

    


    (f)         
  Payment Upon Exercise.  Common Stock purchased upon the
exercise of an Option granted under the Plan shall be paid for as
follows:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (1)           in
cash or by check, payable to the order of the Company;

    


    (2)           except
as the Board may otherwise provide in an option agreement, by (i) delivery of an
irrevocable and unconditional undertaking by a creditworthy broker to deliver
promptly to the Company sufficient funds to pay the exercise price and any
required tax withholding or (ii) delivery by the Participant to the Company of a
copy of irrevocable and unconditional instructions to a creditworthy broker to
promptly pay to the Company the exercise price and any required tax
withholding;

    


    (3)           when
the Common Stock is registered under the Exchange Act, by delivery of shares of
Common Stock owned by the Participant valued at their fair market value as
determined by (or in a manner approved by) the Board, provided (i) such method
of payment is then permitted under applicable law, (ii) such Common Stock, if
acquired directly from the Company, was owned by the Participant at least six
months prior to such delivery and (iii) such Common Stock is not subject to any
repurchase, forfeiture, unfulfilled vesting or other similar requirements;
or

    


    (4)           any
combination of the above permitted forms of payment.

    


    (g)           Substitute
Options.  In connection with a merger or consolidation of an entity
with the Company or the acquisition by the Company of property or stock of an
entity, the Board may grant Options in substitution for any options or other
stock or stock-based awards granted by such entity or an affiliate thereof prior
to such merger, consolidation or acquisition.  Substitute Options may
be granted on such terms as the Board deems appropriate in the circumstances,
notwithstanding any limitations on Options contained in the other sections of
this Section 5 or in Section 2.

    


    
      	
              6. 

            	
              Unrestricted
      Stock.

            


    

     

    A
Participant may be awarded (or sold at a discount) shares of Common Stock which
are not subject to restrictions, in consideration for past services rendered
thereby to the Company or an Affiliate or for other valid
consideration.

    


    
      	
              7. 

            	
              Restricted
      Stock.

            


    

    


    (a)           Grants.
The Board may grant Awards entitling recipients to acquire shares of Common
Stock, subject to the right of the Company to repurchase all or part of such
shares at their issue price or other stated or formula price (or to require
forfeiture of such shares if issued at no cost) from the recipient in the event
that conditions specified by the Board in the applicable Award are not satisfied
prior to the end of the applicable restriction period or periods established by
the Board for such Award (each, a “Restricted Stock Award”).

    


    (b)           Terms
and Conditions.  The Board shall determine the terms and conditions of
a Restricted Stock Award, including the conditions for repurchase (or
forfeiture) and the issue price, if any.

    


    (c)           Limitation
on Vesting.   Restricted Stock Awards shall not vest earlier than
the first anniversary of the date of grant.  Notwithstanding any other
provision of this Plan, the Board may, in its discretion, either at the time a
Restricted Stock Award is made or at any time thereafter, waive its right to
repurchase shares of Common Stock (or waive the forfeiture thereof) or remove or
modify any part or all of the restrictions applicable to the Restricted Stock
Award, provided that the Board may only exercise such rights in extraordinary
circumstances which shall include, without limitation, death or disability of
the Participant; a merger, consolidation, sale, reorganization,
recapitalization, or change in control of the Company; or any other nonrecurring
significant event affecting the Company, a Participant or the Plan.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (d)           Stock
Certificates.  Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and,
unless otherwise determined by the Board, deposited by the Participant, together
with a stock power endorsed in blank, with the Company (or its
designee).  At the expiration of the applicable restriction periods,
the Company (or such designee) shall deliver the certificates no longer subject
to such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant’s death (the “Designated Beneficiary”).  In the absence of an
effective designation by a Participant, “Designated Beneficiary” shall mean the
Participant’s estate.

    


    
      	
              8. 

            	
              Other
      Stock-Based Awards.

            


    

    


    Other
Awards of shares of Common Stock, and other Awards that are valued in whole or
in part by reference to, or are otherwise based on, shares of Common Stock or
other property, may be granted hereunder to Participants (“Other Stock Unit
Awards”), including without limitation Awards entitling recipients to receive
shares of Common Stock to be delivered in the future.  Such Other
Stock Unit Awards shall also be available as a form of payment in the settlement
of other Awards granted under the Plan or as payment in lieu of compensation to
which a Participant is otherwise entitled.  Other Stock Unit Awards
may be paid in shares of Common Stock or cash, as the Board shall
determine.  Subject to the provisions of the Plan, the Board shall
determine the conditions of each Other Stock Unit Awards, including any purchase
price applicable thereto.  At the time any Award is granted, the Board
may provide that, at the time Common Stock would otherwise be delivered pursuant
to the Award, the Participant will instead receive an instrument evidencing the
Participant’s right to future delivery of the Common Stock.

