exv10w1



 





Exhibit 10.1




3AM
LABS, INC. 2004, AS AMENDED




EQUITY INCENTIVE PLAN




1. Purpose




     This Plan is intended to encourage ownership of Common Stock by employees, consultants and
directors of the Company and its Affiliates and to provide additional incentive for them to promote
the success of the Company’s business. The Plan is intended to be an incentive stock option plan
within the meaning of Section 422 of the Code but not all Awards granted hereunder are required to
be Incentive Options.



2. Definitions




     As used in the Plan the following terms shall have the respective meanings set out below,
unless the context clearly requires otherwise:



     2.1 Accelerate, Accelerated, and Acceleration, when used with
respect to an Option, means that as of the time of reference each Option will become exercisable
with respect to some or all of the shares of Common Stock for which it was not then otherwise
exercisable by its terms, and, when used with respect to Restricted Stock, means that the Risk of
Forfeiture -otherwise applicable to such Common Stock shall expire with respect to some or all of
the shares of Restricted Stock then still otherwise subject to the Risk of Forfeiture.



     2.2 Acquiring Person means, with respect to any Transaction or any acquisition
described in clause (ii) of the definition of Change of Control, the surviving or acquiring person
or entity in connection with such Transaction or acquisition, as the case may be, provided that if
such surviving or acquiring person or entity is controlled, directly or indirectly, by any other
person or entity (an “Ultimate Parent Entity”) that is not itself
controlled by any entity or person that is not a natural person, the term “Acquiring
Person” shall mean such Ultimate Parent Entity.



     2.3 Affiliate means, with respect to any person or entity, any other person or entity
controlling, controlled by or under common control with the first person or entity.



     2.4 Applicable Voting Control Percentage means (i) at any time
prior to the initial public offering of the Company, a percentage greater than fifty percent (50%)
and (ii) at any time from and after the initial public offering of the Company, twenty percent
(20%).



     2.5 Award means any grant or sale pursuant to the Plan of Options, Restricted Stock,
or Stock Grants.



     2.6 Award Agreement means an agreement between the Company and the recipient
of an Award, setting forth the terms and conditions of the Award.



 









 





     2.7 Beneficial Ownership has the meaning ascribed to such term in Rule 13d-3,
or any successor rule thereto, promulgated by the Securities and Exchange Commission pursuant to
the Exchange Act.



     2.8 Board means the Company’s Board of Directors.



     2.9 Change of Control means (i) the closing of any Sale of the Company
Transaction or (ii) the direct or indirect acquisition, in a single transaction or a series of
related transactions, by any person or Group (other than the Company or a Controlled Affiliate of
the Company) of Beneficial Ownership of previously outstanding shares of capital stock of the
Company if (A) immediately after such acquisition, such person or Group, together with their
respective Affiliates, shall own or hold shares of capital stock of the Company possessing at least
the Applicable Voting Control Percentage of the total voting power of the outstanding capital stock
of the Company, (B) immediately prior to such acquisition, such person or Group, together with
their respective Affiliates, did not own or hold shares of capital stock of the Company possessing
at least the Applicable Voting Control Percentage of the total voting power of the outstanding
capital stock of the Company, and (C) within thirty days after the Company is notified or first
becomes aware of such acquisition, whichever is earlier, a majority of the members of the Board of
Directors of the Company as constituted immediately prior to such acquisition do not consent in
writing to exclude such acquisition from the scope of this definition.



     2.10 Code means the Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto, and any regulations issued from time to time thereunder.



     2.11 Controlled Affiliate means, with respect to any person or entity, any
other person or entity that is controlled by such person or entity.



     2.12 Committee means any committee of the Board delegated responsibility by the Board
for the administration of the Plan, as provided in Section 5 of the Plan. For any period during
which no such committee is in existence, “Committee” shall mean the Board and all authority and
responsibility assigned the Committee under the Plan shall be exercised, if at all, by the Board.



     2.13 Common Stock means common stock, par value $0.01 per share, of the
Company.



     2.14 Company means 3am Labs, Inc., a corporation organized under the laws of the State
of Delaware.



     2.15 Grant Date means the date as of which an Option is granted, as determined
under Section 7.1 (a).



     2.16 Group has the meaning ascribed to such term in Section 13{d)(3) of the Exchange
Act or any successor section thereto.



     2.17 Incentive Option means an Option which by its terms is to be treated as
an “incentive stock option” within the meaning of Section 422 of the Code.



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     2.18 Market Value means the value of a share of Common Stock on any date as
determined by the Committee.



     2.19 Merger Price has the meaning set forth in Section 8.2 hereof.



     2.20 Nonstatutory Option means any Option that is not an Incentive Option.



     2.21 Option means an option to purchase shares of Common Stock.



     2.22 Optionee means a Participant to whom an Option shall have been granted under the
Plan.



     2.23 Participant means any holder of an outstanding Award under the Plan.



     2.24 Plan means this 2004 Equity Incentive Plan of the Company, as amended and in
effect from time to time.



     2.25 Restricted Stock means a grant or sale of shares of Common Stock to a
Participant subject to a Risk of Forfeiture.



     2.26 Restriction Period means the period of time, established by the Committee
in connection with an Award of Restricted Stock, during which the shares of Restricted Stock are
subject to a Risk of Forfeiture described in the applicable Award Agreement.



