**Exhibit 10.1**

 

**AMERICAN SCIENCE AND ENGINEERING, INC.**

 

**AMENDED AND RESTATED**

 

**2005 EQUITY AND INCENTIVE PLAN**

 

**1.**                                      Purposesof the Plan

** **

Thepurposes of the American Science and Engineering, Inc. Amended andRestated 2005 Equity and Incentive Plan (the “Plan”) are (i) toprovide long-term incentives and rewards to those employees, officers,directors, and consultants of American Science and Engineering, Inc. (the “Company”)and its Affiliates (as defined below) who are in a position to contribute tothe long-term success and growth of the Company and its Affiliates, (ii) toassist the Company and its Affiliates in attracting and retaining persons withthe requisite experience and ability, and (iii) to more closely align theinterests of such employees, officers, directors, and consultants with theinterests of the Company’s stockholders.

 

**2.**                                      Definitions

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“Affiliate”means any business entity in which the Company holds, directly or indirectly,an equity, profits, or voting interest of 30% or more, and includes anySubsidiary.

 

“ApplicableLaw” means the applicable requirements relating to the administration of equitycompensation plans under Massachusetts state corporate law, federal and statesecurities laws, the Code, any stock exchange or quotation system on which theCommon Stock is listed or quoted, employment laws, and the applicable laws ofany foreign jurisdiction where Awards are or will be granted.

 

“Award”means any Option, Stock Appreciation Right, Restricted Stock, Restricted StockUnit, Cash Award, or Foreign National Award granted under the Plan. Awards may be granted for services to be rendered or for past services alreadyrendered to the Company or any Affiliate.

 

“CashAward” means an Award granted to a Participant pursuant to Section 10(d) ofthe Plan that is payable in cash, and that may be subject to certain terms,conditions, and restrictions.

 

“Board”means the Board of Directors of the Company.

 

“Code”means the Internal Revenue Code of 1986, as amended from time to time, or anysuccessor law.

 

“Committee”means one or more committees each comprised of not less than two members of theBoard appointed by the Board to administer the Plan or a specified portionthereof.  To the extent that the Board determines its desirable to qualifyAwards granted to Covered Employees under the Plan as “performance-basedcompensation” within the meaning of Section 162(m) of the Code, theneach member of the Committee shall be an “outside director” within the meaningof Section 162(m) of the Code.  To the extent that the Boarddetermines it desirable to qualify Awards granted by the Committee to aReporting Person under the Plan as exempt under Rule 16b-3(d)(1) ofthe Exchange Act, then each member of the Committee shall be a “non-employeedirector” within the meaning of Rule 16b-3.

 

“CommonStock” or “Stock” means the common stock of the Company.

 

“Company”means American Science and Engineering, Inc., or any successorcorporation.

 

“CoveredEmployee” means a “covered employee” within the meaning of Section 162(m) ofthe Code.

 

“DesignatedBeneficiary” means the beneficiary designated by a Participant, in a mannerdetermined by the Committee, to receive amounts due or exercise rights of theParticipant in the event of the Participant’s death.  In the absence of aneffective designation by a Participant, “Designated Beneficiary” means theParticipant’s estate.

 

“Disability”means a total and permanent disability as provided in the long-term disabilityplan or policy maintained by the Company or if applicable, most recentlymaintained, by the Company or if applicable, an Affiliate, for the Participant,whether or not such 

 

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Participantactually receives disability benefits under such plan or policy.  If nolong-term disability plan or policy was ever maintained on behalf of theParticipant or if the determination of disability relates to an Incentive StockOption or SAR issued in tandem with an Incentive Stock Option, Disability meanspermanent and total disability as defined in Section 22(e)(3) of theCode.  In the event of a dispute, the determination whether a Participantis disabled will be made by the Committee and may be supported by the advice ofa physician competent in the area to which such disability relates.

 

“ExchangeAct” means the Securities Exchange Act of 1934, as amended from time to time,or any successor law.

 

“FairMarket Value” means, with respect to Common Stock or any other property, thefair market value of such property as determined by the Committee in good faithor in the manner established by the Committee from time to time.

