EXHIBIT
10.1


 


ASPEN
TECHNOLOGY, INC.


 


2010
EQUITY INCENTIVE PLAN


 


1.                       GENERAL.


 


(a)                  Definitions.  Certain terms used in this Aspen Technology, Inc.
2010 Equity Incentive Plan are defined in Section 13.


 


(b)                  Eligible Award
Recipients.  The persons eligible to receive Awards are
Employees, Directors and Consultants.


 


(c)                  Available Awards. 
The Plan provides for the grant of the following Awards:  (i) Incentive Stock Options; (ii) Nonstatutory
Stock Options; (iii) Stock Appreciation Rights; (iv) Restricted Stock
Awards; (v) Restricted Stock Unit Awards; (vi) Performance Stock
Awards; (vii) Performance Cash Awards; and (viii) Other Stock Awards.


 


(d)                  Purpose. 
The Company, by means of the Plan, seeks to secure and retain the
services of the group of persons eligible to receive Awards as set forth in Section 1(b),
to provide incentives for such persons to exert maximum efforts for the success
of the Company and any Affiliate, and to provide a means by which such eligible
recipients may be given an opportunity to benefit from increases in value of
the Common Stock through the granting of Awards.


 


2.                       ADMINISTRATION.


 


(a)                  Administration by Board. 
The Board shall administer the Plan unless and until the Board delegates
administration of the Plan to a Committee or Committees, as provided in Section 2(c).


 


(b)                  Powers of Board. 
The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:


 


(i)                                    to determine from time to time (A) which
of the persons eligible under the Plan shall be granted Awards; (B) when
and how each Award shall be granted; (C) what type or combination of types
of Award shall be granted; (D) the provisions of each Award granted (which
need not be identical), including the time or times when a person shall be
permitted to receive cash or Common Stock pursuant to a Stock Award; (E) the
number of shares of Common Stock with respect to which a Stock Award shall be
granted to each such person; and (F) the Fair Market Value applicable to a
Stock Award;


 


(ii)                                to construe and interpret the Plan and
Awards granted under it, and to establish, amend and revoke rules and
regulations for its administration, it being understood that, among other
things, the Board, in the exercise of this power, may correct any defect, omission
or inconsistency in the Plan or in any Stock Award Agreement or in the written
terms of a Performance Cash Award, in a manner and to the extent it shall deem
necessary or expedient to make the Plan or Award fully effective;


 


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(iii)                            to settle all controversies regarding the
Plan and Awards granted under it;


 


(iv)                               to accelerate the time at which an Award
may first be exercised or the time during which an Award or any part thereof
will vest in accordance with the Plan, notwithstanding the provisions in the
Award stating the time at which it may first be exercised or the time during
which it will vest;


 


(v)                                   to suspend or terminate the Plan at any
time.  Suspension or termination of the
Plan shall not impair rights and obligations under any Award granted while the
Plan is in effect except with the written consent of the affected Participant;


 


(vi)                               to amend the Plan in any respect the Board deems
necessary or advisable, including by adopting amendments relating to Incentive
Stock Options and certain nonqualified deferred compensation under Section 409A
of the Code and/or to bring the Plan or Awards granted under the Plan into
compliance therewith, subject to the limitations, if any, of applicable law, provided, however, that, except as provided in Section 9(a) relating
to Capitalization Adjustments, to the extent required by applicable law or
listing requirements, stockholder approval shall be required for any
amendment of the Plan that (A) materially increases the number of shares
of Common Stock available for issuance under the Plan, (B) materially
expands the class of individuals eligible to receive Awards under the Plan, (C) materially
increases the benefits accruing to Participants under the Plan or materially
reduces the price at which shares of Common Stock may be issued or purchased
under the Plan, (D) materially extends the term of the Plan, or (E) expands
the types of Awards available for issuance under the Plan and provided further that, except as provided above, rights under any Award
granted before amendment of the Plan shall not be impaired by any amendment of
the Plan unless (1) the Company requests the consent of the affected
Participant, and (2) such Participant consents in writing;


 


(vii)                           to submit any amendment to the Plan for
stockholder approval, including any amendment to the Plan intended to satisfy
the requirements of (A) Section 162(m) of the Code regarding the
exclusion of performance-based compensation from the limit on corporate deductibility
of compensation paid to Covered Employees, (B) Section 422 of the
Code regarding “incentive stock options” or (C) Rule 16b-3;


 


(viii)                       to approve forms of Award Agreements for
use under the Plan and to amend the terms of any one or more Awards, including
amendments to provide terms more favorable to the Participant than previously
provided in the Award Agreement, subject to any specified limits in the Plan
that are not subject to Board discretion; provided, however,
that except with respect to amendments that disqualify or impair the status of
an Incentive Stock Option, a Participant’s rights under any Award shall not be
impaired by any such amendment unless (A) the Company requests the consent
of the affected Participant, and (B) such Participant consents in writing
and provided further that, notwithstanding
any of the foregoing, subject to the limitations of applicable law, if any, the
Board may amend the terms of any one or more Awards without the affected
Participant’s consent if necessary to maintain the qualified status of the
Award as an Incentive Stock Option or to bring the Award into compliance with Section 409A
of the Code;


 


(ix)                              generally, to exercise such powers and to
perform such acts that the Board deems necessary or expedient to promote the
best interests of the Company and that are not in conflict with the provisions
of the Plan or Awards; and


 


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(x)                                  to adopt such procedures and sub-plans as
are necessary or appropriate to permit participation in the Plan by Employees,
Directors or Consultants who are foreign nationals or employed outside the
United States.


 


(c)                  Delegation to Committee.


 


(i)                                    General. 
The Board may delegate some or all of the administration of the Plan to
a Committee or Committees.  If
administration of the Plan is delegated to a Committee, the Committee shall
have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board that have been delegated to the Committee, including the
power to delegate to a subcommittee of the Committee any of the administrative
powers the Committee is authorized to exercise (and references in this Plan to
the Board shall thereafter be to the Committee or subcommittee), subject,
however, to such resolutions, not inconsistent with the provisions of the Plan,
as may be adopted from time to time by the Board.  The Board may retain the authority to
concurrently administer the Plan with the Committee and may, at any time, revest
in the Board some or all of the powers previously delegated.


 


(ii)                                Section 162(m) and
Rule 16b-3 Compliance.  The Committee
may consist solely of two or more Outside Directors, in accordance with Section 162(m) of
the Code, or solely of two or more Non-Employee Directors, in accordance with Rule 16b-3.


 


(d)                  Delegation to an
Officer.  The Board may delegate to one (1) or
more Officers the authority to do one or both of the following (i) designate
Employees who are providing Continuous Service to the Company or any of its
Subsidiaries who are not Officers
to be recipients of Options and Stock Appreciation Rights (and, to the extent
permitted by applicable law, other Stock Awards) and the terms thereof, and (ii) determine
the number of shares of Common Stock to be subject to such Stock Awards granted
to such Employees; provided, however,  that
the Board resolutions regarding such delegation shall specify the total number
of shares of Common Stock that may be subject to the Stock Awards granted by
such Officer and that such Officer may not grant a Stock Award to himself or
herself.  Notwithstanding the foregoing,
the Board may not delegate authority to an Officer to determine the Fair Market
Value pursuant to Section 13(u)(iii).


 


(e)                  Effect of Board’s
Decision.  All determinations, interpretations and
constructions made by the Board in good faith shall not be subject to review by
any person and shall be final, binding and conclusive on all persons.


 


(f)                    Cancellation and
Re-Grant of Stock Awards.  Neither the Board nor any
Committee shall have the authority to:  (i) reduce
the exercise price of any outstanding Options or Stock Appreciation Rights
under the Plan, or (ii) cancel any outstanding Options or Stock
Appreciation Rights that have an exercise price or strike price greater than
the current Fair Market Value of the Common Stock in exchange for cash or other
Stock Awards to be granted under the Plan or any other equity compensation plan
of the Company, unless the stockholders of the Company have approved such an
action within twelve months prior to such an event.


