EXHIBIT
10.33


 


*** CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT (INDICATED BY ASTERISKS) HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER 17 C.F.R. SECTIONS
200.80(B)(4), 200.83 AND 230.406.


 


THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF (COLLECTIVELY,
THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
UNDER THE ACT WITH RESPECT TO THE SECURITIES OR DELIVERY TO THE COMPANY OF AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT
OR UNLESS SOLD IN FULL COMPLIANCE WITH RULE 144 UNDER THE ACT.


AMENDED
AND RESTATED WARRANT TO PURCHASE COMMON STOCK


OF


DIGIRAD
CORPORATION




	
  MWC -       

  	
   

  	
  Date of Initial Issuance — November 13, 2002

  
	
   

  	
   

  	
  Date of Amendment and Restatement — April 28, 2004

  






 


Void after
November 13, 2007


Digirad Corporation, a Delaware corporation (the “Company”),
hereby certifies that, for value received ___________________ (including any
successors and assigns, the “Holder”), is entitled, subject to the
terms set forth below, to purchase from the Company at any time or from time to
time, before 5:00 PM, Pacific time on November 13, 2007 (the “Expiration
Date”) up to *** shares of Common Stock (“Common Stock”) of the
Company (the “Warrant Shares”), subject to adjustment as provided
herein.  The purchase price per share of
such Common Stock upon exercise of this Warrant shall be $ ***  (the “Exercise Price”), subject to adjustment as
provided herein.  This Warrant is issued
to the Holder in connection with and subject to the terms and conditions of
that certain Consulting Agreement dated on or about January 6, 2003, by and
between the Company and McAdams and Whitham Consulting, LLC (the “Consulting
Agreement”).


                1.             Exercise Period.  Subject to Section 2.2 herein, this Warrant
may be exercised by the Holder at any time or from time to time after the Date
of Initial Issuance noted above but before 5:00 PM, Pacific time on the
Expiration Date (the “Exercise Period”).


 


                2.             Exercise of Warrant; Number of
Warrant Shares; Termination.  


 


                                2.1           Exercise of Warrant; Partial
Exercise. This Warrant may be exercised in full or in part by the Holder
with respect to any or all of the Warrant Shares by surrender of this Warrant,
together with the form of subscription attached hereto as Schedule 1,
duly executed by the Holder, to the Company at its principal office,
accompanied by payment, in cash or by


 


***  Portions of this page have
been omitted pursuant to a request for Confidential Treatment and filed
separately with the commission.


 

















 


certified or official bank check payable to the order of the Company,
of the aggregate Exercise Price for the Warrant Shares to be purchased
hereunder.  For any partial exercise
hereof, the Holder shall designate in a notice of exercise or net issue
election notice that number of shares of Common Stock that he wishes to
purchase.  On any such partial exercise,
the Company at its expense shall forthwith issue and deliver to the Holder a
new warrant of like tenor, in the name of the Holder, which shall be
exercisable for such number of shares of Common Stock represented by this
Warrant which have not been purchased upon such exercise.  


 


                2.2           Termination of the Warrant Upon a
Corporate Transaction.  Immediately
following the occurrence of a Corporate Transaction, this Warrant shall
terminate and cease to be outstanding, provided that written notice has been
given to the Holder at least 20 days prior to the occurrence of the Corporate
Transaction.  For the purposes of this
Warrant, a “Corporate Transaction” shall mean: (i) a merger or
consolidation in which securities possessing more than fifty percent (50%) of
the total combined voting power of the Company’s outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such transaction; or (ii) the sale,
transfer or other disposition of all or substantially all of the Company’s
assets in complete liquidation or dissolution of the Company.


                3.             Net Issuance.


 


                3.1           Right to Convert.  The Holder shall have the right to convert
this Warrant or any portion thereof (the “Conversion Right”) into shares of Common
Stock as provided in this Section 3 at any time or from time to time during the
Exercise Period.  Upon exercise of the
Conversion Right with respect to a particular number of Warrant Shares (the “Converted
Warrant  Shares”), the Company shall deliver to the
Holder (without payment by the Holder of any exercise price or any cash or
other consideration) that number of shares of fully paid and nonassessable
shares of Common Stock computed using the following formula:


X = Y (A - B)

A


Where          X =    the
number of shares of Common Stock to be delivered to the Holder


                      Y =    the
number of Converted Warrant Shares


                      A =   the fair market value of one share of the Company’s Common Stock
on the Conversion Date (as defined below)


 


                      B =    the
Exercise Price (as adjusted through the Conversion Date)


The Conversion Right may only be exercised with respect
to a whole number of Warrant Shares.  No
fractional shares shall be issuable upon exercise of the Conversion Right, and
if the number of shares to be issued determined in accordance with the
foregoing formula is other than a whole number, the Company shall pay to the
Holder an amount in cash equal to the fair market value of the resulting
fractional share on the Conversion Date (as defined below).  Shares issued pursuant to the Conversion
Right shall be treated as if they were issued upon the exercise of this
Warrant. 


