Exhibit 10.41
[Executive Officers (Other than CEO)]
COLOR KINETICS INCORPORATED
Incentive Stock Option Agreement
Color Kinetics Incorporated, a
Delaware corporation (the “Company”), hereby grants as
of the date below (the “Grant Date”) to the person
named below (the “Employee”) and the Employee hereby
accepts, an option to purchase the number of shares (the
“Option Shares”) listed below of the Company’s
Common Stock $.001 par value per share (“Common
Stock”), at the price per share and with a vesting start date
(the “Vesting Start Date”) listed below, such option to
be subject to the terms and conditions specified herein and in the
attached Exhibit A .
Employee Name:
Grant Date:
Total Number of Shares:
Exercise Price Per Share:
Expiration Date of Option:
Vesting Schedule : This Option shall become
exercisable for 25% of the Total Number of Option Shares on
____________, and for an additional 6.25% of the Total Number of
Option Shares at the end of every three month period
thereafter.
Acceleration of Vesting Upon Change-in Control: If,
within 12 months after or during the 3 months prior to a
Change in Control, your employment is terminated (A) by the
Company for any reason other than for Cause or (B) by you for
Good Reason, then, provided you sign, on the date of your
termination, the Release Agreement previously provided to you as
Exhibit A to your agreement dated May 1, 2007, the
vesting of your Option Shares shall be fully accelerated on the
date of your termination (after giving effect to any applicable
revocation periods in the Release Agreement). In addition, the
vesting of your Option Shares shall accelerate by twelve months
upon a Change in Control, provided you are still an employee at the
time of the Change in Control. For purposes of clarity, in the case
of a Change in Control in which the consideration received by
holders of the Company’s common stock consists entirely of
cash, options vesting at or post the Change in Control are cash
settlement instruments, payable at the difference between the
Change in Control purchase price and the exercise price.
For purposes of this Agreement,
“Cause” shall mean (i) any material breach by you
of (A) any provision of any Employment Agreement, if any,
between yourself and the Company, (B) any written Company
policy, or (C) any other agreement between yourself and the
Company, or (ii) the commission of, conviction of or plea of
nolo contendere by you to (A) a felony or (B) a
misdemeanor involving moral turpitude, dishonesty or fraud, or
(iii) any other materially dishonest act or statement of you
with respect to the Company or any of its affiliates, or
(iv) any material misconduct, willful or deliberate
non-performance or gross negligence in the performance (other than
by reason of disability, as reasonably determined by the Company)
by you of any of your duties and responsibilities. The cessation of
your employment shall not be for Cause unless (x) there shall
have been delivered to you written notice from the Company
specifying the basis for such termination and (y), with respect to
clauses (i) and (iv), you have been provided with a period of
not less than thirty (30) days to cure such conduct determined
to constitute Cause hereunder.
For purposes of this Agreement,
“Good Reason” shall mean (i) a substantial adverse
change or diminution in the substantive nature or scope of your
responsibilities, authority, powers, functions and duties
(including office, titles and reporting requirements); provided,
however, that neither any failure of the Company to continue you in
the position of director, officer or employee of any of its
subsidiaries or other affiliates, nor the mere fact of a Change in
Control in which the Company thereafter becomes a subsidiary or
division of a corporation or similar entity shall in and of itself
constitute a substantial adverse change or diminution in the
substantive nature or scope of your responsibilities, authority,
powers, functions and duties (including office, titles and
reporting requirements), or (ii) a reduction in your
compensation to which you are entitled, or (iii) any material
failure of the Company to provide you with such other material
employee benefits to which you received
immediately prior to termination (for purposes of clarity, a
reduction in the amount of a benefit does not constitute a material
failure to provide such benefit so long as you are receiving such
benefit in a manner consistent with other employees who receive
such benefit), or (iv) the relocation of the offices at which
you are principally employed to a location more than 25 miles from
Boston, MA (until August 30, 2007) or, thereafter, Burlington,
MA without your consent.
For purposes of this Agreement, a
“Change of Control” with respect to a party means
(a) the direct or indirect acquisition, whether in one or a
series of transactions, by any person or related person
constituting a group, of (i) beneficial ownership of issued
and outstanding shares of stock of such party, the result of which
is that such person or such group possesses in excess of fifty
percent (50%) of the combined voting power of all then-issued and
outstanding stock of such party, or (ii) the power to elect,
appoint, or cause the election or appointment of at least a
majority of the members of the board of directors (or equivalent
governing body) of such party; (b) a merger or consolidation of a
party with a person, or a reorganization or recapitalization of a
party, provided that the result of such transaction, whether in one
or a series of related transactions, is that the holders of the
outstanding voting stock of such party immediately prior to such
consummation do not possess in excess of fifty percent (50%) of the
combined voting power of all of the then-issued and outstanding
stock of such party or surviving person of such party, whether
directly or indirectly, immediately after the consummation of such
transaction; or (c) the sale or disposition, whether directly
or indirectly, in one or a series of related transactions, of
substantially all of the assets of a party. For purposes of the
preceding sentence, the terms “person,”
“group” and “beneficial ownership” shall
have the meanings given to such terms under the Securities Exchange
Act of 1934, as amended.