 


3.                       SHARES SUBJECT TO THE PLAN.


 


(a)                  Share Reserve.  Subject to Section 9(a) relating to
Capitalization Adjustments, the aggregate number of shares of Common Stock that
may be issued pursuant to Stock Awards from and after the Effective Date shall
not exceed 7,000,000 shares.  For
clarity, the Share Reserve in this Section 3(a) is a limitation on
the number of shares of the Common Stock that may be issued pursuant to the
Plan and does not limit the granting of Stock Awards except as provided in


 


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Section 7(a). 
Shares may be issued in connection with a merger or acquisition as
permitted by, as applicable, NASDAQ Marketplace Rule 4350(i)(1)(A)(iii),
NYSE Listed Company Manual Section 303A.08, AMEX Company Guide Section 711
or other applicable stock exchange rules, and such issuance shall not reduce
the number of shares available for issuance under the Plan.  Furthermore, if a Stock Award or any portion
thereof (i) expires or otherwise terminates without all of the shares
covered by such Stock Award having been issued or (ii) is settled in cash
(i.e., the Participant receives cash
rather than stock), such expiration, termination or settlement shall not reduce
(or otherwise offset) the number of shares of Common Stock that may be
available for issuance under the Plan.


 


(b)                  Reversion of Shares to the Share
Reserve.  If any shares of common stock issued pursuant to a
Stock Award are forfeited back to the Company because of the failure to meet a
contingency or condition required to vest such shares in the Participant, then
the shares that are forfeited shall revert to and again become available for
issuance under the Plan.  Any shares
reacquired by the Company pursuant to Section 8(g) or as
consideration for the exercise of an Option shall again become available for
issuance under the Plan.


 


(c)                  Incentive Stock Option
Limit.  Notwithstanding anything to the contrary in this Section 3
and, subject to the provisions of Section 9(a) relating to
Capitalization Adjustments, the aggregate maximum number of shares of Common
Stock that may be issued pursuant to the exercise of Incentive Stock Options
shall be 7,000,000 shares of Common Stock.


 


(d)                  Source of Shares. 
The stock issuable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares repurchased by the
Company on the open market or otherwise.


 


4.                       ELIGIBILITY.


 


(a)                  Eligibility for Specific
Stock Awards.  Incentive Stock Options may be granted only
to employees of the Company or a “parent corporation” or “subsidiary
corporation” thereof (as such terms are defined in Sections 424(e) and (f) of
the Code).  Stock Awards other than
Incentive Stock Options may be granted to Employees, Directors and Consultants;
provided, however, Nonstatutory Stock
Options and SARs may not be granted to Employees, Directors and Consultants who
are providing Continuous Service only to any “parent” of the Company, as such
term is defined in Rule 405, unless the stock underlying such Stock Awards
is treated as “service recipient stock” under Section 409A of the Code
because the Stock Awards are granted pursuant to a corporate transaction (such
as a spin off transaction) or unless such Stock Awards comply with the
distribution requirements of Section 409A of the Code.


 


(b)                  Ten Percent Stockholders.  A
Ten Percent Stockholder shall not be granted an Incentive Stock Option unless
the exercise price of such Option is at least 110% of the Fair Market Value on
the date of grant and the Option is not exercisable after the expiration of
five years from the date of grant.


 


(c)                  Section 162(m) Limitation
on Annual Grants.  Subject to the provisions of Section 9(a) relating
to Capitalization Adjustments, at such time as the Company may be subject to
the applicable provisions of Section 162(m) of the Code, no
Participant shall be eligible to be granted during any calendar year Options,
Stock Appreciation Rights and Other Stock Awards whose value is determined by
reference to an increase over an exercise or strike price of at least 100% of
the Fair Market Value on the date the Stock Award is granted covering more than
3,500,000 shares of Common Stock.


 


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5.                       PROVISIONS RELATING TO OPTIONS AND STOCK
APPRECIATION RIGHTS.


 


Each Option or SAR shall be in such form and
shall contain such terms and conditions as the Board shall deem
appropriate.  All Options shall be
separately designated Incentive Stock Options or Nonstatutory Stock Options at
the time of grant, and, if certificates are issued, a separate certificate or
certificates shall be issued for shares of Common Stock purchased on exercise
of each type of Option.  If an Option is
not specifically designated as an Incentive Stock Option, then the Option shall
be a Nonstatutory Stock Option.  The
provisions of separate Options or SARs need not be identical; provided, however, that each Option
Agreement or Stock Appreciation Right Agreement shall conform to (through
incorporation of provisions hereof by reference in the applicable Award
Agreement or otherwise) the substance of each of the following provisions:


 


(a)                  Term. 
Subject to the provisions of Section 4(b) regarding Ten
Percent Stockholders, no Option or SAR shall be exercisable after the
expiration of ten years from the date of its grant or such shorter period
specified in the Award Agreement.


 


(b)                  Exercise Price. 
Subject to the provisions of Section 4(b) regarding Ten
Percent Stockholders, the exercise price (or strike price) of each Option or
SAR shall be not less than 100% of the Fair Market Value of the Common Stock
subject to the Option or SAR on the date the Option or SAR is granted.  Notwithstanding the foregoing, an Option or
SAR may be granted with an exercise price (or strike price) lower than 100% of the
Fair Market Value of the Common Stock subject to the Option or SAR if such
Option or SAR is granted pursuant to an assumption of or substitution for
another option or stock appreciation right pursuant to a Reorganization Event
and in a manner consistent with the provisions of Section 409A and, if
applicable, Section 424(a) of the Code.  Each SAR will be denominated in shares of
Common Stock equivalents.


 


(c)                  Purchase Price for Options. 
The purchase price of Common Stock acquired pursuant to the exercise of
an Option shall be paid, to the extent permitted by applicable law and as
determined by the Board in its sole discretion, by any combination of the
methods of payment set forth below.  The
Board shall have the authority to grant Options that do not permit all of the
following methods of payment (or otherwise restrict the ability to use certain
methods) and to grant Options that require the consent of the Company to
utilize a particular method of payment. 
The permitted methods of payment are as follows:


 


(i)                                    by cash, check, bank draft or money order
payable to the Company;


 


(ii)                                pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board that, prior to the
issuance of the stock subject to the Option, results in either the receipt of
cash (or check) by the Company or the receipt of irrevocable instructions to
pay the aggregate exercise price to the Company from the sales proceeds;


 


(iii)                            by delivery to the Company (either by
actual delivery or attestation) of shares of Common Stock;


 


(iv)                               if the option is a Nonstatutory Stock
Option, by a “net exercise” arrangement pursuant to which the Company will
reduce the number of shares of Common Stock issuable upon exercise by the
largest whole number of shares with a Fair Market Value that does not exceed
the aggregate exercise price; provided,
however, that the
Company shall accept a cash or other payment from the Participant to the extent
of any remaining balance of the aggregate exercise price not satisfied by such
reduction in the number of whole shares to be issued; or


 


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(v)                                   in any other form of legal consideration
that may be acceptable to the Board.


 


(d)                  Exercise and Payment of
a SAR.  To exercise any outstanding Stock Appreciation
Right, the Participant must provide written notice of exercise to the Company
in compliance with the provisions of the Stock Appreciation Right Agreement
evidencing such Stock Appreciation Right. 
The appreciation distribution payable on the exercise of a Stock
Appreciation Right will be not greater than an amount equal to the excess of (A) the
aggregate Fair Market Value (on the date of the exercise of the Stock
Appreciation Right) of a number of shares of Common Stock equal to the number
of Common Stock equivalents in which the Participant is vested under such Stock
Appreciation Right, and with respect to which the Participant is exercising the
Stock Appreciation Right on such date, over (B) the strike price that will
be determined by the Board at the time of grant of the Stock Appreciation
Right.  The appreciation distribution in
respect to a Stock Appreciation Right may be paid in Common Stock, in cash, in
any combination of the two or in any other form of consideration, as determined
by the Board and contained in the Stock Appreciation Right Agreement evidencing
such Stock Appreciation Right.