2

















 


                3.2           Method of Exercise.  The Conversion Right may be exercised by the
Holder by the surrender of this Warrant at the principal office of the Company
together with a written statement specifying that the Holder thereby intends to
exercise the Conversion Right and indicating the total number of shares under
this Warrant that the Holder is exercising through the Conversion Right.  Such conversion shall be effective upon
receipt by the Company of this Warrant together with the aforesaid written
statement, or on such later date as is specified therein (the “Conversion
Date”) and at such time the person in whose name any certificate for
shares of Common Stock shall be issuable upon such exercise shall be deemed to
be the record holder of such Common Stock for all purposes.  Certificates for the shares issuable upon
exercise of the Conversion Right and, if applicable, a new warrant evidencing
the balance of the shares remaining subject to the Warrant, shall be issued as
of the Conversion Date and shall be delivered to the Holder promptly following
the Conversion Date.


                3.3           Determination of Fair Market
Value.  For purposes of this Section
3, fair market value of a share of Common Stock on the Conversion Date shall
mean:


(1)           If traded
on a stock exchange, the fair market value of the Common Stock shall be deemed
to be the average of the closing selling prices of the Common Stock on the
stock exchange determined by the Board of Directors of the Company (the “Board”)
to be the primary market for the Common Stock over the ten (10) trading day
period (or such shorter period immediately following the closing of the
Company’s initial public offering) ending on the date prior to the Conversion
Date, as such prices are officially quoted in the composite tape of
transactions on such exchange;


(2)           If traded
over-the-counter, the fair market value of the Common Stock shall be deemed to
be the average of the closing bid prices (or, if such information is available,
the closing selling prices) of the Common Stock over the ten (10) trading day
period (or such shorter period immediately following the closing of the
Company’s initial public offering) ending on the date prior to the Conversion
Date, as such prices are reported by the National Association of Securities
Dealers through its NASDAQ system or any successor system; and


(3)           If there
is no public market for the Common Stock, the fair market value of the Common
Stock shall be determined in good faith by the Board.


4.             When
Exercise Effective.  The exercise of
this Warrant pursuant to Section 2 shall be deemed to have been effected
immediately prior to the close of business on the business day on which this
Warrant is surrendered to the Company as provided in Section 2.1, or on
such later date as is specified in the form of subscription, and at such time
the person in whose name any certificate for shares of Common Stock shall be
issuable upon such exercise, as provided in Section 5, shall be deemed to
be the record holder of such Common Stock for all purposes.


                5.             Delivery on Exercise.  As soon as practicable after the exercise of
this Warrant in full or in part pursuant to Section 2, the Company at its
expense (including the payment by it of any applicable issue taxes) will cause
to be issued in the name of and delivered to the Holder, or as the Holder may
direct, a certificate or certificates for the number of fully paid and
nonassessable full shares of Common Stock to which the Holder shall be entitled
on such


 


3

















 


exercise, together with cash, in lieu of any fraction of a share, equal
to such fraction of the current market value of one full share of Common Stock
as determined pursuant to Section 3.3.


 


6.             Adjustments. The number and kind of shares of Common
Stock (or any shares of stock or other securities which may be) issuable upon
the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time upon the happening of certain events, as follows:


                6.1           Dividends, Distributions, Stock
Splits or Combinations.  If the
Company shall at any time or from time to time after the date hereof (a) make
or issue, or fix a record date for the determination of holders of Common Stock
(or any shares of stock or other securities which may be issuable upon the
exercise of this Warrant) entitled to receive, a dividend or other distribution
payable in additional shares of common or preferred stock (as the case may be),
(b) subdivide its outstanding shares of Common Stock (or any shares of stock or
other securities which may be issuable upon the exercise of this Warrant) into
a larger number of shares of Common Stock (or any shares of stock or other
securities which may be issuable upon the exercise of this Warrant) or (c)
combine its outstanding shares of Common Stock (or any shares of stock or other
securities which may be issuable upon the exercise of this Warrant) into a
smaller number of shares of Common Stock (or any shares of stock or other
securities which may be issuable upon the exercise of this Warrant), then and
in each such event the Exercise Price then in effect and the number of shares
issuable upon exercise of this Warrant shall be appropriately adjusted.