     2.27 Risk of Forfeiture means a limitation on the right of a
Participant to retain an Award of Restricted Stock, including a right in the Company to reacquire
such Restricted Stock at less than their then Market Value, arising because of the occurrence or
non-occurrence of specified events or conditions.



     2.28 Sale of the Company Transaction means any
Transaction in which the stockholders of the Company immediately prior to such Transaction,
together with any and all of such stockholders’ Affiliates, do not own or hold, immediately after
consummation of such Transaction, shares of capital stock of the Acquiring Person in connection
with such Transaction possessing at least a majority of the total voting power of the outstanding
capital stock of such Acquiring Person.



     2.29 Securities Act means the Securities Act of 1933, as amended.



     2.30 Stock Grant means the grant of shares of Common Stock not subject to
restrictions or other forfeiture conditions.



     2.31 Stockholder Agreement means one agreement, or, collectively, two or more
agreements, by and between the Company and one or more stockholders of the Company setting forth,
among other provisions, (i) restrictions upon the right of such stockholder or stockholders to
transfer shares of capital stock of the Company owned or held by such stockholder or stockholders
or (ii) restrictions on the exercise by such stockholder or stockholders of rights appurtenant to
any shares of capital stock of the Company owned or held by such stockholder or stockholders
(including, but not limited to, restrictions on voting rights).



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     2.32 Ten Percent Owner means a person who owns, or is deemed within
the meaning of Section 422(b)(6) of the Code to own, stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company (or any parent or subsidiary
corporations of the Company, as defined in Section 424(e) and (f), respectively, of the Code).
Whether a person is a Ten Percent Owner shall be determined with respect to each Option based on
the facts existing immediately prior to the Grant Date of such Option.



     2.33 Transaction means any merger or consolidation of the Company with or into another
person or entity or the sale or transfer of all or substantially all of the assets of the Company,
in each case in a single transaction or in. a series of related transactions.



3. Term of the Plan




     Unless the Plan shall have been earlier terminated by the Board, Awards may be granted, under
this Plan at any time in the period commencing on the effective date of approval of the Plan by the
Board and ending immediately prior to the tenth (10th) anniversary of the earlier of the
adoption of the Plan by the Board or approval of the Plan by the Company’s stockholders. Awards
granted pursuant to the Plan within such period shall not expire solely by reason of the
termination of the Plan. Awards of Incentive Options granted prior to stockholder approval of the
Plan are hereby expressly conditioned upon such approval, but in the event of the failure of the
stockholders to approve the Plan shall thereafter and for all purposes be deemed to constitute
Nonstatutory Options.



4. Stock Subject to the Plan




     At no time shall the number of shares of Common Stock issued pursuant to or subject to
outstanding Awards granted under the Plan exceed 5,569,875 shares of Common Stock;
subject, however, to the provisions of Section 8 of the Plan. For purposes of applying the
foregoing limitation, if any Option expires, terminates, or is cancelled for any reason without
having been exercised in full, or if any Award of Restricted Stock is forfeited by the recipient,
the shares not purchased by the Optionee or forfeited by the recipient shall again be available for
Awards thereafter to be granted under the Plan. Shares of Common Stock issued pursuant to the Plan
may be either authorized but unissued shares or shares held by the Company in its treasury.



5. Administration




     The Plan shall be administered by the Committee; provided, however, that at any time and on
any one or more occasions the Board may itself exercise any of the powers and responsibilities
assigned the Committee under the Plan and when so acting shall have the benefit of all of the
provisions of the Plan pertaining to the Committee’s exercise of its authorities hereunder; and
provided further that the Committee may delegate to an executive officer or officers the authority
to grant Awards hereunder to employees who are not officers, and to consultants, in accordance with
such guidelines as the Committee shall set forth at any time or from time to time. Subject to the
provisions of the Plan, the Committee shall have complete authority, in its discretion, to make or
to select the manner of making all determinations with respect to each Award to be granted by the
Company under the Plan in addition to any other determination allowed the Committee under the Plan
including, without limitation; (a) the



