Exhibit 10.1


 


PHASE FORWARD INCORPORATED


2004 STOCK OPTION AND INCENTIVE PLAN


As Amended and Restated March 2009


 


1.                                       Purpose
and Eligibility


 


The purpose of this 2004 Stock Option and
Incentive Plan (the “Plan”) of
Phase Forward Incorporated (the “Company”)
is to provide stock options and other equity interests in the Company (each an “Award”) to employees, officers, directors,
consultants and advisors of the Company and its Subsidiaries, all of whom are
eligible to receive Awards under the Plan. Any person to whom an Award has been
granted under the Plan is called a “Participant.”
Additional definitions are contained in Section 9.


 


2.                                       Administration


 


The Plan will be administered by the
Compensation Committee (the “Committee”)
of the Board of Directors of the Company (the “Board”).
The Committee shall, subject to the provisions of the Plan, have the power to
construe this Plan, to determine all questions hereunder, and to adopt and
amend such rules and regulations for the administration of this Plan as it
may deem desirable. No member of the Board or the Committee shall be liable for
any action or determination made in good faith with respect to this Plan or any
option granted under it.


 


3.                                       Stock
Available for Awards


 


a.               Number of Shares.  Subject to adjustment under Section 3(c) and
the next sentence, the aggregate number of shares of Common Stock of the
Company (the “Common Stock”) that
may be issued pursuant to the Plan is 3,981,505 shares. Subject to stockholder
approval, the number of reserved shares of Common Stock under the Plan shall be
increased from 3,981,505 shares to 5,481,505 shares. If any Award expires, or
is terminated, surrendered, cancelled or forfeited, in whole or in part, the
unissued Common Stock covered by such Award shall again be available for the
grant of Awards under the Plan. If shares of Common Stock issued pursuant to
the Plan are surrendered or forfeited to, the Company, such shares of Common
Stock shall again be available for the grant of Awards under the Plan. Shares
tendered or held back upon exercise of an Option or settlement of an Award to
cover the exercise price or tax withholding shall not be available for future
issuance under the Plan. In addition, the grant of a stock appreciation right
shall reduce the number of shares available for grant under the Plan by the
gross number of shares underlying such stock appreciation right. Upon the
exercise of such stock appreciation right, the authorized share pool under this
Section 3 shall not be credited with any additional shares. Shares issued
under the Plan may consist in whole or in part of authorized but unissued
shares or treasury shares.


 


b.              Per-Participant Limit.  Subject to adjustment under Section 3(c),
no Participant may be granted Options or stock appreciation rights during any
one fiscal year to purchase more than 750,000 shares of Common Stock.


 


c.               Adjustment to Common Stock.  In the event of any stock split, stock
dividend, extraordinary cash dividend, recapitalization, reorganization,
merger, consolidation, combination, exchange of shares, liquidation, spin-off,
split-up, or other similar change in capitalization or event, (i) the
number and class of securities available for Awards under the Plan and the per-Participant
share limit, (ii) the number and class of securities, vesting schedule and
exercise price per share subject to each outstanding Option, (iii) the
repurchase price per security subject to repurchase, and (iv) the terms of
each other outstanding stock- based Award shall be adjusted by the Company (or
substituted Awards 


 


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may be made) to the extent the Committee
shall determine, in good faith, that such an adjustment (or substitution) is
appropriate. If Section 8(e)(i) applies for any event, this Section 3(c) shall
not be applicable.


 


4.                                       Stock
Options


 


a.               General.  The Committee may grant options to purchase
Common Stock (each, an “Option”)
and determine the number of shares of Common Stock to be covered by each
Option, the exercise price of each Option and the conditions and limitations
applicable to the exercise of each Option and the Common Stock issued upon the
exercise of each Option, including vesting provisions and restrictions relating
to applicable federal or state securities laws, as it considers advisable.


 


b.              Incentive Stock Options.  An Option that the Committee intends to be an
“incentive stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall be granted
only to employees of the Company and shall be subject to and shall be construed
consistently with the requirements of Section 422 of the Code. The
Committee and the Company shall have no liability if an Option or any part
thereof that is intended to be an Incentive Stock Option does not qualify as
such. An Option or any part thereof that does not qualify as an Incentive Stock
Option is referred to herein as a “Nonstatutory
Stock Option.”