 


(e)                  Transferability of Options and
SARs.  The Board may, in its sole discretion, impose
such limitations on the transferability of Options and SARs as the Board shall
determine.  In the absence of such a
determination by the Board to the contrary, the following restrictions on the
transferability of Options and SARs shall apply:


 


(i)                                    Restrictions on Transfer. 
An Option or SAR shall not be transferable except by will or by the laws
of descent and distribution and shall be exercisable during the lifetime of the
Participant only by the Participant. 
Except as explicitly provided herein, neither an Option nor a SAR may be
transferred for consideration.


 


(ii)                                Domestic Relations Orders. 
Notwithstanding the foregoing, an Option or SAR may be transferred
pursuant to a domestic relations order; provided, however,
that if an Option is an Incentive Stock Option, such Option may be deemed to be
a Nonstatutory Stock Option as a result of such transfer.


 


(iii)                            Beneficiary Designation. 
Notwithstanding the foregoing, the Participant may, by delivering
written notice to the Company, in a form provided by or otherwise satisfactory
to the Company and any broker designated by the Company to effect Option
exercises, designate a third party who, in the event of the death of the
Participant, shall thereafter be entitled to exercise the Option or SAR and
receive the Common Stock or other consideration resulting from such exercise.  In the absence of such a designation, the
executor or administrator of the Participant’s estate shall be entitled to
exercise the Option or SAR and receive the Common Stock or other consideration
resulting from such exercise.


 


(f)                    Vesting Generally. 
The total number of shares of Common Stock subject to an Option or SAR
may vest and therefore become exercisable in periodic installments that may or
may not be equal.  The Option or SAR may
be subject to such other terms and conditions on the time or times when it may
or may not be exercised (which may be based on the satisfaction of Performance
Goals or other criteria) as the Board may deem appropriate.  The vesting provisions of individual Options
or SARs may vary.  The provisions of this
Section 5(f) are subject to any Option or SAR provisions governing
the minimum number of shares of Common Stock as to which an Option or SAR may
be exercised.


 


(g)                 Termination of
Continuous Service.  Except as otherwise provided in the
applicable Award Agreement or other agreement between the Participant and the
Company, if a Participant’s


 


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Continuous Service terminates (other than upon the
Participant’s death or Disability), the Participant may exercise his or her
Option or SAR (to the extent that the Participant was entitled to exercise such
Award as of the date of termination of Continuous Service) but only within such
period of time ending on the earlier of (i) the date three months
following the termination of the Participant’s Continuous Service (or such
longer or shorter period specified in the applicable Award Agreement) and (ii) the
expiration of the term of the Option or SAR as set forth in the Award
Agreement.  If, after termination of
Continuous Service, the Participant does not exercise his or her Option or SAR
within the time specified herein or in the Award Agreement (as applicable), the
Option or SAR shall terminate.


 


(h)                 Extension of Termination
Date.  If the exercise of an Option or SAR following
the termination of the Participant’s Continuous Service (other than upon the
Participant’s death or Disability) would be prohibited at any time solely
because the issuance of shares of Common Stock would violate the registration
requirements under the Securities Act, then the Option or SAR shall terminate
on the earlier of (i) the expiration of a total period of three months
(that need not be consecutive) after the termination of the Participant’s
Continuous Service during which the exercise of the Option or SAR would not be
in violation of such registration requirements, or (ii) the expiration of
the term of the Option or SAR as set forth in the applicable Award
Agreement.  In addition, unless otherwise
provided in a Participant’s Award Agreement, if the sale of any Common Stock
received upon exercise of an Option or SAR following the termination of the
Participant’s Continuous Service would violate the Company’s insider trading
policy, then the Option or SAR shall terminate on the earlier of (i) the
expiration of a period equal to the applicable post-termination exercise period
after the termination of the Participant’s Continuous Service during which the
exercise of the Option or SAR would not be in violation of the Company’s
insider trading policy, or (ii) the expiration of the term of the Option
or SAR as set forth in the applicable Award Agreement.


 


(i)                    Disability of
Participant.  Except as otherwise provided in the
applicable Award Agreement or other agreement between the Participant and the
Company, if a Participant’s Continuous Service terminates as a result of the
Participant’s Disability, the Participant may exercise his or her Option or SAR
(to the extent that the Participant was entitled to exercise such Option or SAR
as of the date of termination of Continuous Service), but only within such
period of time ending on the earlier of (i) the date 12 months following
such termination of Continuous Service (or such longer or shorter period
specified in the Award Agreement) and (ii) the expiration of the term of
the Option or SAR as set forth in the Award Agreement.  If, after termination of Continuous Service,
the Participant does not exercise his or her Option or SAR within the time
specified herein or in the Award Agreement (as applicable), the Option or SAR
(as applicable) shall terminate.


 


(j)                    Death of Participant. 
Except as otherwise provided in the applicable Award Agreement or other
agreement between the Participant and the Company, if (i) a
Participant’s Continuous Service terminates as a result of the Participant’s
death, or (ii) the Participant dies within the period (if any) specified
in the Award Agreement after the termination of the Participant’s Continuous
Service for a reason other than death, then the Option or SAR may be exercised
(to the extent the Participant was entitled to exercise such Option or SAR as
of the date of death) by the Participant’s estate, by a person who acquired the
right to exercise the Option or SAR by bequest or inheritance or by a person
designated to exercise the Option or SAR upon the Participant’s death, but only
within the period ending on the earlier of (i) the date 18 months
following the date of death (or such longer or shorter period specified in the
Award Agreement), or (ii) the expiration of the term of such Option or SAR
as set forth in the Award Agreement.  If,
after the Participant’s death, the Option or SAR is not exercised within the
time specified herein or in the Award Agreement (as applicable), the Option or
SAR shall terminate.


 


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(k)                Non-Exempt Employees. 
No Option or SAR granted to an Employee who is a non-exempt employee for
purposes of the Fair Labor Standards Act of 1938, as amended, shall be first
exercisable for any shares of Common Stock until at least six months following
the date of grant of the Option or SAR. 
Notwithstanding the foregoing, consistent with the provisions of the
Worker Economic Opportunity Act, (i) in the event of the Participant’s death or Disability, (ii) upon a
Reorganization Event in which such Option or SAR is not assumed, continued, or
substituted, (iii) upon a Change in Control Event, or (iv) upon the
Participant’s retirement (as such term may be defined in the Participant’s
Award Agreement or in another applicable agreement or in accordance with the
Company’s then current employment policies and guidelines), any such vested
Options and SARs may be exercised earlier than six months following the date of
grant.  The foregoing provision is
intended to operate so that any income derived by a non-exempt employee in
connection with the exercise or vesting of an Option or SAR will be exempt from
his or her regular rate of pay.


 


6.                       PROVISIONS OF STOCK AWARDS OTHER THAN
OPTIONS AND SARS.


 


(a)                  Restricted Stock Awards. 
Each Restricted Stock Award Agreement shall be in such form and shall
contain such terms and conditions as the Board shall deem appropriate.  To the extent consistent with the Company’s
Bylaws, at the Board’s election, shares of Common Stock may be (x) held in
book entry form subject to the Company’s instructions until any restrictions
relating to the Restricted Stock Award lapse; or (y) evidenced by a
certificate, which certificate shall be held in such form and manner as
determined by the Board.  The terms and
conditions of Restricted Stock Award Agreements may change from time to time,
and the terms and conditions of separate Restricted Stock Award Agreements need
not be identical; provided, however,
that each Restricted Stock Award Agreement shall conform to (through
incorporation of the provisions hereof by reference in the agreement or
otherwise) the substance of each of the following provisions:


 


(i)                                    Consideration.  A
Restricted Stock Award may be awarded in consideration for (A) cash,
check, bank draft or money order payable to the Company, (B) past services
to the Company or an Affiliate, or (C) any other form of legal
consideration, including future services, that may be acceptable to the Board,
in its sole discretion, and permissible under applicable law.