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employee, consultant or director to receive the Award; (b) the form of Award; (c) whether an
Option (if granted to an employee) will be an Incentive Option or a Nonstatutory Option; (d) the
time of granting an Award; (e) the number of shares subject to an Award; (f) the exercise price of
an Option or purchase price for shares of Restricted Stock or for a Stock Grant and the method of
payment of such exercise price or such purchase price; (g) the term of an Option; (h) the vesting
period of shares of Restricted Stock and any acceleration thereof; (i) the exercise date or dates
of an Option and any acceleration thereof; and (j) the effect of termination of any employment,
consulting or Board member relationship with the Company or any of its Affiliates on the subsequent
exercisability of an Option or on the Risk of Forfeiture of Restricted Stock. In making such
determinations, the Committee may take into account the nature of the services rendered by the
respective employees, consultants and directors, their present and potential contributions to the
success of the Company and its Affiliates, and such other factors as the Committee in its
discretion shall deem relevant, Subject to the provisions of the Plan, the Committee shall also
have complete authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, to determine the terms and provisions of the respective Award
Agreements (which need not be identical), and to make all other determinations necessary or
advisable for the administration of the Plan. The Committee’s determinations made in good faith
on matters referred to in this Plan shall be final, binding and conclusive on all persons having or
claiming any interest under the Plan or an Award made pursuant to hereto.



6. Authorization and Eligibility




     The Committee may grant from time to time and at any time prior to the termination of the Plan
one or more Awards, either alone or in combination with any other Awards, to any employee of or
consultant to one or more of the Company and its Affiliates or to any non-employee member of the
Board or of any board of directors (or similar governing authority) of any Affiliate. However,
only employees of the Company, and of any parent or subsidiary corporations of the Company, as
defined in Sections 424(e) and (f), respectively, of the Code, shall be eligible for the grant of
an Incentive Option. Further, in no event shall the number of shares of Common Stock covered by
Options or other Awards granted to any one person in any one calendar year (or portion of a year)
ending after such date exceed 25% of the aggregate number of shares of Common Stock subject to the
Plan.



     Each grant of an Award shall be subject to all applicable terms and conditions of the Plan
(including but not limited to any specific terms and conditions applicable to that type of Award
set out in the following Section), and such other terms and conditions, not inconsistent with the
terms of the Plan, as the Committee may prescribe. No prospective Participant shall have any
rights with respect to an Award, unless and until such Participant has executed an agreement
evidencing the Award, delivered a fully executed copy thereof to the Company, and otherwise
complied with the applicable terms and conditions of such Award.




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7. Specific Terms of Awards




     7.1 Options.



          (a) Date of Grant. The granting of an Option shall take place at the
time specified in the Award Agreement. Only if expressly so provided in the applicable Award
Agreement shall the Grant Date be the date on which the Award Agreement shall have been duly
executed and delivered by the Company and the Optionee.




          (b) Exercise Price. The price at which shares of Common Stock may be acquired
under each Incentive Option shall he not less than 100% of the Market Value of Common Stock on the
Grant Date, or not less than 110% of the Market Value of Common Stock on the Grant Date if the
Optionee is a Ten Percent Owner. The price at which shares may be acquired under each Nonstatutory
Option shall not be so limited solely by reason of this Section.




          (c) Option Period. No Incentive Option may be exercised on or after The tenth
anniversary of the Grant Date, or on or after the fifth anniversary of the Grant Date if the
Optionee is a Ten Percent Owner. The Option period under each Nonstatutory Option shall not be so
limited solely by reason of this Section.




          (d) Exercisability. An Option may be immediately exercisable or become exercisable in
such installments, cumulative or non-cumulative, as the Committee may determine. In the case of an
Option not otherwise immediately exercisable in full, the Committee may Accelerate such Option in
whole or in part at any time; provided, however, that in the case of an Incentive Option, any such
Acceleration of such Incentive Option would not cause such Incentive Option to fail to comply with
the provisions of Section 422 of the Code or the Optionee consents to such Acceleration.




          (e) Effect of Termination of Employment,
Consulting or Board Member Relationship. Unless the Committee
shall provide otherwise with respect to any Option, if the Optionee’s employment, consulting or
Board member relationship with the Company and its Affiliates ends for any reason, including
because an entity with which the Optionee has an employment, consulting or Board member
relationship ceases to be an Affiliate of the Company, any outstanding Option held by the Optionee
shall cease to be exercisable in any respect not later than ninety (90) days following that event
and, for the period it remains exercisable following that event, shall be exercisable only to the
extent exercisable at the date of that event. Military or sick leave or other bona fide leave
shall not be deemed a termination of employment, provided that it does not exceed the longer of
ninety (90) days or the period during which the absent Optionee’s reemployment rights, if any, are
guaranteed by statute or by contract.




          (f) Transferability. Except as otherwise provided in this subsection (f), Options
shall not be transferable, and no Option or interest therein may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and
distribution. Except as otherwise provided in this subsection (f), all of a Participant’s rights
in any Option may be exercised during the life of the Participant only by the Participant or the
Participant’s legal representative, However, the Committee may, at or after the grant of a
Nonstatutory Option, provide that such Option may be transferred by the recipient, in a family
member; provided, however, that any such transfer is without payment of any consideration
whatsoever and that no transfer of an Option shall be valid unless first approved by the Committee,
acting in its sole discretion. For this purpose, “family member” means any child, stepchild,
grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew, mother-



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in-law, father-in-law, son in law, daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, any person sharing the Participant’s household (other than a
tenant or employee), a trust in which the foregoing persons have more than fifty (50) percent of
the beneficial interests, a foundation in which the foregoing persons (or the Participant) control
the management of assets, and any other entity in which these persons (or the Participant) own more
than fifty (50) percent of the voting interests.




