**Exhibit 10.34**

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**AMENDMENTNO. 1TO THEWITNESS 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 dayof May, 2001, by Witness Systems, Inc., a corporation organized and existingunder the laws of the State of Delaware (the “Company”).

 

**W I T N E S S E T H :**

 

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

 

**WHEREAS**, the Board of Directors has determinedthat it is in the best interest of the Company to amend the Plan to increasethe number of shares of Common Stock reserved for issuance thereunder, subjectto the approval of the Company’s shareholders;

 

**NOW, THEREFORE,** in consideration of thepremises and mutual promises contained herein, the Plan is hereby amended asfollows:

 

1.             The Plan is hereby amended bydeleting Section 3 of the Plan in its entirety and substituting in lieu thereofthe following:

 

**Section 3.**

 

# **2              Shares Subject to Stock Incentives**

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The total number of Shares that may be issued pursuantto Stock Incentives under this Plan shall not exceed Nine Million One HundredFifty-Nine Thousand Three Hundred and Twenty Five (9,159,325), plus (1) anannual amount for each calendar year beginning with the calendar year thatbegins on January 1, 2002, such that the total number of Shares reserved forissuance under this Plan will be equal to the sum of (A) the aggregate numberof Shares previously issued under this Plan; (B) the aggregate number of Sharessubject to outstanding options granted under this Plan; and (C) 10% of the aggregate number of Sharesoutstanding on the last day of the preceding calendar year, or (2) such loweramount 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 onefiscal year to the next exceed Three Million (3,000,000); all as adjustedpursuant to Section 11. Such Shares shall be reserved, to the extent that theCompany deems appropriate, from authorized but unissued Shares, and from Shareswhich have been reacquired by the Company. Furthermore, any Shares subject to aStock Incentive which remain after the cancellation, expiration or exchange ofsuch Stock Incentive thereafter shall again become available for use under thisPlan, but any Surrendered Shares which remain after the surrender of an ISO ora non-ISO under Section 8 shall not again become available for use under thisPlan. Notwithstanding anything herein to the contrary, no Participant may begranted Options or Stock Appreciation Rights covering an aggregate number ofShares in excess of one million (1,000,000) in any calendar year.

 

2.             ThisAmendment is subject to, and shall become effective only upon, approval thereofby the Company’s stockholders.

 

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

 

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

 

**IN WITNESS WHEREOF**, the Company has causedthis Amendment No. 1 to the Witness Systems, Inc. Amended and Restated StockIncentive 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 |

 

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