Exhibit
10.40
CAMBRIDGE HEART, INC.
Incentive Stock Option
Agreement
Granted Under 2001 Stock
Incentive Plan
This agreement evidences the grant
by Cambridge Heart, Inc., a Delaware corporation (the
“Company”), on
(the “Grant Date”) to
,
an employee of the Company (the “Participant”), of an
option to purchase, in whole or in part, on the terms provided
herein and in the Company’s 2001 Stock Incentive Plan (the
“Plan”), a total of
shares (the “Shares”) of common stock, $.001 par value
per share, of the Company (“Common Stock”) at
$
per Share (the “Option”). Unless earlier terminated,
this Option shall expire on
(the “Final Exercise Date”).
It is intended that the option
evidenced by this agreement shall be an incentive stock option as
defined in Section 422 of the Internal Revenue Code of 1986,
as amended, and any regulations promulgated thereunder (the
“Code”), and subject to the $100,000 limitation/year.
Except as otherwise indicated by the context, the term
“Participant”, as used in this option, shall be deemed
to include any person who acquires the right to exercise this
option validly under its terms.
(a) General . This Option
will become exercisable (“vest”) as to
.
(b) Cumulative Right of
Exercise . The right to exercise the Option shall be cumulative
so that to the extent the Option is not exercised in any period to
the maximum extent permissible it shall continue to be exercisable,
in whole or in part, with respect to all shares for which it is
vested until the earlier of the Final Exercise Date or the
termination of this Option under Section 3 hereof or the
Plan.
(a) Form of Exercise . Each
election to exercise this Option shall be in writing, signed by the
Participant, and received by the Company at its principal office,
accompanied by this agreement, and payment in full in the manner
provided in the Plan. The Participant may purchase less than the
number of shares covered hereby, provided that no partial exercise
of this Option may be for any fractional share.
(b) Continuous Relationship with
the Company Required . Except as otherwise provided in this
Section 3, this Option may not be exercised unless the
Participant, at the time he or she exercises this Option, is, and
has been at all times since the Grant Date, an employee, officer or
director of, or consultant or advisor to, the Company or any parent
or subsidiary of the Company as defined in Section 424(e) or
(f) of the Code (an “Eligible
Participant”).
(c) Termination of Relationship
with the Company . If the Participant ceases to be an Eligible
Participant for any reason, then, except as provided in
paragraphs (d) and (e) below, the right to exercise this
Option shall terminate three months after such cessation (but in no
event after the Final Exercise Date), provided that this
Option shall be exercisable only to the extent that the Participant
was entitled to exercise this Option on the date of such cessation.
Notwithstanding the foregoing, if the Participant, prior to the
Final Exercise Date, violates the non-competition or
confidentiality provisions of any employment contract,
confidentiality and nondisclosure agreement or other agreement
between the Participant and the Company, the right to exercise this
Option shall terminate immediately upon such violation.
(d) Exercise Period Upon Death or
Disability . If the Participant dies or becomes disabled
(within the meaning of Section 22(e)(3) of the Code) prior to
the Final Exercise Date while he or she is an Eligible Participant
and the Company has not terminated such relationship for
“cause” as specified in paragraph (e) below, this
Option shall be exercisable, within the period of one year
following the date of death or disability of the Participant, by
the Participant (or in the case of death by an authorized
transferee), provided that this Option shall be exercisable
only to the extent that this Option was exercisable by the
Participant on the date of his or her death or disability, and
further provided that this Option shall not be exercisable after
the Final Exercise Date.
(e) Discharge for Cause . If
the Participant, prior to the Final Exercise Date, is discharged by
the Company for “Cause” (as defined below), the right
to exercise this Option shall terminate immediately upon the
effective date of such discharge. “Cause” shall mean
willful misconduct by the Participant or willful failure by the
Participant to perf