          (g) Method of Exercise. An Option may be exercised by the Optionee
giving written notice, in the manner provided In Section 15, specifying the number of shares of
Common Stock with respect to which the Option is then being exercised. The notice shall be
accompanied by payment in the form of cash or check payable to the order of the Company in an
amount equal to the exercise price of the shares of Common Stock to be purchased or, if the
Committee had so authorized on the grant of an Incentive Option or on or after grant of an
Nonstatutory Option (and subject to such conditions, if any, as the Committee may deem necessary to
avoid adverse accounting effects to the Company) by delivery to the Company of (i) shares of Common
Stock having a Market Value equal to the exercise price of the shares to be purchased, or (ii) the
Optionee’s executed promissory note in the principal amount equal to the exercise price of the
shares to be purchased and otherwise in such form as the Committee shall have approved. Receipt by
the Company of such notice and payment In any authorized or combination of authorized means shall
constitute the exercise of the Option. Within thirty (30) days thereafter but subject to the
remaining provisions of the Plan, the Company shall deliver or cause to be delivered to the
Optionee or his agent a certificate or certificates for the number of shares then being purchased.
Such shares shall be fully paid and nonassessable. Notwithstanding any of the foregoing provisions
in this subsection (g) to the contrary, (A) no Option shall be considered to have been exercised
unless and until all of the provisions governing such exercise specified in the Plan and in the
relevant Award Agreement shall have been duly complied with; and (B) the obligation of the Company
to issue any shares upon exercise of an Option is subject to the provisions of Section 9.1 hereof
and. in compliance by the Optionee with all of the provisions of the Plan and the relevant Award
Agreement.




          (h) Limit on Incentive Option Characterization. An
Incentive Option shall be considered to be an Incentive Option only to the extent that the number
of shares of Common Stock for which the Option first becomes exercisable in a calendar year do not
have an aggregate Market Value (as of the date of the grant of the Option) in excess of the
“current limit”. The current limit for any Optionee for any calendar year shall be $100,000 minus
the aggregate Market Value at the date of grant of the number of shares of Common Stock available
for purchase; for the first time in the same year under each other Incentive Option previously
granted to the Optionee under the Plan, and under each other incentive stock option previously
granted to the Optionee under any other incentive stock option plan of the Company and its
Affiliates, after December 31, 1986. Any shares of Common Stock which would cause the foregoing
limit to be violated shall be deemed to have been granted under a separate Nonstatutory Option,
otherwise identical in its terms to those of the Incentive Option.




          (i) Notification of Disposition. Each person exercising any Incentive
Option granted under the Plan shall be deemed to have covenanted with the Company to report to the
Company any disposition of such shares prior to the expiration of the holding periods specified by
Section 422(a)(l) of the Code and, if and to the extent that the realization of income in such a



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disposition imposes upon the Company federal, state, local or other withholding tax
requirements, or any such withholding is required to secure for the Company an otherwise available
deduction, to remit to the Company an amount in cash sufficient to satisfy those requirements.




          (j) Rights Pending Exercise. No person holding an Option shall be
deemed for any purpose to be a stockholder of the Company with respect to any of the shares of
Common Stock issuable pursuant to his Option, except to the extent that the Option shall have been
exercised with respect thereto and, in addition, a certificate shall have been issued therefor and
delivered to such holder or his agent.




     7.2 Restricted Stock.



          (a) Purchase Price. Shares of Restricted Stock shall be issued under the Plan
for such consideration, in cash, other property or services, or any combination thereof, as is
determined by the Committee.




          (b) Issuance of Certificates. Subject to subsection (c) below, each
Participant receiving an Award of Restricted Stock shall be issued a stock certificate in respect
of such shares of Restricted Stock. Such certificate shall be registered in the name of such
Participant, and, if applicable, shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Award substantially in the following form:





The transferability of this certificate and the shares represented
by this certificate are subject to the terms and conditions of 3am
Labs, Inc. 2004 Equity Incentive Plan and an Award Agreement entered
into by the registered owner and 3am Labs, Inc. Copies of such Plan
and Agreement are on file in the offices of 3am Labs, Inc.



          (c) Escrow of Shares. The Committee may require that the stock
certificates evidencing shares of Restricted Stock be held in custody by a designated escrow agent
(which may but need not be the Company) until the restrictions thereon shall have lapsed, and that
the Participant deliver a stock power, endorsed in blank, relating to the Common Stock covered by
such Award.




          (d) Restrictions and Restriction Period. During the
Restriction Period applicable to shares of Restricted Stock, such shares shall be subject to
limitations on transferability and a Risk of Forfeiture arising on the basis of such conditions
related to the performance of services, Company or Affiliate performance or otherwise as the
Committee may determine and provide for in the applicable Award Agreement. Any such Risk of
Forfeiture may be waived or terminated, or the Restriction Period shortened, at any time by the
Committee on such basis as it deems appropriate.