 

“ForeignNational Award” means an Award granted pursuant to Section 10(f) to aParticipant who is a foreign national or employed or performing servicesoutside of the United States.

 

“GrantDate” means the first date on which all necessary corporate action has beentaken to approve the grant of the Award as provided in the Plan, or such laterdate as is determined and specified as part of that authorizationprocess.  Notice of the grant shall be provided to the Participant withina reasonable time after the grant.

 

“GrantAgreement” means the documentation evidencing an Award as provided in Section 10(b).

 

“IncentiveStock Option” means an Option intended to qualify as an incentive stock optionand which meets the requirements of Section 422 of the Code.

 

“NonstatutoryStock Option” means an Option that is not an Incentive Stock Option.

 

“Option”means a right to acquire shares of Company Stock upon the payment of anexercise price that is granted in accordance with Section 6 of thePlan.  An Option may be either an Incentive Stock Option or a NonstatutoryStock Option.

 

“Participant”means a person selected by the Committee to receive an Award under the Plan.

 

“PerformanceGoals” means with respect to any Performance Period, one or more performancegoals based on one or more of the following objective criteria established bythe Committee prior to the beginning of such Performance Period or within suchperiod after the beginning of the Performance Period as shall meet the requirementsto be considered “pre-established objective performance goals” for purposes ofthe regulations issued under Section 162(m) of the Code: (i) increasesin the price of the Common Stock, (ii) market share, (iii) sales, (iv) revenue,(v) return on equity, assets, or capital, (vi) economic profit(economic value added), (vii) total shareholder return, (viii) costs,(ix) expenses, (x) margins, (xi) earnings (including EBITDA) orearnings per share, (xii) cash flow (including adjusted operating cash flow),(xiii) customer satisfaction, (xiv) operating profit, (xv) net income, (xvi)research and development, (xvii) product releases, (xviii) manufacturing, or(xix) any combination of the foregoing, including without limitation, goalsbased on any of such measures relative to appropriate peer groups or marketindices.  Such Performance Goals may be particular to a Participant or maybe based, in whole or in part, on the performance of the division, department,line of business, subsidiary, or other business unit, whether or not legallyconstituted, in which the Participant works or on the performance of theCompany generally.

 

“PerformancePeriod” means the period of service designated by the Committee applicable toan Award subject to Section 10(l) during which the Performance Goals willbe measured.

 

“ReportingPerson” means a person subject to Section 16 of the Exchange Act.

 

“RestrictedStock” means shares of Common Stock granted to a Participant pursuant to Section 8of the Plan that may be subject to certain terms, conditions, and restrictions.

 

“RestrictedStock Unit” means the right granted to a Participant pursuant to  Section 9of the Plan to receive shares of Common Stock (or the equivalent value in cashor other property if the Committee so provides) in the future that may besubject to certain terms, conditions, and restrictions.

 

“ServiceProvider” means an employee, officer, director or consultant of the Company orany of its Affiliates.

 

“StockAppreciation Right” or “SAR” means a right to acquire cash or shares of CommonStock granted in accordance with Section 7 of the Plan having a valueequal to the difference between the Fair Market Value on the date of exerciseover the exercise price set forth in the Grant Agreement multiplied by thenumber of shares of Common Stock with respect to which the SAR is beingexercised.

 

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“Subsidiary”means any subsidiary corporation as defined in Section 424(f) of theCode.

 

“TerminationDate” means (i) in the case of an employee, the date that the Committeedetermines that the employee-employer relationship between the Company orAffiliate and such person ceased for any reason, (ii) in the case of aconsultant or non-employee officer, the date that the Committee determines thatthe service relationship between the Company or Affiliate and such personceased for any reason, and (iii) in the case of a director, the date thatthe Committee determines that such person’s service on the Board ceased for anyreason.

