EXHIBIT 10.28


 


THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF 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 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.


 


WARRANT TO PURCHASE COMMON STOCK


 


OF


 


DIGIRAD CORPORATION


 


Date of Issuance -
                


 


Void after
                


 


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, subject to
Section 2.3 herein, before 5:00 PM Pacific time on
                                   
(the “EXPIRATION DATE”) up to
                        
(                 )
fully paid and nonassessable shares of Common Stock of the Company, subject to
adjustment as provided herein (the “WARRANT SHARES”)  The purchase price per share of such Common Stock upon exercise
of this Warrant shall be
$              
(the “PURCHASE PRICE”), subject to adjustment as provided herein.


 


1.             INITIAL EXERCISE DATE; EXPIRATION.  Subject to Section 2.3 herein, this Warrant
may be exercised by the Holder at any time or from time to time before 5:00 PM,
Pacific time, on
                             
(the “EXERCISE PERIOD”) for that number of Warrant Shares set forth in Section
2.2 below.


 


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 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 certified or official bank check payable to the order of
the Company, of the Purchase Price of the shares of Common Stock to be
purchased hereunder in an amount equal to such Purchase Price.  For any partial exercise hereof, the Holder
shall designate in a subscription in the form of Schedule 1 attached hereto
delivered to the Company the number of shares of Common Stock that it 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           NUMBER OF WARRANT
SHARES.  Subject to adjustment as
hereinafter provided, as of the Date of Issuance, the rights represented by
this Warrant are immediately exercisable for
                   
shares of Common Stock of the Company.


 


2.3           TERMINATION OF THE
WARRANT UPON A CORPORATE TRANSACTION. 
Immediately following a Corporate Transaction (as hereinafter defined),
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, “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 shares subject to the Warrant (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 Purchase
  Price (as adjusted through the Conversion Date)

  
								



 


The Conversion
Right may only be exercised with respect to a whole number of shares subject to
the Warrant.  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


 


2

















 


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 the Warrant.


 


3.2           METHOD OF EXERCISE.  The Conversion Right may be exercised by the
Holder by the surrender of the 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
the Warrant that the Holder is exercising through the Conversion Right.  Such conversion shall be effective upon
receipt by the Company of the Warrant together with the aforesaid written statement,
or on such later date as is specified therein (the “CONVERSION DATE”).  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 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 an 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 an 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, then the fair market value shall be determined in
good faith by the Board of Directors of the Company.


 


4.             WHEN EXERCISE EFFECTIVE.  The exercise of this Warrant 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, 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, 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


 


3

















 


full shares of Common Stock to
which the Holder shall be entitled on such 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 in good faith by the
Board of Directors.


 


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 Purchase 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 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 into a larger number of shares
of Common Stock or (c) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, then and in each such event the
Purchase 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
Purchase 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 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.


 


6.4           WHEN ADJUSTMENTS TO BE
MADE.  No adjustment in the Purchase
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 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


 


4

















 


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 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 of the Company 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 of Directors
of the Company shall make an adjustment in the number and class of shares
available under the Warrant, the Purchase 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 of the
Warrant upon exercise for the same aggregate Purchase Price the total number,
class and kind of shares as the Holder would have owned had the 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 shareholder 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 Act and that such securities have not been and
will not be registered under the Act or any state securities law, and that such
securities must be held indefinitely unless a transfer can be made pursuant to
appropriate exemptions;


 


(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 its own account and not with a view to or for
sale in connection with any distribution of this Warrant or the Warrant Shares
and it has no intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state securities
laws;


 


5

















 


(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 an “excluded purchaser” within the meaning of Section 25102(f) of the
California Corporate Securities Law of 1968; 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, (ii) has had an opportunity to ask questions and receive answers from
the Company regarding the terms and conditions of this Warrant 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.


 


10.           MISCELLANEOUS.


 


10.1         TRANSFER OF WARRANT.  This Warrant shall not be transferable or
assignable by the Holder without the express written consent of the Company.


 


10.2         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, or mailed, postage prepaid, 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.


 


10.3         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.


 


10.4         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.


 


10.5         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.


 


10.6         GOVERNING LAW.  This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of California,
without giving effect to its conflicts of laws principles.


 


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]


 


6

















 


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


 


	
   

  	
   

  	
  DIGIRAD CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  9350 Trade Place

  	
   

  
	
   

  	
   

  	
  San Diego, CA  92126-6334

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
						



 


[SIGNATURE PAGE TO WARRANT OF DIGIRAD
CORPORATION]


 


7

















 


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.