          (e) Rights Pending Lapse of Risk of
Forfeiture or Forfeiture of Award. Except as otherwise
provided in the Plan or the applicable Award. Agreement, at all times prior to lapse of any Risk
of Forfeiture applicable to, or forfeiture of, an Award of Restricted Stock, the Participant shall
have all of the rights of a stockholder of the Company, including the right to vote the shares of
Restricted Stock.




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          (f) Effect
of Termination of Employment Consulting or
Board Member Relationship. Unless otherwise determined by the Committee at or
after grant and subject to the applicable provisions of the Award Agreement, if a Participant’s
employment, consulting or Board member relationship with the Company and its Affiliates ends for
any reason during the Restriction Period, including because an entity with which the Participant
has an employment, consulting or Board member relationship ceases to be an Affiliate of the
Company, all shares of Restricted Stock still subject to Risk of Forfeiture shall be forfeited or
otherwise subject to return to or repurchase by the Company on the terms specified in the Award
Agreement; provided, however, that military or sick leave or other bona fide leave shall not be
deemed a termination of employment, if it does not exceed the longer of ninety (90) days or the
period during which the absent Participant’s reemployment rights, if any, are guaranteed by statute
or by contract.




          (g) Lapse of Restrictions. If and when the Restriction Period expires
without a prior forfeiture of the Restricted Stock, the certificates for such shares shall be
delivered to the Participant promptly if not theretofore so delivered.




     7.3 Stock Grants.



          (a) In General. Stock Grants shall be issued for such consideration, in cash,
other property or services, or any combination thereof, as is determined by the Committee. Without
limiting the generality of the foregoing, Stock Grants may be awarded in such circumstances as the
Committee deems appropriate, including without limitation in recognition of significant
contributions to the success of the Company or its Affiliates or in lieu of compensation otherwise
already due. Stock Grants shall be made without forfeiture conditions of any kind.




          (b) Issuance of Certificates. Each Participant receiving a Stock
Grant shall be issued a stock certificate in respect of such Stock Grant. Such certificate shall
be registered in the name of such Participant, and, if applicable, shall bear an appropriate legend
referring to the terms, conditions, and restrictions applicable to such Award substantially in the
following form:





The transferability of this certificate and the shares represented
by this certificate are subject to the terms and conditions of 3am
Labs, Inc. 2004 Equity Incentive Plan. A copy of such Plan is on
tile in the offices of 3am Labs, Inc.



8. Adjustment Provisions




     8.1 Adjustment for Corporate Actions. All of the share
numbers set forth in the Plan reflect the capital structure of the Company as of August 20, 2004.
Subject to the provisions of Section 8.2, if subsequent to such date the outstanding shares of
Common Stock (or any other securities covered by the Plan by reason of the prior application of
this Section) are increased, decreased, or exchanged for a different number or kind of shares or
other securities, or if additional shares or new or different shares or other securities are
distributed with respect to such shares of Common Stock or other securities, through merger,
consolidation, sale of all or substantially all the property of the Company, reorganization,
recapitalization, classification, stock dividend, stock split, reverse stock split, or other
distribution with respect to such shares of



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Common Stock, or other securities, an appropriate and proportionate adjustment will be made in
(i) the maximum numbers and kinds of shares provided in Section 4, (ii) the numbers and kinds of
shares or other securities subject to the then outstanding Awards, (iii) the exercise price for
each share or other unit of any other securities subject to then outstanding Options (without
change in the aggregate purchase price as to which such Options remain exercisable), and (iv) the
repurchase price of each share of Restricted Stock then subject to a Risk of Forfeiture in the form
of a Company repurchase right.