 

**3.**             Administration

** **

ThePlan shall be administered by the Committee.  Subject to and consistentwith the provisions of the Plan, the Committee shall have the authority anddiscretion to: (i) determine which eligible employees, officers,directors, and consultants will receive Awards, (ii) determine the numberof shares of Common Stock, cash, or other consideration to be covered by eachAward, (iii) determine the terms and conditions of any Award (includingFair Market Value, the exercise price, the vesting schedule, the term of theAward, and the period following termination from employment or service duringwhich an Award may be exercised), (iv) approve forms of Award agreementsand other documentation for use under the Plan, (v) adopt, alter, andrepeal administrative rules, guidelines, and practices governing the operationof the Plan and the Committee, (vi) interpret the provisions of the Planand any Award documentation and remedy any ambiguities, omissions, orinconsistencies therein, (vii) to modify or amend Awards, or grant waiversof Plan or Award conditions, and (viii) make all other determinationsnecessary or advisable for the administration of the Plan.  A majority ofthe members of the Committee shall constitute a quorum.  The Committee’sdecisions, determinations, and interpretations shall be final and binding onall persons having an interest in any Award.  To the extent permitted byApplicable Law, the Committee may delegate to one or more executive officers ofthe Company the power to make Awards to Participants who are not ReportingPersons and all determinations under the Plan with respect thereto, providedthat the Committee shall fix the maximum amount of such Awards for all suchParticipants and a maximum for any one Participant, and such other features ofthe Awards as required by Applicable Law.

 

**4.**             Eligibility

** **

IncentiveStock Options may be granted only to employees (including officers anddirectors who are also employees) of the Company or a Subsidiary.  Allother Awards may be granted to employees, officers, directors, and consultantsof the Company or any Affiliate.

 

**5.**             StockAvailable for Awards

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**(a)****          ****Amount**.  Subject to adjustment under Section 5(c),the aggregate number of shares of Common Stock that may be issued pursuant toAwards granted under the Plan shall be 1,000,000 shares.  Subject toadjustment under Section 5(c), up to 1,000,000 shares of Common Stock maybe issued upon exercise of Incentive Stock Options granted under thePlan.  Shares issued under the Plan may consist in whole or in part ofauthorized but unissued shares, or treasury shares, or shares purchased on theopen market.  At all times the Company will reserve and keep available asufficient number of shares to satisfy the number of shares available for issuanceunder the Plan.

 

**(b)****          ****Share Counting**.  If an Award granted under thePlan is canceled, terminates, expires, is forfeited, lapses, or is settled incash, then the shares subject to such Award (to the extent of suchcancellation, termination, expiration, forfeiture, lapse, or settlement) shallagain be available for issuance pursuant to Awards granted under thePlan.  For purposes of Section 5(a), any shares granted as Options orStock Appreciation Rights under the Plan shall be counted against this limit asone share for every share subject to the Award.  Any shares granted asAwards other than Options or Stock Appreciation Rights shall be counted againstthe limit set forth in Section 5(a) as 1.5 shares for every one sharesubject to the Award.  Any shares tendered in payment of an Option’sexercise price (whether by attestation or actual delivery), any shares tenderedor withheld to satisfy a tax withholding on an Award, and any sharesrepurchased by the Company using Option proceeds shall not be added back, replenish,or increase the aggregate Plan share limit set forth in Section 5(a).

 

**(c)****          ****Adjustment**.  In the event that the Committeedetermines that any stock dividend, extraordinary cash dividend,recapitalization, reorganization, merger, consolidation, split-up, spin-off,combination, exchange of shares, or other transaction affects the Common Stocksuch that an adjustment is required in order to preserve the benefits intendedto be provided by the Plan, then the Committee (subject in the case ofIncentive Stock Options to any limitation required under the Code) shallequitably adjust any or all of (i) the number and class of shares that may beissued in respect of Awards under the Plan, (ii) the number and class ofshares subject to outstanding Awards, (iii) the number and class of sharessubject to the limit on individual grants under Section 5(d) of thePlan, and (iv) the exercise price with respect to any of the foregoing,and if considered appropriate, the Committee may make provision for a cashpayment with respect to an outstanding Award, provided that the number ofshares subject to any Award shall always be a whole number.