 


(ii)                                Vesting.  Shares of Common Stock awarded under the Restricted
Stock Award Agreement may be subject to forfeiture to the Company in accordance
with a vesting schedule to be determined by the Board.


 


(iii)                            Termination of Participant’s
Continuous Service.  If a Participant’s Continuous Service
terminates, the Company may receive through a forfeiture condition or a
repurchase right any or all of the shares of Common Stock held by the
Participant that have not vested as of the date of termination of Continuous
Service under the terms of the Restricted Stock Award Agreement.


 


(iv)                               Transferability. 
Rights to acquire shares of Common Stock under the Restricted Stock
Award Agreement shall be transferable by the Participant only upon such terms
and conditions as are set forth in the Restricted Stock Award Agreement, as the
Board shall determine in its sole discretion, so long as Common Stock awarded
under the Restricted Stock Award Agreement remains subject to the terms of the
Restricted Stock Award Agreement.


 


(v)                                   Dividends.  A Restricted Stock Award Agreement may provide that
any dividends paid on Restricted Stock will be subject to the same vesting and
forfeiture restrictions as apply to the shares subject to the Restricted Stock
Award to which they relate.


 


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(b)                  Restricted Stock Unit
Awards.  Each Restricted Stock Unit Award Agreement shall be in
such form and shall contain such terms and conditions as the Board shall deem
appropriate.  The terms and conditions of
Restricted Stock Unit Award Agreements may change from time to time, and the
terms and conditions of separate Restricted Stock Unit Award Agreements need
not be identical; provided, however,  that
each Restricted Stock Unit Award Agreement shall conform to (through incorporation
of the provisions hereof by reference in the Agreement or otherwise) the
substance of each of the following provisions:


 


(i)                                    Consideration. 
At the time of grant of a Restricted Stock Unit Award, the Board will
determine the consideration, if any, to be paid by the Participant upon
delivery of each share of Common Stock subject to the Restricted Stock Unit
Award.  The consideration to be paid (if
any) by the Participant for each share of Common Stock subject to a Restricted
Stock Unit Award may be paid in any form of legal consideration that may be
acceptable to the Board, in its sole discretion, and permissible under
applicable law.


 


(ii)                                Vesting.  At the time of the grant of a Restricted Stock Unit
Award, the Board may impose such restrictions on or conditions to the vesting
of the Restricted Stock Unit Award as it, in its sole discretion, deems
appropriate.


 


(iii)                            Payment. 
A Restricted Stock Unit Award may be settled by the delivery of shares
of Common Stock, their cash equivalent, any combination thereof or in any other
form of consideration, as determined by the Board and contained in the
Restricted Stock Unit Award Agreement.


 


(iv)                               Additional
Restrictions.  At the time of the grant of a Restricted
Stock Unit Award, the Board, as it deems appropriate, may impose such
restrictions or conditions that delay the delivery of the shares of Common
Stock (or their cash equivalent) subject to a Restricted Stock Unit Award to a
time after the vesting of such Restricted Stock Unit Award.


 


(v)                                   Dividend Equivalents.  Dividend equivalents may be credited in respect of
shares of Common Stock covered by a Restricted Stock Unit Award, as determined
by the Board and contained in the Restricted Stock Unit Award Agreement.  At the sole discretion of the Board, such
dividend equivalents may be converted into additional shares of Common Stock
covered by the Restricted Stock Unit Award in such manner as determined by the
Board.  Any additional shares covered by
the Restricted Stock Unit Award credited by reason of such dividend equivalents
will be subject to all of the same terms and conditions of the underlying
Restricted Stock Unit Award Agreement to which they relate.


 


(vi)                               Termination of
Participant’s Continuous Service.  Except as otherwise provided in the
applicable Restricted Stock Unit Award Agreement, such portion of the
Restricted Stock Unit Award that has not vested will be forfeited upon the
Participant’s termination of Continuous Service.


 


(c)                  Performance Awards.


 


(i)                                    Performance Stock Awards. 
A Performance Stock Award is a Stock Award that may vest or may be
exercised contingent upon the attainment during a Performance Period of certain
Performance Goals.  A Performance Stock
Award may, but need not, require the completion of a specified period of
Continuous Service.  The length of any
Performance Period, the Performance Goals to be achieved during the Performance
Period, and the measure of whether and to what degree such Performance Goals
have been attained shall be


 


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conclusively determined by the Committee, in its sole
discretion.  The maximum number of shares
covered by a Performance Stock Award that may be granted to any Participant in
a calendar year shall not exceed 3,500,000 shares of Common Stock.  The Board may provide for or, subject to such
terms and conditions as the Board may specify, may permit a Participant to
elect for, the payment of any Performance Stock Award to be deferred to a
specified date or event.  In addition, to
the extent permitted by applicable law and the applicable Award Agreement, the
Board may determine that cash may be used in payment of Performance Stock
Awards.


 


(ii)                                Performance Cash Awards. 
A Performance Cash Award is a cash award that may be paid contingent
upon the attainment during a Performance Period of certain Performance
Goals.  A Performance Cash Award may also
require the completion of a specified period of Continuous Service.  At the time of grant of a Performance Cash
Award, the length of any Performance Period, the Performance Goals to be
achieved during the Performance Period, and the measure of whether and to what
degree such Performance Goals have been attained shall be conclusively
determined by the Committee, in its sole discretion.  In any calendar year, the Committee may not
grant to any Participant a Performance Cash Award that has a maximum value that
may be paid to such Participant in excess of $3,000,000.  The Board may provide for or, subject to such
terms and conditions as the Board may specify, may permit a Participant to
elect for, the payment of any Performance Cash Award to be deferred to a
specified date or event.  The Committee
may specify the form of payment of Performance Cash Awards, which may be cash
or other property, or may provide for a Participant to have the option for his
or her Performance Cash Award, or such portion thereof as the Board may
specify, to be paid in whole or in part in cash or other property.


 


(iii)                            Section 162(m) Compliance. 
Unless otherwise permitted in compliance with the requirements of Section 162(m) of
the Code with respect to an Award intended to qualify as “performance-based
compensation” thereunder, the Committee shall establish the Performance Goals
applicable to, and the formula for calculating the amount payable under, the
Award no later than the earlier of (a) the date 90 days after the
commencement of the applicable Performance Period, or (b) the date on
which 25% of the Performance Period has elapsed, and in any event at a time
when the achievement of the applicable Performance Goals remains substantially
uncertain.  Prior to the payment of any
compensation under an Award intended to qualify as “performance-based
compensation” under Section 162(m) of the Code, the Committee shall
certify the extent to which any Performance Goals and any other material terms
under such Award have been satisfied (other than in cases where such relate
solely to the increase in the value of the Common Stock).  Notwithstanding satisfaction of any completion
of any Performance Goals, to the extent specified at the time of grant of an
Award to “covered employees” within the meaning of Section 162(m) of
the Code, the number of Shares, Options, cash or other benefits granted,
issued, retainable and/or vested under an Award on account of satisfaction of
such Performance Goals may be reduced by the Committee on the basis of such
further considerations as the Committee, in its sole discretion, shall
determine.


 


(d)                  Other Stock Awards. 
Other forms of Stock Awards valued in whole or in part by reference to,
or otherwise based on, Common Stock, including the appreciation in value
thereof (e.g., options or stock rights with an
exercise price or strike price less than 100% of the Fair Market Value of the
Common Stock at the time of grant) may be granted either alone or in addition
to Stock Awards provided for under Section 5 and the preceding provisions
of this Section 6.  Subject to the
provisions of the Plan, the Board shall have sole and complete authority to
determine the persons to whom and the time or times at which such Other Stock
Awards will be granted, the number of


 


10
















 


shares of Common Stock (or the cash equivalent
thereof) to be granted pursuant to such Other Stock Awards and all other terms
and conditions of such Other Stock Awards.