 


c.               Exercise Price.  The Committee shall establish the exercise
price (or determine the method by which the exercise price shall be determined)
at the time each Option is granted and specify it in the applicable option
agreement. The exercise price of each Option shall not be less than
100 percent of the per share fair market value of the Common Stock on the
date of grant. Fair market value shall be determined by reference to market
quotations on the Nasdaq National Market System.


 


d.              Duration of Options.  Each Option shall be exercisable at such
times and subject to such terms and conditions as the Committee may specify in
the applicable option agreement. Each Option shall expire ten years after the
date of grant.


 


e.               Exercise of Option.  Options may be exercised only by delivery to
the Company of a written notice of exercise signed by the proper person
together with payment in full as specified in Section 4(f) for the
number of shares for which the Option is exercised.


 


f.                 Payment
Upon Exercise.  Common Stock
purchased upon the exercise of an Option shall be paid for by one or any
combination of the following forms of payment:


 


(i)             by check payable to the
order of the Company;


 


(ii)          except as otherwise
explicitly provided in the applicable option agreement, and only if the Common
Stock is then publicly traded, delivery of an irrevocable and unconditional
undertaking by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price, or delivery by the Participant to
the Company of a copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a check
sufficient to pay the exercise price; or


 


(iii)       to the extent explicitly
provided in the applicable option agreement, by (x) delivery of shares of
Common Stock owned by the Participant valued at fair market value and which
have been held by the Participant for at least six months (as determined by the
Committee or as determined pursuant to the applicable option agreement), or (y) payment
of such other lawful consideration as the Committee may determine.


 


5.                                       Restricted
Stock


 


a.               Grants.  The Committee may grant a Restricted Stock
Award to a Participant. A Restricted Stock Award is an award entitling the
recipient to acquire, at such purchase price (which may be zero) 


 


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as determined by the Committee, shares of Common Stock subject to such
restrictions and conditions as the Committee may determine (each, a “Restricted Stock Award”). If a Participant’s
employment (or other service relationship) with the Company or its Subsidiary
is terminated prior to satisfaction of such restrictions and conditions, any
Restricted Stock that has not vested shall automatically and without
requirement of notice to the Participant from the Company be deemed to be
forfeited to the Company, subject to the payment by the Company of the original
purchase price for such Restricted Stock, if any.


 


b.              Terms and Conditions.  The Committee shall determine the terms and
conditions of any such Restricted Stock Award. Conditions may be based on
continuing employment (or other service relationship) and/or achievement of pre-established
performance goals and objectives. In the event a Restricted Stock Award granted
to an employee shall have a performance goal, the restriction period with
respect to such Award shall not be less than one year, and in the event a
Restricted Stock Award granted to an employee shall be based on continuing
employment, the total restriction period with respect to such Award shall not
be less than three years; provided, however, the risks of forfeiture can lapse
incrementally over the three-year period. No dividends may be earned under a
Restricted Stock Award. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and,
unless otherwise determined by the Committee, deposited by the Participant,
together with a stock power endorsed in blank, with the Company (or its
designee). After the expiration of the applicable restrictions and conditions,
the Company (or such designee) shall deliver the certificates no longer subject
to such restrictions to the Participant or, if the Participant has died, to the
beneficiary designated by a Participant, in a manner determined by the
Committee, to receive amounts due or exercise rights of the Participant in the
event of the Participant’s death (the “Designated
Beneficiary”). In the absence of an effective designation by a
Participant, Designated Beneficiary shall mean the Participant’s estate.


 


6.                                       Other
Stock-Based Awards


 


The Committee shall have the
right to grant other Awards based upon the Common Stock having such terms and
conditions as the Committee may determine, including, without limitation, the
grant of shares based upon certain conditions, the grant of securities
convertible into Common Stock and the grant of stock appreciation rights,
phantom stock awards or stock units. In the event an Other Stock-Based Award
granted to an employee shall have a performance goal, the restriction period
with respect to such Award shall not be less than one year, and in the event an
Other Stock-Based Award granted to an employee shall be based on continuing
employment, the total restriction period with respect to such Award shall not
be less than three years; provided, however, the risks of forfeiture can lapse
incrementally over the three-year period. No dividends may be earned under any
other Stock-Based Award.