 

**(d)****          ****Limit on Individual Grants**.  The maximum number of shares ofCommon Stock subject to all Awards that may be granted under this Plan to anyParticipant in the aggregate in any fiscal year of the Company shall not exceed250,000 shares, subject to 

 

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adjustment under Section 5(b). Notwithstanding the foregoing, during the fiscal year in which a Participantfirst becomes an employee of the Company or an Affiliate, the Participant maybe granted Awards covering an additional 250,000 shares of Common Stock,subject to adjustment under Section 5(b).  With respect to any Awardsettled in cash that is intended to satisfy the requirements for “performance-basedcompensation” (within the meaning of Section 162(m)(4)(C) of theCode), no more than $2,500,000 may be paid to any one individual with respectto each year of a Performance Period.

 

**6.**             StockOptions

** **

**(a)****          ****Grant of Options**.  Subject to the provisions of thePlan, the Committee may grant Incentive Stock Options or Nonstatutory StockOptions to a Participant.

 

**(b)****          ****Terms and Conditions**. The Committee shall determine thenumber of shares of Common Stock subject to each Option and the exercise pricetherefor, which shall not be less than 100% of the Fair Market Value of theCommon Stock on the Grant Date.  Each Option shall be exercisable at suchtimes and subject to such terms and conditions as the Committee may specify inthe Grant Agreement or thereafter; provided that (i) no Option shall beexercisable after the expiration of ten years from the Option’s Grant Date, and(ii) no Option may be granted with a reload feature which provides for anautomatic grant of additional or replacement options upon the exercise of anOption.

 

AParticipant may exercise an Option by following such procedures as theCommittee or its designees may specify from time to time. The Committee mayimpose such conditions with respect to the exercise of Options, includingconditions relating to Applicable Laws, as it considers necessary or advisable.

 

**(c)****          ****Payment**.  No shares shall be deliveredpursuant to any exercise of an Option until payment in full of the exercise pricetherefor is received by the Company.  Except as otherwise provided by theCommittee, such payment may be made in whole or in part in or pursuant to anyof the following methods:  (i) cash, (ii) by actual delivery orattestation of ownership of shares of Common Stock owned by the Participant,including vested Restricted Stock, (iii) by retaining shares of CommonStock otherwise issuable pursuant to the Option, (iv) for considerationreceived by the Company under a broker-assisted cashless exercise programacceptable to the Company, or (v) for such other lawful consideration asthe Committee may determine.

 

**(d)****          ****Exercise Period**.  When a Participant’s status as aService Provider terminates, the Participant’s Option may be exercised withinthe period of time specified in the Grant Agreement to the extent that theOption is vested on the Participant’s Termination Date.  In the absence ofa specific period of time set forth in the Grant Agreement, an Option shallremain exercisable for three (3) months following the date the Participantceases to be a Service Provider, but in no event shall the Option beexercisable after the expiration of the term of such Option.  If aParticipant’s status as a Service Provider terminates from death or Disabilityor the Participant dies within three (3) months after his TerminationDate, then (unless provided otherwise in the Grant Agreement) the Option shallremain exercisable for twelve (12) months following the date the Participantceases to be a Service Provider, but in no event shall the Option beexercisable after the expiration of the term of such Option.  In no eventmay the Committee provide in a Grant Agreement that the period of time forexercising an Option following a Participant’s Termination Date shall exceedthree (3) years.

 

**(e)****          ****Incentive Stock Option Rules**.  In addition to the limitationsand conditions that apply generally to Options, the following provisions shallapply to any Incentive Stock Option.  The Committee may grant IncentiveStock Options only to persons who are employees of the Company or a Subsidiaryas of the Grant Date.  The aggregate Fair Market Value (determined as ofthe Grant Date) of all shares with respect to which Incentive Stock Options areexercisable for the first time by a Participant during any calendar year (underthe Plan or any other incentive stock option plan of the Company or anySubsidiary) shall not exceed $100,000.  If the Fair Market Value of shareson the Grant Date with respect to which Incentive Stock Options are exercisablefor the first time by a Participant during any calendar year exceeds $100,000,the Options for the first $100,000 worth of shares to become exercisable inthat calendar year will be Incentive Stock Options, and the Options for theshares with a Fair Market Value in excess of $100,000 that become exercisablein that calendar year will be Nonstatutory Stock Options.  No IncentiveStock Option shall be granted to any individual who, at the Grant Date, ownsstock possessing more than ten percent (10%) of the total combined voting powerof all classes of stock of the Company or any Subsidiary unless the exerciseprice per share of such Option is at least 110% of the Fair Market Value pershare at the Grant Date and the Option expires no later than five (5) yearsafter the Grant Date.  If a Participant sells or otherwise disposes of anyshares acquired pursuant to the exercise of an Incentive Stock Option on orbefore the later of (i) the date two (2) years after the Grant Date,and (ii) the date one year after the exercise of the Incentive StockOption, the Company may require the Participant to immediately notify theCompany in writing of such disposition.