Lock-Up Agreement; Other Terms and Conditions: All
shares purchased upon exercise of this Option are subject to the
lock-up agreement set forth in Section 9 of the attached Terms
and Conditions and to the other terms of the Option and Plan.
IN WITNESS WHEREOF, the Company and
the Employee have caused this instrument to be executed as of the
Grant Date set forth above.
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__________________________________________
(Employee Signature and Date)
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COLOR KINETICS INCORPORATED
10 Milk Street, Suite 1100
Boston, MA 02108
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__________________________________________
(Street Address)
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By:__________________________________________
William J. Sims
President & CEO |
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__________________________________________
(City/State/Zip Code)
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EXHIBIT A
Incentive Stock Option Agreement
Terms and Conditions
Color Kinetics Incorporated 2004
Stock Incentive Plan
This option is granted pursuant to
and governed by the Company’s 2004 Stock Incentive Plan (the
“Plan”) and, unless the context otherwise requires,
terms used herein shall have the same meaning as in the Plan.
Determinations made in connection with this Option pursuant to the
Plan shall be governed by the Plan as it exists on the Grant
Date.
Section 1. Grant of
Option. Subject to the terms and conditions hereinafter set
forth, the Holder is hereby given the right and option to purchase
from the Company shares of the Company’s Common Stock, $.001
par value per share (the “Common Stock”). The Incentive
Stock Option Agreement to which these Terms and Conditions are
attached sets forth (i) the expiration date of the Option,
(ii) its exercise price per share, (iii) the maximum
number of shares that the Holder may purchase upon exercise hereof,
(iv) the vesting schedule and (v) certain other terms and
conditions applicable to this Option and incorporated herein. The
right to purchase shares hereunder shall be cumulative.
This Option is and shall be subject
in every respect to the provisions of the Company’s 2004
Stock Incentive Plan, as amended from time to time, which is
incorporated herein by reference and made a part hereof. The Holder
hereby accepts this Option subject to all the terms and provisions
of the Plan and agrees that (i) in the event of any conflict
between the terms hereof and those of the Plan, the latter shall
prevail, and (ii) all decisions under and interpretations of
the Plan by the Board of Directors of the Company (the
“Board”) or the Committee shall be final, binding and
conclusive upon the Holder and his heirs and legal representatives.
References herein to the “Committee” shall mean the
Committee as defined in the Plan.
Although this Option is intended to
qualify as an incentive stock option under the Internal Revenue
Code of 1986, as amended, the Company makes no representation as to
the tax treatment to the Holder upon receipt or exercise of this
Option or sale or other disposition of the shares covered by this
Option .
Section 2. Exercise of
Option. This Option may be exercised only to the extent such
Option has vested pursuant to the terms of Section 1. Purchase
of any shares hereunder shall be made by delivery to the Company of
a written notice of exercise (the “Notice”) setting
forth the number of shares with respect to which the Option is
being exercised and the address to which the certificate for such
shares is to be mailed, accompanied by:
(i) cash, certified or bank check or
postal money order payable to the order of the Company for an
amount equal to the Option price of such shares;
(ii) with the consent of the
Committee, shares of Common Stock of the Company which
(a) either have been purchased by the Holder on the open
market, or (b) have been beneficially owned by the Holder for
a period of at least six months and are not then subject to
restriction under any Company plan (“mature shares”);
such surrendered shares shall have a fair market value equal to or
less than the Option price of such shares and shall be accompanied
by cash or a certified or bank check or postal money order in an
amount equal to the difference, if any, between the Option price of
such shares and the fair market value of such shares;
(iii) with the consent of the
Committee, a personal recourse note issued by the Holder to the
Company in a principal amount equal to such aggregate exercise
price and with such other terms, including interest rate and
maturity, as the Company may determine in its discretion, provided
that the interest rate borne by such note shall not be less than
the lowest applicable federal rate, as defined in Section 1274(d)
of the Internal Revenue Code of 1986, as amended.
(iv) with the consent of the
Committee, if the class of Common Stock is registered under the
Securities Exchange Act of 1934 at that time, subject to rules as
may be established by the Committee, irrevocable instructions
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to a broker to
promptly deliver to the Company cash or a check payable and
acceptable to the Company for the purchase price;
(v) with the consent of the
Committee, instructions to reduce the number of shares otherwise
issuable to the Holder upon the exercise of the Option by a number
of shares of Common Stock having a fair market equal to the
aggregate exercise price; provided, however, that the Holder
otherwise owns an equal number of mature shares; or
(vi) w
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