 


7.                       COVENANTS OF THE COMPANY.


 


(a)                  Availability of Shares. 
During the terms of the Stock Awards, the Company shall keep available
at all times the number of shares of Common Stock reasonably required to
satisfy such Stock Awards.


 


(b)                  Securities Law Compliance. 
The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
grant Stock Awards and to issue and sell shares of Common Stock upon exercise
of the Stock Awards; provided, however,
that this undertaking shall not require the Company to register under the
Securities Act the Plan, any Stock Award or any Common Stock issued or issuable
pursuant to any such Stock Award.  If,
after reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority that counsel for the Company
deems necessary for the lawful issuance and sale of Common Stock under the
Plan, the Company shall be relieved from any liability for failure to issue and
sell Common Stock upon exercise of such Stock Awards unless and until such
authority is obtained.  A Participant
shall not be eligible for the grant of a Stock Award or the subsequent issuance
of Common Stock pursuant to the Stock Award if such grant or issuance would be
in violation of any applicable securities law.


 


(c)                  No Obligation to Notify or
Minimize Taxes.  The Company shall have no duty or
obligation to any Participant to advise such holder as to the time or manner of
exercising such Stock Award. 
Furthermore, the Company shall have no duty or obligation to warn or otherwise
advise such holder of a pending termination or expiration of a Stock Award or a
possible period in which the Stock Award may not be exercised.  The Company has no duty or obligation to
minimize the tax consequences of a Stock Award to the holder of such Stock Award.


 


8.                       MISCELLANEOUS.


 


(a)                  Use of Proceeds from
Sales of Common Stock.  Proceeds from the sale of shares of
Common Stock pursuant to Stock Awards shall constitute general funds of the
Company.


 


(b)                  Corporate Action
Constituting Grant of Stock Awards.  Corporate
action constituting a grant by the Company of a Stock Award to any Participant
shall be deemed completed as of the date of such corporate action, unless
otherwise determined by the Board, regardless of when the instrument,
certificate, or letter evidencing the Stock Award is communicated to, or
actually received or accepted by, the Participant.


 


(c)                  Stockholder Rights. 
No Participant shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares of Common Stock subject to
such Stock Award unless and until (i) such Participant has satisfied all
requirements for exercise of the Stock Award pursuant to its terms, if
applicable, and (ii) the issuance of the Common Stock subject to such
Stock Award has been entered into the books and records of the Company.


 


(d)                  No Employment or Other Service
Rights.  Nothing in the Plan, any Stock Award
Agreement or any other instrument executed thereunder or in connection with any
Award granted pursuant thereto shall confer upon any Participant any right to
continue to serve the Company or an Affiliate in the capacity in effect at the
time the Stock Award was granted or shall affect the right of the Company or an
Affiliate to terminate (i) the employment of an Employee with or without
notice


 


11

















 


and with or without cause, (ii) the service of a
Consultant pursuant to the terms of such Consultant’s agreement with the
Company or an Affiliate, or (iii) the service of a Director pursuant to
the Bylaws of the Company or an Affiliate, and any applicable provisions of the
corporate law of the state in which the Company or the Affiliate is
incorporated, as the case may be.


 


(e)                  Incentive Stock Option $100,000
Limitation.  To the extent that the aggregate Fair Market
Value (determined at the time of grant) of Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by any Optionholder
during any calendar year (under all plans of the Company and any Affiliates)
exceeds $100,000, the Options or portions thereof that exceed such limit
(according to the order in which they were granted) shall be treated as
Nonstatutory Stock Options, notwithstanding any contrary provision of the
applicable Option Agreement(s).


 


(f)                    Investment Assurances. 
The Company may require a Participant, as a condition of exercising or
acquiring Common Stock under any Stock Award, (i) to give written
assurances satisfactory to the Company as to the Participant’s knowledge and
experience in financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that he or she is capable of
evaluating, alone or together with the purchaser representative, the merits and
risks of exercising the Stock Award; and (ii) to give written assurances
satisfactory to the Company stating that the Participant is acquiring Common
Stock subject to the Stock Award for the Participant’s own account and not with
any present intention of selling or otherwise distributing the Common
Stock.  The foregoing requirements, and
any assurances given pursuant to such requirements, shall be inoperative if (A) the
issuance of the shares upon the exercise or acquisition of Common Stock under
the Stock Award has been registered under a then currently effective
registration statement under the Securities Act, or (B) as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then applicable
securities laws.  The Company may, upon
advice of counsel to the Company, place legends on stock certificates issued
under the Plan as such counsel deems necessary or appropriate in order to
comply with applicable securities laws, including legends restricting the
transfer of the Common Stock.


 


(g)                 Withholding Obligations. 
Unless prohibited by the terms of a Stock Award Agreement, the Company
may, in its sole discretion, satisfy any federal, state or local tax
withholding obligation relating to an Award by any of the following means or by
a combination of such means:  (i) causing
the Participant to tender a cash payment; (ii) withholding shares of
Common Stock from the shares of Common Stock issued or otherwise issuable to
the Participant in connection with the Award; provided,
however, that no shares of Common Stock are withheld with a value
exceeding the minimum amount of tax required to be withheld by law (or such
lesser amount as may be necessary to avoid classification of the Stock Award as
a liability for financial accounting purposes); (iii) withholding cash
from an Award settled in cash; (iv) withholding payment from any amounts
otherwise payable to the Participant; or (v) by such other method as may
be set forth in the Award Agreement.


 


(h)                 Electronic Delivery. 
Any reference herein to a “written” agreement or document shall include
any agreement or document delivered electronically or posted on the Company’s
intranet.


 


(i)                    Deferrals. 
To the extent permitted by applicable law, the Board, in its sole
discretion, may determine that the delivery of Common Stock or the payment of
cash, upon the exercise, vesting or settlement of all or a portion of any Award
may be deferred and may establish programs and procedures for deferral
elections to be made by Participants. 
Deferrals by Participants will be


 


12

















 


made in accordance with Section 409A of the
Code.  Consistent with Section 409A
of the Code, the Board may provide for distributions while a Participant is
still an employee or otherwise providing services to the Company.  The Board is authorized to make deferrals of
Awards and determine when, and in what annual percentages, Participants may
receive payments, including lump sum payments, following the Participant’s
termination of Continuous Service, and implement such other terms and
conditions consistent with the provisions of the Plan and in accordance with
applicable law.


 


(j)                    Compliance with Section 409A.  To the extent that the Board determines that any Award
granted hereunder is subject to Section 409A of the Code, the Award
Agreement evidencing such Award shall incorporate the terms and conditions necessary to
avoid the consequences specified in Section 409A(a)(1) of the Code. 
To the extent applicable, the Plan and Award Agreements shall be
interpreted in accordance with Section 409A of the Code.  Notwithstanding anything to
the contrary in this Plan (and unless the Award Agreement specifically provides
otherwise), if the Shares are publicly traded and a Participant holding an
Award that constitutes “deferred compensation” under Section 409A of the
Code is a “specified employee” for purposes of Section 409A of the Code,
no distribution or payment of any amount shall be made upon a “separation from service” before a date
that is six months following the date of such Participant’s “separation from
service” (as defined in Section 409A of the Code without regard to
alternative definitions thereunder) or, if earlier, the date of the Participant’s
death.


 


9.                       ADJUSTMENTS FOR CHANGES IN COMMON STOCK
AND CERTAIN OTHER EVENTS


 


(a)                  Changes in Capitalization. 
In the event of a Capitalization Adjustment, the Board shall
appropriately and proportionately adjust: 
(i) the class(es) and maximum number of securities subject to the
Plan pursuant to Section 3(a), (ii) the class(es) and maximum number
of securities that may be issued pursuant to the exercise of Incentive Stock
Options pursuant to Section 3(c), (iii) the class(es) and maximum
number of securities that may be awarded to any person pursuant to Sections 4(c) and
6(c)(i), and (iv) the class(es) and number of securities and price per
share of stock subject to outstanding Stock Awards.  The Board shall make such adjustments, and
its determination shall be final, binding and conclusive.