 

**7.**             StockAppreciation Rights

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**(a)           Grantof SARs**. Subject to the provisions of the Plan, the Committee may grant SARs to aParticipant in tandem with an Option (at or after the award of the Option), oralone and unrelated to an Option.  SARs granted in tandem with an Optionshall 

 

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terminate to the extent that the related Option isexercised, and the related Option shall terminate to the extent that the tandemSARs are exercised.

 

**(b)****          ****Terms and Conditions**.  The Committee shall determine thenumber of shares of Common Stock subject to each SAR and the exercise pricetherefore.  A SAR granted in tandem with an Option shall have an exerciseprice not less than the exercise price of the related Option.  A SARgranted alone and unrelated to an Option may not have an exercise price lessthan 100% of the Fair Market Value of the Common Stock on of the GrantDate.  Each SAR shall be exercisable at such times and subject to suchterms and conditions as the Committee may specify in the Grant Agreement orthereafter; provided that no SAR shall be exercisable after the expiration often years from the SAR’s Grant Date.  A Participant may exercise a SAR byfollowing such procedures as the Committee or its designees may specify fromtime to time.  The Committee may impose such conditions with respect tothe exercise of SARs, including conditions relating to Applicable Laws, as itconsiders necessary or advisable.

 

**(c)           ExercisePeriod**. When a Participant’s status as a Service Provider terminates, the Participant’sSAR may be exercised within the period of time specified in the Grant Agreementto the extent that the SAR is vested on the Participant’s TerminationDate.  In the absence of a specific period of time set forth in the GrantAgreement, a SAR shall remain exercisable for three (3) months followingthe date the Participant ceases to be a Service Provider, but in no event shallthe SAR be exercisable after the expiration of the term of such SAR.  If aParticipant’s status as a Service Provider terminates from death or Disabilityor the Participant dies within three (3) months after his TerminationDate, then (unless provided otherwise in the Grant Agreement) the SAR shallremain exercisable for twelve (12) months following the date the Participantceases to be a Service Provider, but in no event shall the SAR be exercisable afterthe expiration of the term of such SAR.  In no event may the Committeeprovide in the Grant Agreement that the period of time for exercising a SARfollowing a Participant’s Termination Date shall exceed three (3) years.

 

**8.             Restricted Stock**

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**(a)           Grantof Restricted Stock**. Subject to the provisions of the Plan, the Committee may grant Restricted Stockto a Participant.

 

**(b)           Termsand Conditions**. The Committee shall determine the number of shares of Common Stock subject toeach Restricted Stock Award and the purchase price (if any) for eachshare.  Shares of Restricted Stock may be issued for no cashconsideration, or such minimum consideration as may be required by ApplicableLaw.  The Committee may grant shares of Common Stock subject to such otherterms, conditions, and restrictions (including forfeiture provisions andconditions relating to Applicable Laws) as it considers necessary or advisable.

 

**(c)           Restrictions**.  Shares of Restricted Stock may not be sold,assigned, transferred, pledged or otherwise encumbered, except as permitted bythe Committee, during the restricted period.  Shares of Restricted Stockshall be evidenced in such manner as the Committee may determine, includingbook-entry registration.  Any physical certificates issued in respect ofshares of Restricted Stock shall be registered in the name of the Participantbearing an appropriate legend referring to the terms, conditions, andrestrictions applicable to such Restricted Stock and unless otherwisedetermined by the Committee, deposited by the Participant, together with astock power endorsed in blank, with the Company or a designated custodian orescrow agent.  At the expiration of the restricted period, the Companyshall deliver any such certificates to the Participant or if the Participanthas died, to the Participant’s Designated Beneficiary.