    


    
      	
              9. 

            	
              Adjustments
      for Changes in Common Stock and Certain Other
  Events.

            


    

    


    Changes
in Capitalization. In the event of any stock split, reverse stock split, stock
dividend, recapitalization, combination of shares, reclassification of shares,
spin-off or other similar change in capitalization or event, or any distribution
to holders of Common Stock other than an ordinary cash dividend, (i) the number
and class of securities available under this Plan, (ii) the number and class of
securities and exercise price per share subject to each outstanding Option and
(iii) the repurchase price per share subject to each outstanding Restricted
Stock Award.

    


    


    
      	
              10. 

            	
              General
      Provisions Applicable to Awards

            


    

    


    (a)           Transferability
of Awards.  Except as the Board may otherwise determine or provide in
an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise
encumbered by the person to whom they are granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution or,
other than in the case of an Option intended to be an Incentive Stock Option,
pursuant to a qualified domestic relations order, and, during the life of the
Participant, shall be exercisable only by the Participant.  References
to a Participant, to the extent relevant in the context, shall include
references to authorized transferees.  Notwithstanding the foregoing,
a Participant may transfer any Award by means of a gift to a family member (as
such term is defined in General Instruction A to Form S-8, as may be amended
from time to time) of such Participant, provided that prior written notice of
such gift is provided to the Company.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (b)           Documentation.  Each
Award shall be evidenced in such form (written, electronic or otherwise) as the
Board shall determine.  Each Award may contain terms and conditions in
addition to those set forth in the Plan.

    


    (c)           Board
Discretion.  Except as otherwise provided by the Plan, each Award may
be made alone or in addition or in relation to any other Award.  The terms
of each Award need not be identical, and the Board need not treat Participants
uniformly.

    


    (d)           Termination
of Status.  The Board shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other change in
the employment or other status of a Participant and the extent to which, and the
period during which, the Participant, or the Participant’s legal representative,
conservator, guardian or Designated Beneficiary, may exercise rights under the
Award.

    


    (e)           Conditions
on Delivery of Stock.  The Company will not be obligated to deliver
any shares of Common Stock pursuant to the Plan or to remove restrictions from
shares previously delivered under the Plan until (i) all conditions of the Award
have been met or removed to the satisfaction of the Company, (ii) in the opinion
of the Company’s counsel, all other legal matters in connection with the
issuance and delivery of such shares have been satisfied, including any
applicable securities laws and any applicable stock exchange or stock market
rules and regulations, and (iii) the Participant has executed and delivered
to the Company such representations or agreements as the Company may consider
appropriate to satisfy the requirements of any applicable laws, rules or
regulations.

    


    (f)          
 Deferrals.  The Board may permit Participants to defer receipt
of any Common Stock issuable upon exercise of an Option or upon the lapse of any
restriction applicable to any Restricted Stock Award, subject to such
rules and procedures as it may establish.

    


    
      	
              11. 

            	
              Miscellaneous

            


    

    


    (a)           No
Right To Employment or Other Status.  No person shall have any claim
or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company.  The Company expressly reserves the
right at any time to dismiss or otherwise terminate its relationship with a
Participant free from any liability or claim under the Plan, except as expressly
provided in the applicable Award.

    


    (b)           No
Rights As Stockholder.  Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed with
respect to an Award until becoming the record holder of such
shares.  Notwithstanding the foregoing, in the event the Company
effects a split of the Common Stock by means of a stock dividend and the
exercise price of and the number of shares subject to such Option are adjusted
as of the date of the distribution of the dividend (rather than as of the record
date for such dividend), then an optionee who exercises an Option between the
record date and the distribution date for such stock dividend shall be entitled
to receive, on the distribution date, the stock dividend with respect to the
shares of Common Stock acquired upon such Option exercise, notwithstanding the
fact that such shares were not outstanding as of the close of business on the
record date for such stock dividend.

    


    (c)           Effective
Date and Term of Plan.  The Plan shall become effective on the date on
which it is adopted by the Board, but no Award may be granted unless and until
the Plan has been approved by the Company’s stockholders.  No Awards
shall be granted under the Plan after the date 10 years from the date on which
the Plan was adopted by the Board, provided that Awards granted prior to that
date may extend beyond such date.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (d)           Amendment
of Plan.  The Board may amend, suspend or terminate the Plan or any
portion thereof at any time; provided that, to the extent determined by the
Board, no amendment requiring stockholder approval under any applicable legal,
regulatory or listing requirement shall become effective until such stockholder
approval is obtained.  No Award shall be made that is conditioned upon
stockholder approval of any amendment to the Plan.

    


    (f)           Governing
Law.  The provisions of the Plan and all Awards made hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Texas, without regard to any applicable conflicts of law.