 


7.                                       Performance-Based
Awards to Covered Employees


 


a.               Performance-Based Awards.  Any employee or other key person providing
services to the Company and who is selected by the Committee may be granted one
or more Performance-Based Awards in the form of a Restricted Stock Award or
Other Stock-Based Award payable upon the attainment of Performance Goals that
are established by the Committee and relate to one or more of the Performance
Criteria, in each case on a specified date or dates or over any period or
periods determined by the Committee. The Committee shall define in an objective
fashion the manner of calculating the Performance Criteria it selects to use
for any Performance Cycle. Depending on the Performance Criteria used to
establish such Performance Goals, the Performance Goals may be expressed in
terms of overall Company performance or the performance of a division, business
unit, or an individual. The Committee, in its discretion, may adjust or modify
the calculation of Performance Goals for such Performance Cycle in order to
prevent the dilution or enlargement of the rights of an individual (i) in
the event of, or in anticipation of, any unusual or extraordinary corporate
item, 


 


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transaction, event or development, (ii) in recognition of, or in
anticipation of, any other unusual or nonrecurring events affecting the
Company, or the financial statements of the Company, or (iii) in response
to, or in anticipation of, changes in applicable laws, regulations, accounting
principles, or business conditions provided however, that the Committee may not
exercise such discretion in a manner that would increase the Performance-Based
Award granted to a Covered Employee. Each Performance-Based Award shall comply
with the provisions set forth below.


 


(b)         Grant of Performance-Based Awards.  With respect to each Performance-Based Award
granted to a Covered Employee, the Committee shall select, within the first
90 days of a Performance Cycle (or, if shorter, within the maximum period
allowed under Section 162(m) of the Code) the Performance Criteria
for such grant, and the Performance Goals with respect to each Performance
Criterion (including a threshold level of performance below which no amount
will become payable with respect to such Award). Each Performance-Based Award
will specify the amount payable, or the formula for determining the amount
payable, upon achievement of the various applicable performance targets. The
Performance Criteria established by the Committee may be (but need not be)
different for each Performance Cycle and different Performance Goals may be
applicable to Performance-Based Awards to different Covered Employees.


 


(c)          Payment of Performance-Based
Awards.  Following the completion of a
Performance Cycle, the Committee shall meet to review and certify in writing
whether, and to what extent, the Performance Goals for the Performance Cycle
have been achieved and, if so, to also calculate and certify in writing the
amount of the Performance-Based Awards earned for the Performance Cycle. The
Committee shall then determine the actual size of each Covered Employee’s
Performance-Based Award, and, in doing so, may reduce or eliminate the amount
of the Performance-Based Award for a Covered Employee if, in its sole judgment,
such reduction or elimination is appropriate.


 


(d)         Maximum Award Payable.  The maximum Performance- Based Award payable
to any one Covered Employee under the Plan for a Performance Cycle is 300,000
shares of Stock (subject to adjustment as provided in Section 3(d) hereof).


 


8.                                       General
Provisions Applicable to Awards


 


a.               Transferability of Awards.  Except as the Committee may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, shall be
exercisable only by the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized transferees.


 


b.              Documentation.  Each Award under the Plan shall be evidenced
by a written instrument in such form as the Committee shall determine or as
executed by an officer of the Company pursuant to authority delegated by the
Committee. Each Award may contain terms and conditions in addition to those set
forth in the Plan; provided, that
such terms and conditions do not contravene the provisions of the Plan.


 


c.               Committee Discretion.  The terms of each type of Award need not be
identical, and the Committee need not treat Participants uniformly.


 


d.              Termination of Status.  In the event a Participant dies prior to the
vesting of the first tranche of shares subject to an Award, such Award will
automatically accelerate to provide that the first tranche of shares shall be
exercisable for the remainder of the term of the Award. The Committee shall otherwise
determine the effect on an Award of the disability, death, retirement,
authorized leave of absence or other change in the employment or other status
of a Participant and the extent to which, 


 


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and the period during which, the Participant, or the Participant’s
legal representative, conservator, guardian or Designated Beneficiary, may
exercise rights under the Award.