 

**9.             Restricted Stock Units**

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**(a)           RestrictedStock Units**. Subject to the provisions of the Plan, the Committee may grant Restricted StockUnits to a Participant.

 

**(b)           Termsand Conditions**. The Committee shall determine the number of shares of Common Stock subject toeach Restricted Stock Unit Award and the purchase price (if any) for eachunit.  Restricted Stock Units may be issued for no cash consideration, orsuch minimum consideration as may be required by Applicable Law.  TheCommittee may grant Restricted Stock Units subject to such other terms,conditions, and restrictions (including forfeiture provisions and conditionsrelating to Applicable Laws) as it considers necessary or advisable.

 

**(c)           UnfundedObligation**. A Restricted Stock Unit Award shall constitute an unfunded and unsecuredobligation of the Company, and shall be settled in shares of Common Stock orcash, as determined by the Committee at the time of grant or thereafter. Each unit shall represent the equivalent of one share of Common Stock.

 

**10.          General Provisions Applicable toAwards**

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**(a)           Transferability**.  Except as otherwise provided inthis Section 10(a), an Award (i) shall not be transferable other thanas designated by the Participant by will or by the laws of descent anddistribution, and (ii) may be exercised during the Participant’s 

 

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lifetime only by the Participant or by the Participant’sguardian or legal representative.  In the discretion of the Committee, anyAward may be transferable upon such terms and conditions and to such extent asthe Committee determines at or after grant, provided that Incentive StockOptions may be transferable only to the extent permitted by the Code.

 

**(b)           GrantAgreement**. Each Award under the Plan shall be evidenced by a written or electronic grantagreement delivered to the Participant specifying the terms and conditionsthereof and containing such other terms and conditions not inconsistent withthe provisions of the Plan or Applicable Laws as the Committee considersnecessary or advisable to achieve the purposes of the Plan.

 

**(c)           CommitteeDiscretion**. Each type of Award may be made alone, in addition to or in relation to anyother Award.  The terms of each type of Award need not be identical, andthe Committee need not treat Participants uniformly.  In addition to theauthority granted to the Committee in Section 10(l) to make Awards toCovered Employees which qualify as “performance-based compensation” forpurposes of Section 162(m) of the Code, the Company may grant Awardssubject to such performance conditions (including performance-based vesting) asit shall determine in its discretion.  Except as otherwise provided by thePlan or a particular Award, any determination with respect to an Award may bemade by the Committee at the time of grant or at any time thereafter.

 

**(d)           Dividendsand Cash Awards**. In the discretion of the Committee, any Award under the Plan may provide theParticipant with dividends or dividend equivalents payable currently ordeferred, with or without interest.  The Committee may also make cashpayments under the Plan in lieu of or in addition to an Award.  Such CashAwards may be made subject to such terms, conditions, and restrictions as theCommittee considers necessary or advisable.

 

**(e)           Terminationof Employment or Service**.  Whether military service, government service, or other leave ofabsence shall constitute a termination of employment or service, and whetherthe vesting of an Award shall cease, be suspended, or continue duringsuch  leave of absence, shall be determined in each case by the Committeein its direction.  Except as otherwise provided by the Committee, aParticipant’s employment or service shall not be deemed to terminate upon thetransfer of employment or service between the Company and an Affiliate. Except as otherwise provided by the Committee, a Participant’s employment orservice shall be deemed to terminate, and further vesting of any Award shallcease, in the case of any sale, spin-off, or other disposition of theParticipant’s employer or substantially all of its assets.  To the extentthat this Section 10(e) or action by the Committee results in anIncentive Stock Option being exercised beyond the date that a Participant isdeemed to be an employee of the Company or a Subsidiary for purposes of Section 424of the Code, the Option shall be deemed to be a Nonstatutory Stock Option.