     8.2 Change of Control. Subject to the applicable provisions of the
Award Agreement, in the event of a Change of Control, the Committee shall have the discretion,
exercisable in advance of, at the time of, or (except to the extent otherwise provided below) at
any time after, the Change of Control, to provide for any or all of the following (subject to and
upon such terms as the Committee may deem appropriate): (A) the Acceleration of any or all
outstanding Options (including Options that are assumed or replaced pursuant to clause (C) below)
that are not exercisable in full at the time the Change of Control, such Acceleration to become
effective at the time of the Change of Control, or at such time following the Change of Control
that the employment, consulting or Board member relationship of the applicable Optionee or
Optionees with the Company and its Affiliates terminates, or at such other time or times as the
Committee shall determine; (B) the termination of any or all of the Company’s repurchase rights
with respect to Restricted Stock Awards, such termination to become effective at the time of the
Change of Control, or at such time following the Change of Control that the employment, consulting
or Board member relationship with the Company and its Affiliates of the Participant or Participants
that hold such Restricted Stock Awards terminates, or at such other time or times as the Committee
shall determine; (C) the assumption of outstanding Options, or the substitution of outstanding
Options with equivalent options, by the acquiring or succeeding corporation or entity (or an
affiliate thereof); or (D) the termination of all Options (other than Options that are assumed or
substituted pursuant to clause (C) above) that remain outstanding at the time of the consummation
of the Change of Control, provided that, the Committee shall have made the determination to effect
such termination prior to the consummation of the Change of Control and the Committee shall have
given, or caused to be given, to all Optionees written notice of such potential termination at
least five business days prior to the consummation of the Change of Control, and provided, further,
that, if the Committee shall have determined in its sole and absolute discretion that the
Corporation make payment or provide consideration to the holders of such terminated Options on
account of such termination, which payment or consideration shall be on such terms and conditions
as the Committee shall have determined (and which could consist of, in the Committee’s sole and
absolute discretion, payment to the applicable Optionee or Optionees of an amount of cash equal to
the difference between the Market Value of the shares of Common Stock for which the Option is then
exercisable and the aggregate exercise price for such shares under the Option), then the
Corporation shall be required to make such payment or provide such consideration in accordance with
the terms and conditions so determined by the Committee; otherwise the Corporation shall not be
required to make any payment or provide any consideration in connection with, or as a result of,
the termination of Options pursuant to the foregoing provisions of this clause (D). The provisions
of this Section 8.2 shall not be construed as to limit or restrict in any way the Committee’s
general authority under Sections 7.1(d) or 7.2(d) hereof to Accelerate Options in whole or in part
at any time or to waive or terminate at any time any Risk of Forfeiture applicable to shares of
Restricted Stock. Each outstanding Option that is assumed in connection with a Change of Control,
or is otherwise



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to continue in effect subsequent to a Change of Control, will be appropriately adjusted,
immediately after the Change of Control, as to the number and class of securities and the price at
which it may be exercised in accordance with Section 8.1.



     8.3 Dissolution or Liquidation. Upon dissolution or liquidation of
the Company, each outstanding Option shall terminate, but the Optionee (if at the time he or she
has an employment, consulting or Board member relationship with the Company or any of its
Affiliates) shall have the right, immediately prior to such dissolution or liquidation, to exercise
the Option to the extent exercisable on the date of such dissolution or liquidation.



     8.4 Related Matters. Any adjustment in Awards made pursuant to this Section 8
shall be determined and made, if at all, by the Committee and shall include any correlative
modification of terms, including of Option exercise prices, rates of vesting or exercisability,
Risks of Forfeiture and applicable repurchase prices for Restricted Stock, which the Committee may
deem necessary or appropriate so as to ensure that the rights of the Participants in their
respective Awards are not substantially diminished nor enlarged as a result of the adjustment and
corporate action other than as expressly contemplated in this Section 8. No fraction of a share
shall be purchasable or deliverable upon exercise, but in the event any adjustment hereunder of the
number of shares covered by an Award shall cause such number to include a fraction of a share, such
number of shares shall be adjusted to the nearest smaller whole number of shares. No adjustment of
an Option exercise price per share pursuant to this Section 8 shall result in an exercise price
which is less than the par value of the Common Stock.



9. Settlement of Awards




     9.1 Violation of Law. Notwithstanding any other provision of the Plan
or the relevant Award Agreement, if, at any time, in the reasonable opinion of the Company, the
issuance of shares of Common Stock covered by an Award may constitute a violation of law, then the
Company may delay such issuance and the delivery of a certificate for such shares until (i)
approval shall have been obtained from such governmental agencies, other than the Securities and
Exchange Commission, as may be required under any applicable law, rule, or regulation and (ii) in
the case where such issuance would constitute a violation of a law administered by or a regulation
of the Securities and Exchange Commission, one of the following conditions shall have been
satisfied:



          (a) the shares are at the time of the issue of such shares effectively registered under the
Securities Act; or




          (b) the Company shall have determined, on such basis as it deems appropriate (including an
opinion of counsel in form and substance satisfactory to the Company) that the sale, transfer,
assignment, pledge, encumbrance or other disposition of such shares or such beneficial interest, as
the case may be, does not require registration under the Securities Act or any applicable state
securities




     9.2 Corporate Restrictions on Rights in Stock.
Any Common Stock to be issued pursuant to Awards granted under the Plan shall be subject to all
restrictions upon the transfer thereof which may be now or hereafter imposed by the Certificate of
Incorporation and the By-



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laws of the Company, each as amended and in effect from time to time. Whenever Common Stock
is to be issued pursuant to an Award, if the Committee so directs at the time of grant (or, if such
Award is an Option, at any time prior to the exercise thereof), the Company shall be under no
obligation, notwithstanding any other provision of the Plan or the relevant Award Agreement to the
contrary, to issue such shares until such time, if ever, as the recipient of the Award (and any
person who exercises any Option, in whole or in part), shall have become a party to and bound by
any Stockholder Agreement that the Committee shall require in its sole discretion.