                6.2           Reclassification or Reorganization.  If the Common Stock (or any shares of stock
or other securities which may be) issuable upon the exercise of this Warrant
shall be changed into the same or different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for in Section 6.1 above, or pursuant to a Corporate Transaction),
then and in each such event the Holder shall be entitled to receive upon the
exercise of this Warrant the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification
or other change to which a holder of the number of shares of Common Stock (or
any shares of stock or other securities which may be) issuable upon the
exercise of this Warrant would have received if this Warrant had been exercised
immediately prior to such reorganization, reclassification or other change, all
subject to further adjustment as provided herein.


                6.3           Notice of Adjustments and Record
Dates.  The Company shall promptly
notify the Holder in writing of each adjustment or readjustment of the Exercise
Price and the number of shares of Common Stock (or any shares of stock or other
securities which may be) issuable upon the exercise of this Warrant.  Such notice shall state the adjustment or
readjustment and show in reasonable detail the facts on which that adjustment
or readjustment is based.  In the event
of any taking by the Company of a record of the holders of Common Stock (or any
shares of stock or other securities which may be issuable upon the exercise of
this Warrant) for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, the Company shall notify
Holder in writing of such record date at least twenty (20) days prior to the
date specified therein.


4

















 


                6.4           When Adjustments To Be Made.  No adjustment in the Exercise Price shall be
required by this Section 6 if such adjustment either by itself or with other
adjustments not previously made would require an increase or decrease of less
than one percent (1%) in such price. 
Any adjustment representing a change of less than such minimum amount
which is postponed shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this Section 6 and not
previously made, would result in a minimum adjustment.  Notwithstanding the foregoing, any
adjustment carried forward shall be made no later than ten (10) business days
prior to the Expiration Date.  All
calculations under this Section 6.4 shall be made to the nearest cent.  For the purpose of any adjustment, any
specified event shall be deemed to have occurred at the close of business on
the date of its occurrence.


                6.5           Certain Other Events.  If any change in the outstanding Common
Stock (or any shares of stock or other securities which may be issuable upon
the exercise of this Warrant) or any other event occurs as to which the other
provisions of this Section 6 are not strictly applicable or if strictly
applicable would not fairly protect the purchase rights of the Holder of the
Warrant in accordance with such provisions, then the Board shall make an
adjustment in the number and class of shares available under this Warrant, the
Exercise Price or the application of such provisions, so as to protect such
purchase rights as aforesaid.  The
adjustment shall be such as will give the Holder, upon exercise of this
Warrant, the same aggregate Exercise Price and the same total number, class and
kind of shares as the Holder would have owned had this Warrant been exercised
prior to the event and had the Holder continued to hold such shares until after
the event requiring adjustment.


7.             Replacement
of Warrants.  On receipt by the
Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction of this Warrant, on delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company or, in the case of
any such mutilation, on surrender and cancellation of such Warrant, the Company
at its expense will execute and deliver to the Holder, in lieu thereof, a new warrant
of like tenor.


8.             No
Rights or Liability as a Stockholder. 
This Warrant does not entitle the Holder hereof to any voting rights or
other rights as a stockholder of the Company. 
No provisions hereof, in the absence of affirmative action by the Holder
to purchase Common Stock, and no enumeration herein of the rights or privileges
of the Holder, shall give rise to any liability of the Holder as a stockholder
of the Company.


            9.             Representations
of Holder.


 


The Holder hereby represents, covenants and acknowledges
to the Company that:


(1)           this
Warrant and the Warrant Shares are “restricted securities” as such term is used
in the rules and regulations under the Securities Act of 1933, as amended (the “Act”)
and that this Warrant and the Warrant Shares have not been registered under the
Act and the Company has no present intention of registering the Securities
under the Act or any state securities law, and that this Warrant and the
Warrant Shares must be held indefinitely unless a transfer can be made pursuant
to appropriate exemptions;


5

















 


(2)           the Holder
has read, and fully understands, the terms of this Warrant set forth on its
face and the attachments hereto, including the restrictions on transfer
contained herein;


(3)           the Holder
is purchasing for investment for his own account and not with a view to or for
sale in connection with any distribution of this Warrant or the Warrant Shares
and he has no intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state securities
laws;


(4)           the Holder
is an “accredited investor” within the meaning of paragraph (a) of Rule 501 of
Regulation D promulgated by the Securities and Exchange Commission (the “Commission”);
and


(5)           the Holder
(i) has received all information the Holder has requested from the Company and
considers necessary or appropriate for deciding whether to acquire this Warrant
and the Warrant Shares, (ii) has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of this
Warrant and the Warrant Shares and to obtain any additional information
necessary to verify the accuracy of the information given to the Holder, and
(iii) has such knowledge and experience in financial and business matters such
that the Holder is capable of evaluating the merits and risks of the investment
in this Warrant and the Warrant Shares.