 

**(f)            Changein Control**. In order to preserve a Participant’s rights under an Award in the event of achange in control of the Company as defined by the Committee (a “Change inControl”), the Committee in its discretion may, at the time an Award is made orat any time thereafter, take one or more of the following actions: (i) providefor the acceleration of any time period relating to the exercise or payment ofthe Award, (ii) provide for payment to the Participant of cash or otherproperty with a Fair Market Value equal to the amount that would have beenreceived upon the exercise or payment of the Award had the Award been exercisedor paid upon the Change in Control, (iii) adjust the terms of the Award ina manner determined by the Committee to reflect the Change in Control, (iv) causethe Award to be assumed, or new rights substituted therefor, by another entity,or (v) make such other provision as the Committee may consider equitableto Participants and in the best interests of the Company.

 

**(g)           Loans**.  The Committee may not authorizethe making of loans to Participants in connection with the grant or exercise ofany Award under the Plan.

 

**(h)           WithholdingTaxes**.  AParticipant shall pay to the Company, or make provision satisfactory to theCommittee for payment of, any taxes required by law to be withheld in respectof Awards under the Plan no later than the date of the event creating the taxliability.  In the Committee’s discretion, such tax obligations may bepaid in whole or in part in shares of Common Stock, including shares retainedfrom the Award creating the tax obligation, valued at their Fair Market Valueon the date of delivery.  The Company and its Affiliates may, to theextent permitted by Applicable Law, deduct any such tax obligations from anypayment of any kind otherwise due to the Participant.

 

**(i)            ForeignNational Awards**. Notwithstanding anything to the contrary contained in this Plan, ForeignNational Awards may be made to Participants on such terms and conditionsdifferent from those specified in the Plan as the Committee considers necessaryor advisable to achieve the purposes of the Plan or to comply with ApplicableLaw.

 

**(j)            Amendmentof Award**. Except as provided in Section 10(k), the Committee may amend, modify, orterminate any outstanding Award, including substituting therefor another Awardof the same or a different type, changing the date of exercise or realizationand converting an Incentive Stock Option to a Nonstatutory Stock Option,provided that the Participant’s consent to such action shall be required unless(i) the Committee determines that the action, taking into account anyrelated action, would not materially and adversely affect the Participant, or (ii) theaction is permitted by the terms of the Plan.

 

**(k)           NoRepricing of Options**. Notwithstanding anything to the contrary in the Plan, the Company shall notengage in any repricing of Options or SARs granted under this Plan withoutfurther stockholder approval.  For this purpose, the term “repricing” 

 

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shall mean any of the following or other action thathas the same effect:  (i) lowering the exercise price of an Option ora SAR after it is granted, (ii) any other action that is treated as arepricing under generally accepted accounting principles, or (iii) cancelingan Option or a SAR at a time when its exercise price exceeds the fair marketvalue of the underlying stock in exchange for another Option, SAR, RestrictedStock, or other equity of the Company, unless the cancellation and exchangeoccurs in connection with a merger, acquisition, spin-off, or similar corporatetransaction (including any adjustment described in Section 5(c)).

 

**(l)            Code Section 162(m) Provisions**.  If the Committee determines at the timean Award is granted to a Participant that such Participant is, or may be as ofthe end of the tax year for which the Company would claim a tax deduction inconnection with such Award, a Covered Employee, then the Committee may providethat the Participant’s right to receive cash, shares, or other propertypursuant to such Award shall be subject to the satisfaction of PerformanceGoals during a Performance Period.  Prior to the payment of any Awardsubject to this Section 10(l), the Committee shall certify in writing thatthe Performance Goals and other material terms applicable to such Award weresatisfied.  Notwithstanding the attainment of Performance Goals by aCovered Employee, the Committee shall have the right to reduce (but not toincrease) the amount payable at a given level of performance to take intoaccount additional factors that the Committee may deem relevant.  TheCommittee shall have the power to impose such other restrictions on Awardssubject to this Section 10(l) as it may deem necessary or appropriateto ensure that such Awards satisfy all requirements for “performance-basedcompensation” within the meaning of Section 162(m) of the Code.