     9.3 Investment Representations. The Company shall be under no obligation to
issue any shares covered by an Award unless the shares to be issued pursuant to Awards granted
under the Plan have been effectively registered under the Securities Act or the Participant shall
have made such written representations to the Company (upon which the Company believes it may
reasonably rely) as the Company may deem necessary or appropriate for purposes of confirming that
the issuance of such shares will be exempt from the registration requirements of that Act and any
applicable state securities laws and otherwise in compliance with all applicable laws, rules and
regulations, including but not limited to that the Participant is acquiring shares for his or her
own account for the purpose of investment and not with a view to, or for sale in connection with,
the distribution of any such shares.



     9.4 Registration. If the Company shall deem it necessary or desirable to register
under the Securities Act or other applicable statutes any shares of Common Stock issued or to be
issued pursuant to Awards granted under the Plan, or to qualify any such shares of Common Stock for
exemption from the Securities Act or other applicable statutes, then the Company shall take such
action at its own expense. The Company may require from each recipient of an Award, or each holder
of shares of Common Stock acquired pursuant to the Plan, such information in writing for use in any
registration statement, prospectus, preliminary prospectus or offering circular as is reasonably
necessary for such purpose and may require reasonable indemnity to the Company and its officers and
directors from such holder against all losses, claims, damage and liabilities arising from such use
of the information so furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under which they were made.



     9.5 Lock-Up. Without the prior written consent of the Company or the managing
underwriter in any public offering of shares of Common Stock, no Participant shall sell, make any
short sale of, loan, grant any option for the purchase of, pledge or otherwise encumber, or
otherwise dispose of, any shares of Common Stock during the one hundred-eighty (180) day period
commencing on the effective date of the registration statement relating to any underwritten public
offering of securities of the Company. The foregoing restrictions are intended and shall be
construed so as to preclude any Participant from engaging in any hedging or other transaction that
is designed to or reasonably could be expected to lead to or result in, a sale or disposition of
any shares of Common Stock during such period even if such shares of Common Stock are or would be
disposed of by someone other than such Participant. Such prohibited hedging or other transactions
would include, without limitation, any short sale (whether or not against the box) or any purchase,
sale or grant of any right (including without limitation any put or call option) with respect to
any shares of Common Stock or with respect to any security that includes, relates to, or derives
any significant part of its value from any shares



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of Common Stock. Without limiting the generality of the foregoing provisions of this Section
9.5, if, in connection with any underwritten public offering of securities of the Company, the
managing underwriter of such offering requires that the Company’s directory and u fillers enter
into a lock-up agreement containing provisions that are more restrictive than the provisions set
forth in the preceding sentence, then (a) each Participant (regardless of whether or not such
Participant has complied or complies with the provisions of clause (b) below) shall be bound by,
and shall be deemed to have agreed to, the same lock-up terms as those to which the Company’s
directors and officers are required to adhere; and (b) at the request of the Company or such
managing underwriter, each Participant shall execute and deliver a lookup agreement in form and
substance equivalent to that which is required to be executed by the Company’s directors and
officers.



     9.6 Placement of Legends; Stop Orders; etc.
Each share of Common Stock to be issued pursuant to Awards granted under the Plan may bear a
reference to the investment representations made in accordance with Section 9.3 in addition to any
other applicable restrictions under the Plan, the terms of the Award and, if applicable, under any
Stockholder Agreement and to the fact that no registration statement has been filed with the
Securities and Exchange Commission in respect to such shares of Common Stock. All certificates for
shares of Common Stock or other securities delivered under the Plan shall be subject to such stock
transfer orders and other restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of any stock exchange upon which the Common Stock is then
listed, and any applicable federal or state securities law, and the Committee may cause a legend or
legends to be placed on any such certificates to make appropriate reference to such restrictions.



     9.7 Tax Withholding. Whenever shares of Common Stock Eire issued or to be
issued pursuant to Awards granted under the Plan, the Company shall have the right to require the
recipient to remit to the Company an amount sufficient to satisfy federal, state, local or other
withholding tax requirements if, when, and to the extent required by law (whether so required to
secure for the Company an otherwise available tax deduction or otherwise) prior to the delivery of
any certificate or certificates for such shares. The obligations of the Company under the Plan
shall he conditional on satisfaction of all such withholding obligations and the Company shall, to
the extent permitted by law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the recipient of an Award.



10. Reservation of Stock




     The Company shall at all times during the term of the Plan and any outstanding Options granted
hereunder reserve or otherwise keep available such number of shares of Common Stock as will be
sufficient to satisfy the requirements of the Plan (if then in effect) and such Options and shall
pay all fee and expenses necessarily incurred by the Company in connection therewith.



11. No Special Service Rights




     Nothing contained in the Plan or in any Award Agreement shall confer upon any recipient of an
Award any right with respect to the continuation of his or her employment, consulting or Board
member relationship with the Company (or any Affiliate), or interfere in any way with the right of
the Company (or any Affiliate), subject to the terms of any separate



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employment, consulting or Board member agreement or provision of law or corporate articles or
by-laws to the contrary, at any time to terminate such employment, consulting or Board member
agreement or La increase or decrease, or otherwise adjust, the other terms and conditions of the
recipient’s employment, consulting or Board member relationship with the Company and its
Affiliates.



