MOLECULAR INSIGHT
PHARMACEUTICALS, INC.
DANIEL PETERS INDUCEMENT
GRANT
NONQUALIFIED STOCK OPTION AWARD AGREEMENT
Mr. Daniel
L. Peters
6 Whitesell Lane
Newtown, PA 18940
Molecular Insight
Pharmaceuticals, Inc., a Massachusetts corporation (the “
Company ”) hereby grants an option to you to
purchase from the Company one
hundred twenty five thousand (125,000) shares of Common
Stock of the Company (the “ Option ”) at
an exercise price per share equal to $5.70, which grant shall be
subject to all of the terms and conditions set forth below in this
Option Award Agreement (the “ Option Award
”).
This Option is
granted outside the Company’s Amended and Restated 2006
Equity Incentive Plan and is not intended to satisfy the
requirements of Section 422 of the Internal Revenue Code and
thus shall not be an “incentive stock option.” This
Option is being granted as an “employee inducement
award” within the meaning of Rule 4350(i)(1)A)(iv) of
the NASDAQ Stock Market Marketplace Rules.
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Definitions:
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Certain
capitalized terms used in this Option Award are defined as
follows:
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(a)
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“Affiliate” means any
entity that, directly or through one or more intermediaries, is
controlled by, controls, or is under common control with the
Company within the meaning of Code Sections 414(b) or (c),
provided that, in applying such provisions, the phrase
“at least 50 percent” shall be used in place of
“at least 80 percent” each place it appears
therein.
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(b)
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“Board” means the Board
of Directors of the Company.
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(c)
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“Cause” shall mean a
vote of the Board of the Company resolving that you should be
dismissed as a result of (i) the commission of any act
constituting financial dishonesty against the Company (which act
would be chargeable as a crime under applicable law);
(ii) engaging in any other act of dishonesty, fraud,
intentional misrepresentation, moral turpitude, illegality or
harassment which, as determined in good faith by the Board, would
materially adversely affect the business or the reputation of the
Company with its customers, suppliers, lenders and/or other third
parties with whom the Company does business; (iii) the
repeated failure to follow the written directives of the Board,
which failure has not been corrected within 30 days after
written notice from the Board, or (iv) any material violation
of the Company’s written policies, or willful and deliberate
non-performance of duty in connection with the business affairs of
the Company, after written warning of such violation from the Board
and failure to remedy the same within 30 days after such
notice.
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(d)
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“Change of Control”
means the occurrence of any one of the following events after the
Grant Date:
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(i) A change in
the ownership of the Company, which shall occur on the date that
any one Person, or more than one Person Acting as a Group (as
defined below), other than Excluded Person(s) (as defined below),
acquires ownership of the stock of the Company that, together with
the stock then held by such Person or group, constitutes more than
fifty percent (50%) of the total fair market value of the stock of
the Company. However, if any one Person or more than one Person
Acting as a Group is considered to own more than fifty (50%) of the
total fair market value of the stock of the Company, the
acquisition of additional stock by the same Person or Persons is
not considered to cause a Change of Control.
(ii) A change in
the effective control of the Company, which shall occur on the date
that:
(A) Any one
Person, or more than one Person Acting as a Group, other than
Excluded Person(s), acquires (or has acquired during the twelve
(12) month period ending on the date of the most recent acquisition
by such Person or Persons) ownership of stock of the Company
possessing thirty-five percent (35%) or more of the total voting
power of the stock of the Company. However, if any one Person or
more than one Person Acting as a Group is considered to own more
than thirty-five percent (35%) of the total voting power of the
stock of the Company, the acquisition of additional voting stock by
the same Person or Persons is not considered to cause a Change of
Control; or
(B) A majority of
the members of the Company’s Board of Directors is replaced
during any twelve (12) month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Company’s Board of Directors prior to the date
of the appointment or election.
(iii) A change in
the ownership of a substantial portion of the Company’s
assets, which shall occur on the date that any one Person, or more
than one Person Acting as a Group, other than Excluded Person(s),
acquires (or has acquired during the twelve (12) month period
ending on the date of the most recent acquisition by such Person or
Persons) assets from the Company that have a total Gross Fair
Market Value (as defined below) equal to more than sixty percent
(60%) of the total Gross Fair Market Value of all the assets of the
Company immediately prior to such acquisition or acquisitions,
other than an Excluded Transaction (as defined below).
2
For purposes of
this subsection (d):
“Gross Fair
Market Value” means the value of the assets of the Company,
or the value of the assets being disposed of, as applicable,
determined without regard to any liabilities associated with such
assets.
Persons will be
considered to be “Acting as a Group” if they act in
concert, provided that Persons will not be considered to be Acting
as a Group solely because they purchase or own stock of the Company
at the same time, or as a result of the same public offering, or
solely because they purchase assets of the Company at the same
time, or as a result of the same public offering, as the case may
be. However, Persons will be considered to be Acting as a Group if
they are owners of an entity that enters into a merger,
consolidation, purchase or acquisition of assets, or similar
business transaction with the Company.
The term
“Excluded Transaction” means any a transaction in which
assets are transferred to: (A) a shareholder of the Company
(determined immediately before the asset transfer) in exchange for
or with respect to its stock; (B) an entity, fifty percent
(50%) or more of the total value or voting power of which is owned,
directly or indirectly, by the Company (determined after the asset
transfer); (C) a Person, or more than one Person Acting as a
Group, that owns, directly or indirectly, fifty percent (50%) or
more of the total value or voting power of all the outstanding
stock of the Company (determined after the asset transfer); or
(D) an entity at least fifty percent (50%) of the total value
or voting power of which is owned, directly or indirectly, by a
Person described in clause (C) (determined after the asset
transfer).
The term
“Excluded Person(s)” means (A) the Company or any
of its Affiliates, (B) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its Affiliates, (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (D) a
corporation owned, directly or indirectly, by the shareholders of
the Company in substantially the same proportions as their
ownership of stock in the Company.
The term
“Change of Control” as defined above shall be amended
and construed in accordance with any subseq
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