 


8

















 


SCHEDULE OF WARRANTHOLDERS


 


	
  DATE

  	
   

  	
  WARRANTHOLDER

  	
   

  	
  PRICE

  	
   

  	
  NUMBER OF

  SHARES

  	
   

  	
  EXPIRATION
  /

  EXERCISE

  PERIOD

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11/14/00

  	
   

  	
  Cardiovascular
  Consultants

  	
   

  	
  $

  	
  1.50

  	
   

  	
  10,000

  	
   

  	
  11/14/05

  	
   

  
	
  11/14/00

  	
   

  	
  Robert
  McKenzie

  	
   

  	
  $

  	
  3.04

  	
   

  	
  500

  	
   

  	
  11/14/05

  	
   

  
	
  01/04/01

  	
   

  	
  Stephen A
  McAdams

  	
   

  	
  $

  	
  1.50

  	
   

  	
  10,000

  	
   

  	
  01/04/06

  	
   

  
	
  01/04/01

  	
   

  	
  John C
  Whitham

  	
   

  	
  $

  	
  1.50

  	
   

  	
  10,000

  	
   

  	
  01/04/06

  	
   

  
	
  01/26/01

  	
   

  	
  Oklahoma
  Cardiovascular Associates

  	
   

  	
  $

  	
  2.00

  	
   

  	
  20,000

  	
   

  	
  01/26/06

  	
   

  
	
  03/01/01

  	
   

  	
  Stephen A
  McAdams

  	
   

  	
  $

  	
  3.04

  	
   

  	
  5,000

  	
   

  	
  03/01/06

  	
   

  
	
  03/01/01

  	
   

  	
  John C
  Whitham

  	
   

  	
  $

  	
  3.04

  	
   

  	
  5,000

  	
   

  	
  03/01/06

  	
   

  
	
  03/28/01

  	
   

  	
  Stephen A
  McAdams

  	
   

  	
  $

  	
  3.04

  	
   

  	
  10,000

  	
   

  	
  03/28/06

  	
   

  
	
  03/28/01

  	
   

  	
  John C
  Whitham

  	
   

  	
  $

  	
  3.04

  	
   

  	
  10,000

  	
   

  	
  03/28/06

  	
   

  
	
  05/15/01

  	
   

  	
  Stephen A
  McAdams

  	
   

  	
  $

  	
  3.04

  	
   

  	
  5,000

  	
   

  	
  05/15/06

  	
   

  
	
  05/15/01

  	
   

  	
  John C
  Whitham

  	
   

  	
  $

  	
  3.04

  	
   

  	
  5,000

  	
   

  	
  05/15/06

  	
   

  
	
  05/15/01

  	
   

  	
  Austin Heart

  	
   

  	
  $

  	
  3.04

  	
   

  	
  10,000

  	
   

  	
  05/15/06

  	
   

  
	
  07/19/01

  	
   

  	
  Stephen A
  McAdams

  	
   

  	
  $

  	
  3.04

  	
   

  	
  50,000

  	
   

  	
  07/19/06

  	
   

  
	
  07/19/01

  	
   

  	
  John C
  Whitham

  	
   

  	
  $

  	
  3.04

  	
   

  	
  50,000

  	
   

  	
  07/19/06

  	
   

  
	
  12/14/01

  	
   

  	
  Stephen A.
  McAdams

  	
   

  	
  $

  	
  1.50

  	
   

  	
  8,333

  	
   

  	
  12/14/06

  	
   

  
	
  12/14/01

  	
   

  	
  John C.
  Whitham

  	
   

  	
  $

  	
  1.50

  	
   

  	
  8,333

  	
   

  	
  12/14/06

  	
   

  
	
  12/14/01

  	
   

  	
  Oklahoma
  Cardiovascular Associates

  	
   

  	
  $

  	
  3.00

  	
   

  	
  5,000

  	
   

  	
  12/14/06

  	
   

  
	
  03/05/02

  	
   

  	
  Dr. Bob
  Jaros

  	
   

  	
  $

  	
  3.00

  	
   

  	
  6,000

  	
   

  	
  03/05/07

  	
   

  
	
  03/05/02

  	
   

  	
  Dr. Dan
  Stobbe

  	
   

  	
  $

  	
  3.00

  	
   

  	
  5,000

  	
   

  	
  03/05/07

  	
   

  
	
  02/25/04

  	
   

  	
  James C.
  Engelman

  	
   

  	
  $

  	
  1.57

  	
   

  	
  15,000

  	
   

  	
  02/25/09

  	
   

  
	
  02/25/04

  	
   

  	
  Accel
  Management Group

  	
   

  	
  $

  	
  1.57

  	
   

  	
  5,000

  	
   

  	
  02/25/09

  	
   

  
	
  04/22/04

  	
   

  	
  Robert
  Greco, M.D.

  	
   

  	
  $

  	
  1.86

  	
   

  	
  5,000

  	
   

  	
  04/22/09

  	
   

  



 


9