12. Nonexclusivity of the Plan




     Neither the adoption of the Plan by the Board nor the submission of the Plan to the
stockholders of the Company shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable, including without
limitation,, the granting of stock options and restricted stock other than under the Plan, and such
arrangements may be either applicable generally or only in specific cases.



13. Termination and Amendment of the Plan




     The Board may at any time terminate the Plan or make such amendments or modifications of the
Plan as it shall deem advisable. In the event of the termination of the Plan, the terms of the
Plan shall survive any such termination with respect to any Award that is outstanding on the date
of such termination, unless the holder of such Award agrees in writing to terminate such Award or
to terminate all or any of the provisions of the Plan that apply to such Award. Unless the Board
otherwise expressly provides, any amendment or modification of the Plan shall affect the terms of
any Award outstanding on the date of such amendment or modification as well as the terms of any
Award made from and after the date of such amendment or modification; provided however, that,
except to the extent otherwise provided in the last sentence of this paragraph, (i) no amendment or
modification of the Plan shall apply to any Award that is outstanding on the date of such amendment
or modification if such amendment or modification would reduce the number of shores subject to such
Award, increase the purchase price applicable to shares subject to such Award or materially
adversely affect the provisions applicable to such Award that relate to the vesting or
exercisability of such Award or of the shares subject to such Award, (ii) no amendment or
modification of the Plan shall apply to any Incentive Option that is outstanding on the date of
such amendment or modification if such amendment or modification would result in such Incentive
Option no longer being treated as an “incentive stock option” within the meaning of Section 422 of
the Code, and (iii) no amendment or modification of the Plan shall apply to any Award that is
outstanding on the date of such amendment or modification unless such amendment or modification of
the Plan shall also apply to all other Awards outstanding on the date of such amendment or
modification. In the event of any amendment or modification of the Plan that is described in
clause (i), (ii) or (iii) of the foregoing proviso, such amendment or modification of the Plan
shall apply to any Award outstanding on the date of such amendment or modification only if the
recipient of such Award consents in writing thereto.



     The Committee may amend or modify, prospectively or retroactively, the terms of any Award
theretofore granted without amending or modifying the terms of the Plan itself, provided that as
amended or modified such Award is consistent with the terms of the Plan as in effect at the time of
the amendment or modification of such Award, but no such amendment or modification of such Award
shall, without the written consent of the recipient of such Award,



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reduce the number of shares subject to such Award, increase the purchase price applicable to
shares subject to such Award, adversely affect the provisions applicable to such Award that relate
to the vesting or exercisability of such Award or of the shares subject to such Award, otherwise
materially adversely affect the terms of such Award (except for amendments or modifications to the
terms of such Award or of the stock subject to such Award that are expressly permitted by the terms
of the Plan or that result from any amendment or modification of the Plan in accordance with the
provisions of the first paragraph of this Section 13), or, if such Award is an Incentive Option,
result in such Incentive Option no longer being treated as an “incentive stock option” within the
meaning of Section 422 of the Code.



14. Interpretation of the Plan




     In the event of any conflict between the provisions of this Plan and the provisions of any
applicable Award Agreement, the provisions of such Award Agreement shall control, but insofar as
possible the provisions of the Plan and such Award Agreement shall be construed so as to give full
force and effect to all such provisions. In the event of any conflict between the provisions of
this Plan and the provisions of any applicable Stockholder Agreement, the provisions of such
Stockholder Agreement shall control except as required to fulfill the intention that this Plan
constitute an incentive stock option plan within the meaning of Section 122 of the Code, but
insofar as possible the provisions of the Plan and any such Stockholder Agreement shall be
construed so as to give full force and effect to all such provisions.



15. Notices and Other Communications




     Any notice, demand, request or other communication hereunder to any party shall be deemed to
be sufficient if contained in a written instrument delivered in person or duly sent by first class
registered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy by
regular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to the
recipient of an Award, at his or her residence address last filed with the Company and (ii) if to
the Company, at its principal place of business, addressed to the attention of its Chief Executive
Officer, or to such other address or telecopier number, as the case may be, as the addressee may
have designated by notice to the addresser. All such notices, requests, demands and other
communications shall be deemed to have been received: (i) in the case of personal delivery, on the
date of such delivery; (ii) in the case of mailing, when received by the addressee; and (iii) in
the case of facsimile transmission, when confirmed by facsimile machine report.



16. Governing Law




     The Plan and all Award Agreements and actions taken thereunder shall be governed, interpreted
and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to
the conflict of laws principles thereof.



	 	 	 	 	 
	 	 	/s/ Michael Simon
	 	 	 
	 

	 	Name:
	 	Michael Simon
	 

	 	Title:
	 	President






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