 


e.               Acquisition of the Company


 


(i)             Consequences
of an Acquisition.  Upon the
consummation of an Acquisition, the Board or the board of directors of the
surviving or acquiring entity (as used in this Section 8(e)(i), also the “Board”), shall, as to outstanding Awards
(on the same basis or on different bases as the Board shall specify), make
appropriate provision for the continuation of such Awards by the Company or the
assumption of such Awards by the surviving or acquiring entity and by
substituting on an equitable basis for the shares then subject to such Awards
either (a) the consideration payable with respect to the outstanding
shares of Common Stock in connection with the Acquisition, (b) shares of
stock of the surviving or acquiring corporation or (c) such other
securities or other consideration as the Board deems appropriate, the fair
market value of which (as determined by the Board in its sole discretion) shall
not materially differ from the fair market value of the shares of Common Stock
subject to such Awards immediately preceding the Acquisition; provided, however, that, notwithstanding
the foregoing, the form of instruments evidencing Options granted pursuant to
this Plan shall provide that in the event of an Acquisition, then twenty-five
percent (25%) of the shares underlying the Options issued pursuant to such
instruments shall immediately vest and become exercisable (in addition to any
portion of the Options already vested and exercisable). In addition to or in
lieu of the foregoing, with respect to outstanding Options, the Board may, on
the same basis or on different bases as the Board shall specify, upon written
notice to the affected optionees, provide that one or more Options then
outstanding must be exercised, in whole or in part, within a specified number
of days of the date of such notice, but in no event less than five (5) business
days, at the end of which period such Options shall terminate, or provide that
one or more Options then outstanding, in whole or in part, shall be terminated
in exchange for a cash payment equal to the excess of the fair market value (as
determined by the Board in its sole discretion) for the shares subject to such
Options over the exercise price thereof; provided,
however, that before terminating any portion of an Option that is
not vested or exercisable (other than in exchange for a cash payment), the
Board must first accelerate in full the exercisability of the portion that is
to be terminated. Unless otherwise determined by the Board (on the same basis
or on different bases as the Board shall specify), any repurchase rights or
other rights of the Company that relate to an Option or other Award shall
continue to apply to consideration, including cash, that has been substituted,
assumed or amended for an Option or other Award pursuant to this paragraph. The
Company may hold in escrow all or any portion of any such consideration in
order to effectuate any continuing restrictions.


 


(ii)          Acquisition
Defined.  An “Acquisition” shall mean:


 


(a)                                  a merger or
consolidation of the Company with or into any other corporation or other
business entity in which the Company is the surviving corporation (except one
in which the holders of capital stock of the Company immediately prior to such
merger or consolidation continue to hold at least a majority of the outstanding
securities having the right to vote in an election of the Board (“Voting Stock”) of the Company); or any
such merger or consolidation in which the Company is not the surviving
corporation;


 


(b)                                 a sale, lease,
exchange or other transfer (in one transaction or a related series of
transactions) of all or substantially all of the Company’s assets;


 


(c)                                  the acquisition
by any person or any group of persons (other than the Company, any of its
direct or indirect subsidiaries, or any trustee, fiduciary or other person or
entity holding securities under any employee benefit plan or trust of the
Company or any of its direct or indirect subsidiaries) acting together in any
transaction or related series of transactions, of such number of shares of the
Company’s Voting Stock as causes such person, or group of 


 


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persons, to own
beneficially, directly or indirectly, as of the time immediately after such
transaction or series of transactions, 50% or more of the combined voting power
of the Voting Stock of the Company other than as a result of an acquisition of
securities directly from the Company, or solely as a result of an acquisition
of securities by the Company which by reducing the number of shares of the
Voting Stock outstanding increases the proportionate voting power represented
by the Voting Stock owned by any such person to 50% or more of the combined
voting power of such Voting Stock; and


 


(d)                                 a change in the
composition of the Board following a tender offer or proxy contest, as a result
of which persons who, immediately prior to a tender offer or proxy contest,
constituted the Company’s Board shall cease to constitute at least a majority
of the members of the Board.


 


(iii)       Assumption
of Options Upon Certain Events.  In connection with a merger or consolidation
of an entity with the Company or the acquisition by the Company of property or
stock of an entity, the Board may grant Awards under the Plan in substitution
for stock and stock-based awards issued by such entity or an affiliate thereof.
The substitute Awards shall be granted on such terms and conditions as the
Board considers appropriate in the circumstances.