 


(b)                  Reorganization and Change in
Control Events


 


(i)                 Effect on Options


 


(1)                                                 Reorganization Event. 
Upon the occurrence of a Reorganization Event (regardless of whether
such event also constitutes a Change in Control Event), or the execution by the
Company of any agreement with respect to a Reorganization Event (regardless of
whether such event will result in a Change in Control Event), the Board shall
provide that all outstanding Options shall be assumed, or equivalent options
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof); provided that
if such Reorganization Event also constitutes a Change in Control Event, except
to the extent specifically provided to the contrary in the instrument
evidencing any Option or any other agreement between a Participant and the
Company, such assumed or substituted options shall become immediately
exercisable in full if, following the consummation of such transaction but on
or prior to the first anniversary of the date of the consummation of the
Reorganization Event, the Participant’s employment with the Company or the
acquiring or succeeding corporation is terminated for Good Reason by the Participant
or is terminated without Cause by the Company or the acquiring or succeeding
corporation.


 


13

















 


For purposes hereof, an Option shall be considered
to be assumed if, following consummation of the Reorganization Event, the
Option confers the right to purchase, for each share of Common Stock subject to
the Option immediately prior to the consummation of the Reorganization Event,
the consideration (whether cash, securities or other property) received as a result
of the Reorganization Event by holders of Common Stock for each share of Common
Stock held immediately prior to the consummation of the Reorganization Event
(and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
Common Stock); provided that if
the consideration received as a result of the Reorganization Event is not
solely common stock of the acquiring or succeeding corporation (or an affiliate
thereof), the Company may, with the consent of the acquiring or succeeding
corporation, provide for the consideration to be received upon the exercise of
Options to consist solely of common stock of the acquiring or succeeding
corporation (or an affiliate thereof) equivalent in fair market value to the
per share consideration received by holders of outstanding shares of Common
Stock as a result of the Reorganization Event.


 


Notwithstanding the foregoing, if the acquiring or
succeeding corporation (or an affiliate thereof) does not agree to assume, or
substitute for, such Options, the Board shall, upon written notice to the
Participants, provide that, subject to the consummation of the Reorganization
Event, all then unexercised Options will become exercisable in full as of a specified
time prior to the Reorganization Event and will terminate immediately prior to
the consummation of such Reorganization Event, except to the extent exercised
by the Participants before the consummation of such Reorganization Event; provided that in the event of a Reorganization Event under
the terms of which holders of Common Stock will receive upon consummation
thereof a cash payment for each share of Common Stock surrendered pursuant to
such Reorganization Event (the “Acquisition Price”),
then the Board may instead provide that all outstanding Options shall terminate
upon consummation of such Reorganization Event and that each Participant shall
receive, subject to the consummation of the Reorganization Event, in exchange
therefor, a cash payment equal to the amount (if any) by which (1) the
Acquisition Price multiplied by the number of shares of Common Stock subject to
such outstanding Options (whether or not then exercisable), exceeds (2) the
aggregate exercise price of such Options.


 


(2)                                                 Change in Control Event
that is not a Reorganization Event.  Upon the occurrence of a Change in Control
Event that does not also constitute a Reorganization Event, except to the
extent specifically provided to the contrary in the instrument evidencing any
Option or any other agreement between a Participant and the Company, each such
Option shall be immediately exercisable in full if, on or prior to the first
anniversary of the date of the consummation of the Change in Control Event, the
Participant’s employment with the Company or the acquiring or succeeding
corporation is terminated for Good Reason by the Participant or is terminated
without Cause by the Company or the acquiring or succeeding corporation.


 


(ii)             Effect on Stock Awards Other than
Options


 


(1)                                                 Reorganization Event that
is not a Change in Control Event.  Upon the occurrence of a Reorganization Event
that is not a Change in Control Event, the repurchase and other rights of the
Company under each outstanding Stock Award other than an Option shall inure to the
benefit of the Company’s successor and shall apply to the cash, securities or
other property that the Common Stock was converted into or


 


14

















 


exchanged for pursuant to such Reorganization Event in
the same manner and to the same extent as they applied to the Common Stock
subject to such Stock Award.


 


(2)                                                 Change in Control Event. 
Upon the
occurrence of a Change in Control Event (regardless of whether such event also
constitutes a Reorganization Event), except to the extent specifically provided
to the contrary in the instrument evidencing any Stock Award other than an
Option or any other agreement between a Participant and the Company, each such
Stock Award shall immediately become free from all conditions or restrictions
if, on or prior to the first anniversary of the date of the consummation of the
Change in Control Event, the Participant’s employment with the Company or the
acquiring or succeeding corporation is terminated for Good Reason by the
Participant or is terminated without Cause by the Company or the acquiring or
succeeding corporation.


 


10.                TERMINATION OR SUSPENSION OF THE PLAN.


 


(a)                  Plan Term. 
The Board may suspend or terminate the Plan at any time.  Unless terminated sooner by the Board, the Plan
shall automatically terminate on the day before the tenth anniversary of the
earlier of (i) the date the Plan is adopted by the Board and (ii) the
date the Plan is approved by the stockholders of the Company.  No Awards may be granted under the Plan while
the Plan is suspended or after it is terminated.


 


(b)                  No Impairment of Rights. 
Suspension or termination of the Plan shall not impair rights and
obligations under any Award granted while the Plan is in effect except with the
written consent of the affected Participant.


 


11.                EFFECTIVE DATE OF PLAN.


 


This Plan shall become effective on the
Effective Date.


 


12.                CHOICE OF LAW.


 


The law of the Commonwealth of Massachusetts
shall govern all questions concerning the construction, validity and
interpretation of this Plan, without regard to that state’s conflict of laws
rules.  Any action, suit or other legal
proceeding that is commenced to resolve any matter arising under or relating to
any provision of the Plan (or any agreement issued or entered into in connection
therewith) shall be commenced only in a court of the Commonwealth of
Massachusetts (or, if appropriate, a federal court located within
Massachusetts), and the Company and each Participant consents to the
jurisdiction of such a court.  The
Company and each Participant irrevocably waive any right to a trial by jury in
any action, suit or other legal proceeding arising under or relating to any
provision of the Plan (or any agreement issued or entered into in connection
therewith).


 


13.                DEFINITIONS.


 


As used in the Plan, the following
definitions shall apply to the capitalized terms indicated below:


 


(a)                  “Affiliate”
means, at the time of determination, any “parent” or “subsidiary” of the
Company as such terms are defined in Rule 405 of the Securities Act.  The Board shall have the authority to
determine the time or times at which “parent” or “subsidiary” status is
determined within the foregoing definition.


 


15

















 


(b)                  “Award”
means a Stock Award or a Performance Cash Award.


 


(c)                  “Award Agreement”
means a written agreement between the Company and a Participant evidencing the
terms and conditions of an Award.


 


(d)                  “Board”
means the Board of Directors of the Company.


 


(e)                  “Capitalization Adjustment”
means any change that is made in, or other events that occur with respect to,
the Common Stock subject to the Plan or subject to any Stock Award after the
Effective Date without the receipt of consideration by the Company through
merger, consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, large nonrecurring cash
dividend, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or any similar equity restructuring
transaction, as that term is used in Financial Accounting Standards Board
Accounting Standards Codification 718 “Compensation—Stock Compensation.”  Notwithstanding the foregoing, the conversion
of any convertible securities of the Company shall not be treated as a
Capitalization Adjustment.


 


(f)                    “Cause” means any (i) willful failure by
the Participant, which failure is not cured within 30 days of written notice to
the Participant from the Company, to perform his or her material
responsibilities to the Company, or (ii) willful misconduct by the
Participant that affects the business reputation of the Company.