10.           Market
Stand-Off Agreement.  The Holder
hereby agrees that, during the period of duration specified by the Company and
an underwriter of Common Stock or other securities of the Company, following
the effective date of a registration statement of the Company filed under the
Act, he shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any securities of the Company held by him at any time during such period except
Common Stock included in such registration; provided, however, that:


(1)           Such
agreement shall not exceed 180 days for the first such registration statement
of the Company which covers Common Stock (or other securities) to be sold on
its behalf to the public in an underwritten offering;


(2)           Such
agreement shall not exceed ninety (90) days for any subsequent registration
statement of the Company which covers Common Stock (or other securities) to be
sold on its behalf to the public in an underwritten offering; and


(3)           All
directors and officers of the Company as well as all holders of one percent
(1%) or more of the Company’s outstanding capital stock are similarly bound.


In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to securities held
by the Holder (and the shares or securities of every other person subject to
the foregoing restriction) until the end of such period.


6

















 


11.           Miscellaneous.


                11.1         Transfer of Warrant.  This Warrant shall not be transferable or
assignable by the Holder without the express written consent of the Company.


                11.2         Notices.  Any notice required or permitted under this
Warrant shall be in writing and shall be hand delivered, sent by facsimile or
other electronic medium, by registered or certified mail, postage prepaid, or
by nationally recognized overnight carrier to the Company or to the Holder at
the address set forth below on the signature page to this Warrant or to such
other address as may be furnished in writing to the other party hereto.  Such notice shall be deemed effectively
given (i) if hand delivered, upon delivery, (ii) if sent by facsimile or other
electronic medium, when confirmed, if sent during the normal business hours of
the recipient (if not sent during the normal business hours of the recipient,
then on the next business day), (iii) if sent by mail, five days after having
been sent, or (iv) if sent by nationally recognized overnight courier, one day
after deposit with such courier.


                11.3         Attorneys’ Fees.  If any action at law or in equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to reasonable attorneys’ fees, costs and disbursements
in addition to any other relief to which such party may be entitled.


                11.4         Amendments and Waivers.  Any term of this Warrant may be amended and
the observance of any other term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holder.


                11.5         Severability.  If one or more provisions of this Warrant
are held to be unenforceable under applicable law, such provision shall be
excluded from this Warrant and the balance of the Warrant shall be interpreted
as if such provision were so excluded and shall be enforceable in accordance
with its terms.


                11.6         Governing Law.  This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of California
as applied to agreements among California residents entered into and to be
performed entirely within California.


 


[REMAINDER OF THIS
PAGE INTENTIONALLY LEFT BLANK]


 


 


7

















 


                IN
WITNESS WHEREOF, the undersigned have caused this Warrant to be executed by its
officers thereunto duly authorized.


COMPANY:                                                                          DIGIRAD
CORPORATION


 


By:                                                                                                    

David M. Sheehan

President and Chief Executive Officer


 


HOLDER:                                                                                                                                                                               




 


 


[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED 

WARRANT TO PURCHASE COMMON STOCK OF DIGIRAD CORPORATION]


 

















 


SCHEDULE 1


FORM OF SUBSCRIPTION


(To be
signed only on exercise of Warrant)


To:          Digirad Corporation


The undersigned,
the holder of the Warrant attached hereto, hereby irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _______* shares of common stock of Digirad Corporation, and
herewith makes payment of $__________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to
____________________, whose address is _____________________________.


	
   

  	
   

  
	
   

  	
  (Signature must
  conform in all respects to name of the Holder as specified on the face of the
  Warrant)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Name)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Address)

  



 


Dated:                                                    


________________


* Insert here the number of shares as to which the
Warrant is being exercised.


[SCHEDULE 1]


 

















 


SCHEDULE OF INVESTORS


 


 


WARRANTHOLDER


Stephen A. McAdams


John C. Whitham


 


 


 


 


 


[SCHEDULE OF INVESTORS]