 


(iv)      Parachute
Awards.  If, in connection with an
Acquisition described therein, a tax under Section 4999 of the Code would
be imposed on the Participant (after taking into account the exceptions set
forth in Sections 280G(b)(4) and 280G(b)(5) of the Code), then
the number of Awards which shall become exercisable, realizable or vested shall
be reduced (or delayed), to the minimum extent necessary, so that no such tax
would be imposed on the Participant (the Awards not becoming so accelerated,
realizable or vested, the “Parachute Awards”);
provided, however, that if the “aggregate
present value” of the Parachute Awards would exceed the tax that, but for this
sentence, would be imposed on the Participant under Section 4999 of the
Code in connection with the Acquisition, then the Awards shall become
immediately exercisable, realizable and vested without regard to the provisions
of this sentence. For purposes of the preceding sentence, the “aggregate
present value” of an Award shall be calculated on an after-tax basis (other
than taxes imposed by Section 4999 of the Code) and shall be based on
economic principles rather than the principles set forth under Section 280G
of the Code and the regulations promulgated thereunder. All determinations
required to be made under this Section 8(e)(iv) shall be made by the
Company.


 


f.                 Withholding.  Each Participant shall pay to the Company, or
make provisions satisfactory to the Company for payment of, any taxes required
by law to be withheld in connection with Awards to such Participant no later
than the date of the event creating the tax liability. The Committee may allow
Participants to satisfy the minimum tax withholding obligation in whole or in
part by transferring shares of Common Stock, including shares retained from the
Award creating the tax obligation, valued at their fair market value (as
determined by the Committee or as determined pursuant to the applicable option
agreement). The Company may, to the extent permitted by law, deduct any such
tax obligations from any payment of any kind otherwise due to a Participant.


 


g.              Amendment of Awards.  The Committee may amend, modify or terminate
any outstanding Award including, but not limited to, substituting therefor
another Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the
Participant’s consent to such action shall be required unless the Committee
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant. Except as provided in Section 3(c) or
8(e), the Committee shall obtain stockholder approval prior to taking any
action to reduce the exercise price of outstanding Options and stock
appreciation right or effect repricing through cancellation and regrants.


 


h.              Conditions on Delivery of
Stock.  The Company will not be
obligated to deliver any shares of Common Stock pursuant to the Plan or to
remove restrictions from shares previously delivered under 


 


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the Plan until (i) all conditions of the Award have been met or
removed to the satisfaction of the Company, (ii) in the opinion of the
Company’s counsel, all other legal matters in connection with the issuance and
delivery of such shares have been satisfied, including any applicable
securities laws and any applicable stock exchange or stock market rules and
regulations, and (iii) the Participant has executed and delivered to the
Company such representations or agreements as the Company may consider
appropriate to satisfy the requirements of any applicable laws, rules or
regulations including any applicable withholding tax.


 


i.                  Acceleration.  The Committee may at any time provide that
any Options shall become immediately exercisable in full or in part, that any
Restricted Stock Awards shall be free of some or all restrictions, or that any
Other Stock-Based Awards may become exercisable in full or in part or free of
some or all restrictions or conditions, or otherwise realizable in full or in
part, as the case may be, despite the fact that the foregoing actions may (i) cause
the application of Sections 280G and 4999 of the Code if a change in
control of the Company occurs, or (ii) disqualify all or part of the
Option as an Incentive Stock Option.


 


9.                                       Miscellaneous


 


a.               Definitions.


 


(i)             “Company,” for purposes of eligibility under the Plan, shall
include any present or future subsidiary corporations of Phase Forward
Incorporated, as defined in Section 424(f) of the Code (a “Subsidiary”), and any present or future
parent corporation of Phase Forward Incorporation, as defined in Section 424(e) of
the Code. For purposes of Awards other than Incentive Stock Options, the term “Company” shall include any other business
venture in which the Company has a direct or indirect significant interest, as
determined by the Committee in its sole discretion.


 


(ii)          “Code” means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.


 


(iii)       “Covered Employee” means an employee who is a “Covered
Employee” within the meaning of Section 162(m) of the Code.


 


(iii)       “employee” for purposes of eligibility under the Plan (but
not for purposes of Section 4(b)) shall include a person to whom an offer
of employment has been extended by the Company.


 


(iv)      “Performance-Based Award” means any Restricted Stock Award or
Other Stock-Based Award granted to a Covered Employee that is intended to
qualify as “performance-based compensation” under Section 162(m) of
the Code and the regulations promulgated thereunder.