 


(g)                 “Change in Control Event”
means:


 


(i)                                    the acquisition by an individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) (a “Person”) of
beneficial ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 50% or more of either (x) the then-outstanding
shares of common stock of the Company (the “Outstanding
Company Common Stock”) or (y) the combined voting power of
the then-outstanding securities of the Company entitled to vote generally in
the election of directors (the “Outstanding Company Voting
Securities”); provided that
for purposes of this subsection (i), the following acquisitions shall not
constitute a Change in Control Event:  (A) any
acquisition directly from the Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible
into or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security acquired
such security directly from the Company or an underwriter or agent of the
Company), (B) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company or (C) any acquisition by any corporation pursuant to a
Business Combination (as defined in subsection (iii) of this Section 13(g))
that complies with clauses (x) and (y) of subsection (iii) of
this Section 13(g); or


 


(ii)                                such time as the Continuing Directors do
not constitute a majority of the Board (or, if applicable, the Board of
Directors of a successor corporation to the Company), where the term “Continuing Director” means at any
date a member of the Board (x) who was a member of the Board on the date
of the initial adoption of this Plan by the Board or (y) who was nominated
or elected subsequent to such date by at least a majority of the directors who
were Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election, provided that there
shall be excluded from


 


16

















 


this clause (y) any individual whose initial
assumption of office occurred as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents, by or on behalf of a person
other than the Board; or


 


(iii)                            the consummation of a merger,
consolidation, reorganization, recapitalization or share exchange involving the
Company or a sale or other disposition of all or substantially all of the
assets of the Company (a “Business Combination”),
unless, immediately following such Business Combination, each of the following
two conditions is satisfied:  (x) all
or substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include a
corporation that as a result of such transaction owns the Company or
substantially all of the Company’s assets either directly or through one or
more subsidiaries) (such resulting or acquiring corporation is referred to
herein as the “Acquiring Corporation”) in
substantially the same proportions as their ownership of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, respectively,
immediately prior to such Business Combination, excluding for all purposes of this clause (x) any
shares of common stock or other securities of the Acquiring Corporation
attributable to any such individual’s or entity’s ownership of securities other
than Outstanding Company Common Stock or Outstanding Company Voting Securities
immediately prior to the Business Combination); and (y) no Person
(excluding the Acquiring Corporation or any employee benefit plan (or related
trust) maintained or sponsored by the Company or by the Acquiring Corporation)
beneficially owns, directly or indirectly, 50% or more of the then-outstanding
shares of common stock of the Acquiring Corporation, or of the combined voting
power of the then-outstanding securities of such corporation entitled to vote
generally in the election of directors (except to the extent that such
ownership existed prior to the Business Combination); or


 


(iv)                               the liquidation or dissolution of the
Company.


 


(h)                 “Code” means
the Internal Revenue Code of 1986, as amended, including any applicable
regulations and guidance thereunder.


 


(i)                    “Committee”
means a committee of one or more Directors to whom authority has been delegated
by the Board in accordance with Section 2(c).


 


(j)                    “Common Stock”
means the common stock of the Company.


 


(k)                “Company”
means Aspen Technology, Inc., a Delaware corporation.


 


(l)                    “Consultant” means any person, including an advisor,
who is (i) engaged by the Company or an Affiliate to render consulting or
advisory services and is compensated for such services or (ii) serving as
a member of the board of directors of an Affiliate and is compensated for such
services.  However, service solely as a
Director, or payment of a fee for such service, shall not cause a Director to
be considered a “Consultant” for purposes of the Plan.  Notwithstanding the foregoing, a person is
treated as a Consultant under this Plan only if a Form S-8 Registration
Statement under the Securities Act is available to register the sale of the
Company’s securities to such person.


 


17

















 


(m)              “Continuous Service”
means that the Participant’s service with the Company or an Affiliate, whether
as an Employee, Director or Consultant, is not interrupted or terminated.  A change in the capacity in which the
Participant renders service to the Company or an Affiliate as an Employee,
Consultant or Director or a change in the entity for which the Participant
renders such service, provided that
there is no interruption or termination of the Participant’s service with the
Company or an Affiliate, shall not terminate a Participant’s Continuous
Service; provided, however, if
the Entity for which a Participant is rendering services ceases to qualify as
an Affiliate, as determined by the Board, in its sole discretion, such
Participant’s Continuous Service shall be considered to have terminated on the
date such Entity ceases to qualify as an Affiliate.  To the extent permitted by law, the Board or
the chief executive officer of the Company, in that party’s sole discretion,
may determine whether Continuous Service shall be considered interrupted in the
case of (i) any leave of absence approved by the Board or Chief Executive
Officer, including sick leave, military leave or any other personal leave, or (ii) transfers
between the Company, an Affiliate, or their successors.  Notwithstanding the foregoing, a leave of
absence shall be treated as Continuous Service for purposes of vesting in a
Stock Award only to such extent as may be provided in the Company’s leave of
absence policy, in the written terms of any leave of absence agreement or
policy applicable to the Participant, or as otherwise required by law.


 


(n)                 “Covered Employee”
shall have the meaning provided in Section 162(m)(3) of the Code.


 


(o)                  “Director”
means a member of the Board.


 


(p)                  “Disability”
means, with respect to a Participant, the inability of such Participant to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of
not less than 12 months, as provided in Sections 22(e)(3) and
409A(a)(2)(c)(i) of the Code, and shall be determined by the Board on the
basis of such medical evidence as the Board deems warranted under the
circumstances.


 


(q)                  “Effective Date” means the effective date of
this Plan document, which is the date of the annual meeting of stockholders of
the Company held in 2010, provided that
this Plan is approved by the Company’s stockholders at such meeting.


 


(r)                  “Employee” means any person employed by the Company
or an Affiliate.  Service solely as a
Director, or payment of a fee for such services, shall not cause a Director to
be considered an “Employee” for purposes of the Plan.


 


(s)                  “Entity”
means a corporation, partnership, limited liability company or other entity.


 


(t)                    “Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.


 


(u)                 “Fair Market Value”
means, as of any date, the value of the Common Stock determined as follows:


 


(i)                                    If the Common Stock is listed on any
established stock exchange or traded on any established market, the Fair Market
Value of a share of Common Stock shall be the closing sales price for such
stock as quoted on such exchange or market (or the exchange or market with the
greatest volume of trading in the Common Stock) on the date of determination
(or if such day of determination does not fall on a market trading day, then the
last market trading day prior to the day of determination), as reported in a
source the Board deems reliable.


 


18

















 


(ii)                                Unless otherwise provided by the Board,
if there is no closing sales price for the Common Stock on the date of
determination, then the Fair Market Value shall be the closing selling price on
the last preceding date for which such quotation exists.


 


(iii)                            In the absence of such markets for the
Common Stock, the Fair Market Value shall be determined by the Board in good
faith and in a manner that complies with Sections 409A and 422 of the Code.


 


(v)                   “Good Reason” means any significant diminution in the
Participant’s title, authority, or responsibilities from and after such
Reorganization Event or Change in Control Event, as the case may be, or any
reduction in the annual cash compensation payable to the Participant from and
after such Reorganization Event or Change in Control Event, as the case may be.


 


(w)                “Incentive Stock Option”
means an option granted pursuant to Section 5 of the Plan that is intended
to be, and qualifies as, an “incentive stock option” within the meaning of Section 422
of the Code.


 


(x)                  “Non-Employee Director”  means a Director who either (i) is not a current
employee or officer of the Company or an Affiliate, does not receive
compensation, either directly or indirectly, from the Company or an Affiliate
for services rendered as a consultant or in any capacity other than as a
Director (except for an amount as to which disclosure would not be required
under Item 404(a) of Regulation S-K promulgated pursuant to the Securities
Act (“Regulation S-K”)),
does not possess an interest in any other transaction for which disclosure
would be required under Item 404(a) of Regulation S-K, and is not engaged
in a business relationship for which disclosure would be required pursuant to
Item 404(b) of Regulation S-K; or (ii) is otherwise considered a
“non-employee director” for purposes of Rule 16b-3.


 


(y)                  “Nonstatutory Stock Option”
means any option granted pursuant to Section 5 of the Plan that does not
qualify as an Incentive Stock Option.


 


(z)                  “Officer”
means a person who is an officer of the Company within the meaning of Section 16
of the Exchange Act.


