Exhibit 10.34


 


AMENDMENT
NO. 1

TO THE

WITNESS SYSTEMS, INC.


 


1              AMENDED AND RESTATED STOCK INCENTIVE PLAN


 


THIS AMENDMENT NO. 1 TO THE WITNESS SYSTEMS, INC.
AMENDED AND RESTATED STOCK INCENTIVE PLAN (this “Amendment”) is made effective as of the 29 day
of May, 2001, by Witness Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware (the “Company”).


 


W I T N E S S E T H :


 


WHEREAS, the Company has previously adopted
and currently maintains the Witness Systems, Inc. Amended and Restated Stock
Incentive Plan (the “Plan”), under which 7,159,325 shares of Common Stock are
reserved for issuance (giving effect to a 1.8-for-1 stock split of the Common
Stock effective December 27, 1999);


 


WHEREAS, the Board of Directors has determined
that it is in the best interest of the Company to amend the Plan to increase
the number of shares of Common Stock reserved for issuance thereunder, subject
to the approval of the Company’s shareholders;


 


NOW, THEREFORE, in consideration of the
premises and mutual promises contained herein, the Plan is hereby amended as
follows:


 


1.             The Plan is hereby amended by
deleting Section 3 of the Plan in its entirety and substituting in lieu thereof
the following:


 


Section 3.


 


2              Shares Subject to Stock Incentives


 


The total number of Shares that may be issued pursuant
to Stock Incentives under this Plan shall not exceed Nine Million One Hundred
Fifty-Nine Thousand Three Hundred and Twenty Five (9,159,325), plus (1) an
annual amount for each calendar year beginning with the calendar year that
begins on January 1, 2002, such that the total number of Shares reserved for
issuance under this Plan will be equal to the sum of (A) the aggregate number
of Shares previously issued under this Plan; (B) the aggregate number of Shares
subject to outstanding options granted under this Plan; and (C) 10% of the aggregate number of Shares
outstanding on the last day of the preceding calendar year, or (2) such lower
amount as may be determined by the Board in its sole discretion; provided,
however, that in no event shall the increase in the number of Shares from one
fiscal year to the next exceed Three Million (3,000,000); all as adjusted
pursuant to Section 11. Such Shares shall be reserved, to the extent that the
Company deems appropriate, from authorized but unissued Shares, and from Shares
which have been reacquired by the Company. Furthermore, any Shares subject to a
Stock Incentive which remain after the cancellation, expiration or exchange of
such Stock Incentive thereafter shall again become available for use under this
Plan, but any Surrendered Shares which remain after the surrender of an ISO or
a non-ISO under Section 8 shall not again become available for use under this
Plan. Notwithstanding anything herein to the contrary, no Participant may be
granted Options or Stock Appreciation Rights covering an aggregate number of
Shares in excess of one million (1,000,000) in any calendar year.


 


2.             This
Amendment is subject to, and shall become effective only upon, approval thereof
by the Company’s stockholders.


 

















 


3.             Capitalized terms not otherwise
defined herein shall have the meaning given them in the Plan.


 


4.             Except as specifically amended by
this Amendment, the Plan shall remain in full force and effect as prior to this
Amendment.


 


IN WITNESS WHEREOF, the Company has caused
this Amendment No. 1 to the Witness Systems, Inc. Amended and Restated Stock
Incentive Plan to be executed as of the day and year first above written.


 


	
   

  	
  WITNESS
  SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  David B.
  Gould

  
	
   

  	
   

  	
  President
  and Chief Executive Officer