 

**(m)          MinimumVesting Requirements**. Each Award granted under the Plan shall vest in accordance with aschedule that does not permit such Award to vest in full prior to the thirdanniversary of the Grant Date of the Award.  This minimum vestingrequirements shall not, however, preclude the Committee from exercising itsdiscretion to (i) accelerate the vesting of any Award upon retirement,termination of employment by the Company, death or Disability, (ii) acceleratethe vesting of any Award in accordance with Section 10(f), (iii) establisha shorter vesting schedule for any Award granted to a consultant,director, or newly-hired employee, (iv) establish a shorter vestingschedule for any Award that is granted in exchange for or in lieu of theright to receive the payment of an equivalent amount of salary, bonus, or othercash compensation, (v) establish a shorter performance-based vestingschedule in accordance with Section 10(c) or Section 10(l) (butin each case of not less than one year), or (vi) vest up to 1,000 sharesper year for each Participant.

 

**(n)           LimitationFollowing a Hardship Distribution**.  To the extent required to comply with TreasuryRegulation Section 1.401(k)-1(d)(2)(iv)(B)(4), or any amendment orsuccessor thereto, a Participant’s “elective and employee contributions”(within the meaning of such Treasury Regulation) under the Plan shall besuspended for a period of twelve months following such Participant’s receipt ofa hardship distribution made in reliance on such Treasury Regulation from anyplan containing a cash or deferred arrangement under Section 401(k) ofthe Code maintained by the Company or a related party within the provisions of Section 414of the Code.

 

**11.          Miscellaneous**

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**(a)           NoRight To Employment**. No person shall have any claim or right to be granted an Award.  Neitherthe Plan nor any Award hereunder shall be deemed to give any employee the rightto continued employment or service or to limit the right of the Company todischarge any Participant at any time.

 

**(b)           NoRights As Stockholder**.  Subject to the provisions of the applicable Award, noParticipant or Designated Beneficiary shall have any rights as a stockholderwith respect to any shares of Common Stock to be distributed under the Planuntil he or she becomes the holder thereof.  A Participant to whom CommonStock is awarded shall be considered the holder of the Stock at the time of theAward except as otherwise provided in the Grant Agreement.

 

**(c)           EffectiveDate**. Subject to the approval of the stockholders of the Company, the Planshall be effective on September 11, 2008.

 

**(d)           Amendmentand Term of Plan**. The Board may amend, suspend, or terminate the Plan or any portion thereof atany time, subject to such stockholder approval as the Board determines to benecessary or advisable to comply with any tax or regulatory requirement,provided, however, that the Board may not without stockholder approvalmaterially amend the Plan (within the meaning of applicable exchange listingrequirements) to materially increase the number of shares of Common Stock thatmay be issued under the Plan, materially increase benefits to Participants,materially expand the class of Participants eligible to participate in thePlan, or expand the types of Awards provided under the Plan.  Unlessterminated earlier by the Board, or extended by subsequent approval of theCompany’s stockholders, the term of the Plan shall expire on September 15,2015, and no further Awards shall be made thereafter.  The termination ofthe Plan on such date shall not affect the validity of any Award outstanding onthe date of termination.

 

**(e)           GoverningLaw**.  Theprovisions of the Plan shall be governed by and interpreted in accordance withthe laws of Massachusetts.

 

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**(f)            Indemnification**.  Neither the Board nor theCommittee, nor any members of either, nor any employees or officers of theCompany or any Affiliate, shall be liable for any act, omission,interpretation, construction, or determination made in good faith in connectionwith their responsibilities under the Plan, and the Company hereby agrees toindemnify the members of the Board, the members of the Committee, and theemployees and officers of the Company or any Affiliate administering the Plan,in respect of any claim, loss, damage, or expense (including reasonable fees oflegal counsel) arising from any such act, omission, interpretation,construction, or determination to the fullest extent permitted by ApplicableLaw.

 

*ThisAmended and Restated 2005 Equity Incentive Plan was approved by the Company’sBoard of Directors on July 24, 2008 and by the Company’s stockholders on September 11,2008.*

 

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