 


(v)         “Performance Criteria” means the criteria that the Committee
selects for purposes of establishing the Performance Goal or Performance Goals
for an individual for a Performance Cycle. The Performance Criteria (which
shall be applicable to the organizational level specified by the Committee,
including, but not limited to, the Company or a unit, division, group, or
Subsidiary of the Company) that will be used to establish Performance Goals are
limited to the following: earnings before interest, taxes, depreciation and
amortization, net income (loss) (either before or after interest, taxes,
depreciation and/or amortization), changes in the market price of the Stock,
economic value-added, sales or revenue, acquisitions or strategic transactions,
operating income (loss), cash flow (including, but not limited to, operating
cash flow and free cash flow), return on capital, assets, equity, or
investment, stockholder returns, return on sales, gross or net profit levels,
productivity, expense, margins, operating efficiency, working capital, earnings
(loss) per share of Stock, sales or market shares, any of which may be measured
either in absolute terms or as compared to any incremental increase or as
compared to results of a peer group.


 


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(vi)      “Performance Cycle” means one or more periods of time, which
may be of varying and overlapping durations, as the Committee may select, over
which the attainment of one or more Performance Criteria will be measured for
the purpose of determining a Participant’s right to and the payment of a
Restricted Stock Award or Other Stock-Based Award. Each such period shall not
be less than 12 months.


 


(vii)   “Performance Goals” means, for a Performance Cycle, the
specific goals established in writing by the Committee for a Performance Cycle
based upon the Performance Criteria.


 


b.              No Right To Employment or
Other Status.  No person
shall have any claim or right to be granted an Award, and the grant of an Award
shall not be construed as giving a Participant the right to continued
employment or any other relationship with the Company. The Company expressly
reserves the right at any time to dismiss or otherwise terminate its
relationship with a Participant free from any liability or claim under the
Plan.


 


c.               No Rights As Stockholder.  Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed with
respect to an Award until becoming the record holder thereof.


 


d.              Effective Date and Term of
Plan.  The Plan shall become effective
on the date on which it is adopted by the Board. No Awards shall be granted
under the Plan after the completion of ten years from the date on which the
Plan was adopted by the Board, but Awards previously granted may extend beyond
that date.


 


e.               Amendment of Plan.  The Board may amend, suspend or terminate the
Plan or any portion thereof at any time; provided,
however, that any material Plan amendments (other than amendments
that curtail the scope of the Plan) shall be subject to approval by the Company
stockholders entitled to vote at a meeting of stockholders, including any Plan
amendments that (i) increase the number of shares reserved for issuance
under the Plan, (ii) expand the type of Awards available under, materially
expand the class of individuals eligible to participate in, or materially
extend the term of, the Plan, or (iii) require stockholder approval under
the rules of the Nasdaq National Market or under any other applicable law,
rule or regulation. In addition, to the extent determined by the Committee
to be required by the Code to ensure that Incentive Stock Options granted under
the Plan are qualified under Section 422 of the Code or to ensure that
compensation earned under Awards qualifies as performance-based compensation
under Section 162(m) of the Code, Plan amendments shall be subject to
approval by the Company stockholders entitled to vote at a meeting of
stockholders.


 


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f.                 Governing
Law.  The provisions of the Plan and
all Awards made hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware, without regard to any applicable
conflicts of law.


 


 


	
   

  	
  Original Plan

  
	
   

  	
   

  
	
   

  	
  Adopted by the Board of Directors on 

  March 11, 2004

  
	
   

  	
   

  
	
   

  	
  Approved by the stockholders on 

  April 20, 2004

  
	
   

  	
   

  
	
   

  	
  Amendment and Restatement

  
	
   

  	
   

  
	
   

  	
  Adopted by the Board of Directors on 

  March 28, 2006

  
	
   

  	
   

  
	
   

  	
  Approved by the stockholders on 

  May 3, 2006

  
	
   

  	
   

  
	
   

  	
  Amendment No. 1

  
	
   

  	
   

  
	
   

  	
  Adopted by the Board of Directors on 

  March 30, 2007

  
	
   

  	
   

  
	
   

  	
  Approved by the stockholders on 

  May 2, 2007

  
	
   

  	
   

  
	
   

  	
  Second Amendment and Restatement

  
	
   

  	
   

  
	
   

  	
  Adopted by the Board of Directors on 

  March 31, 2009

  
	
   

  	
   

  
	
   

  	
  Approved by the stockholders on 

  May 8, 2009

  



 


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