 


(aa)            “Option”
means an Incentive Stock Option or a Nonstatutory Stock Option to purchase
shares of Common Stock granted pursuant to the Plan.


 


(bb)            “Option Agreement”
means a written agreement between the Company and an Optionholder evidencing
the terms and conditions of an Option grant. 
Each Option Agreement shall be subject to the terms and conditions of
the Plan.


 


(cc)            “Optionholder”
means a person to whom an Option is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Option.


 


(dd)            “Other Stock Award” means an award based in whole or in part
by reference to the Common Stock that is granted pursuant to the terms and
conditions of Section 6(d).


 


(ee)            “Other Stock Award Agreement”  means a written agreement between the
Company and a holder of an Other Stock Award evidencing the terms and
conditions of an Other Stock Award grant. 
Each Other Stock Award Agreement shall be subject to the terms and
conditions of the Plan.


 


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(ff)                “Outside Director”
means a Director who either (i) is not a current employee of the Company
or an “affiliated corporation” (within the meaning of Treasury Regulations
promulgated under Section 162(m) of the Code), is not a former
employee of the Company or an “affiliated corporation” who receives
compensation for prior services (other than benefits under a tax-qualified
retirement plan) during the taxable year, has not been an officer of the
Company or an “affiliated corporation,” and does not receive remuneration from
the Company or an “affiliated corporation,” either directly or indirectly, in
any capacity other than as a Director, or (ii) is otherwise considered an “outside
director” for purposes of Section 162(m) of the Code.


 


(gg)          A person or Entity shall be deemed to “Own” or to have “Owned” securities if such person or
Entity, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares voting power, which
includes the power to vote or to direct the voting, with respect to such
securities.


 


(hh)          “Participant”
means a person to whom an Award is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Stock Award.


 


(ii)                “Performance Cash Award”
means an award of cash granted pursuant to the terms and conditions of Section 6(c)(ii).


 


(jj)                “Performance Criteria” means the one or more criteria that the
Board shall select for purposes of establishing the Performance Goals for a
Performance Period.  The Performance
Criteria that shall be used to establish such Performance Goals may be based on
any one of, or combination of, the following as determined by the Board:  (i) earnings (including earnings per
share and net earnings); (ii) earnings before interest, taxes and
depreciation; (iii) earnings before interest, taxes, depreciation and
amortization; (iv) total stockholder return; (v) return on equity or
average equity; (vi) return on sales, assets, equity, investment or
capital employed; (vii) stock price; (viii) margin (including gross
margin); (ix) pre-tax or after-tax income,; (x) operating income;
(xi) net operating profit after taxes; (xii) pre-tax profit; (xiii) operating
cash flow; (xiv) sales or revenue targets; (xv) increases in revenue or
product revenue; (xvi) expenses and cost reduction goals;
(xvii) improvement in or attainment of working capital levels; (xiii)
economic value added (or an equivalent metric); (xix) market share; (xx) cash
flow; (xxi) cash flow per share; (xxii) share price performance; (xxiii) debt
reduction; (xxiv) implementation or completion of projects or processes; (xxv)
customer satisfaction; (xxvi) stockholders’ equity; (xxvii) capital
expenditures; (xxiii) debt levels; (xxix) operating profit or net operating
profit; (xxx) workforce diversity; (xxxi) growth of net income, operating
income or earnings; (xxxii) billings; (xxxiii) regulatory compliance;
(xxxiv) improvement of financial ratings, (xxxv) achievement of balance
sheet or income statement objectives, or (xxxvi) to the extent that an Award is
not intended to comply with Section 162(m) of the Code, other measures of
performance selected by the Board.


 


(kk)        “Performance Goals” means, for a Performance Period, the one
or more goals established by the Board for the Performance Period based upon
the Performance Criteria.  Performance
Goals may be based on a Company-wide basis, with respect to one or more
business units, divisions, Affiliates, or business segments, and in either
absolute terms or relative to the performance of one or more
comparable companies or the performance of one or more relevant indices.  Unless specified otherwise by the Board (i) in
the Award Agreement at the time the Award is granted or (ii) in such other
document setting forth the Performance Goals at the time the Performance Goals
are established, the Board shall appropriately make adjustments in the method
of calculating the attainment of Performance Goals for a Performance Period as
follows:  (1) to exclude
restructuring and/or other nonrecurring charges; (2) to exclude exchange
rate effects, as applicable, for non-U.S. dollar denominated Performance Goals;
(3) to exclude the effects of changes to


 


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generally accepted
accounting principles; (4) to exclude the effects of any statutory
adjustments to corporate tax rates; (5) to exclude the effects of any “extraordinary
items” as determined under generally accepted accounting principles; (6) to
exclude the dilutive effects of acquisitions or joint ventures; (7) to
assume that any business divested by the Company achieved performance
objectives at targeted levels during the balance of a Performance Period
following such divestiture; (8) to exclude the effect of any change in the
outstanding shares of common stock of the Company by reason of any stock dividend
or split, stock repurchase, reorganization, recapitalization, merger,
consolidation, spin-off, combination or exchange of shares or other similar
corporate change, or any distributions to common shareholders other than
regular cash dividends; (9) to exclude the effects of stock based
compensation and/or the award of bonuses under the Company’s bonus plans; and (10) to
exclude the effect of any other unusual, non-recurring gain or loss or other
extraordinary item.  In addition, the
Board retains the discretion to reduce or eliminate the compensation or
economic benefit due upon attainment of Performance Goals and to define the
manner of calculating the Performance Criteria it selects to use for such
Performance Period.  Partial achievement
of the specified criteria may result in the payment or vesting corresponding to
the degree of achievement as specified in the Stock Award Agreement or the
written terms of a Performance Cash Award.


 


(ll)                “Performance Period” means the period of time selected by the
Board over which the attainment of one or more Performance Goals will be
measured for the purpose of determining a Participant’s right to and the
payment of a Stock Award or a Performance Cash Award.  Performance Periods may be of varying and
overlapping duration, at the sole discretion of the Board.


 


(mm)    “Performance Stock Award”
means a Stock Award granted under the terms and conditions of Section 6(c)(i).


 


(nn)          “Plan” means
this Aspen Technology, Inc. 2010 Equity Incentive Plan.


 


(oo)            “Reorganization
Event”
means the consummation of:


 


(i)                                    any merger or consolidation of the
Company with or into another entity as a result of which all of the Common
Stock is converted into or exchanged for the right to receive cash, securities
or other property;


 


(ii)                                any exchange of all of the Common Stock
for cash, securities or other property pursuant to a share exchange
transaction; or


 


(iii)                            any liquidation or dissolution of the
Company.


 


(pp)            “Restricted Stock Award” means an award of shares of Common Stock
that is granted pursuant to the terms and conditions of Section 6(a).


 


(qq)            “Restricted Stock Award Agreement” means a written agreement between the
Company and a holder of a Restricted Stock Award evidencing the terms and
conditions of a Restricted Stock Award grant. 
Each Restricted Stock Award Agreement shall be subject to the terms and
conditions of the Plan.


 


(rr)            “Restricted Stock Unit Award”  means a right to receive shares of Common
Stock that is granted pursuant to the terms and conditions of Section 6(b).


 


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(ss)            “Restricted Stock Unit Award
Agreement”
means
a written agreement between the Company and a holder of a Restricted Stock Unit
Award evidencing the terms and conditions of a Restricted Stock Unit Award grant.  Each Restricted Stock Unit Award Agreement
shall be subject to the terms and conditions of the Plan.


 


(tt)                “Rule 16b-3”
means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3,
as in effect from time to time.


 


(uu)          “Securities Act”
means the Securities Act of 1933, as amended.


 


(vv)              “Stock Appreciation Right” or “SAR”  means a right to receive the
appreciation on Common Stock that is granted pursuant to the terms and
conditions of Section 5.


 


(ww)        “Stock Appreciation Right Agreement” means a written agreement between the
Company and a holder of a Stock Appreciation Right evidencing the terms and
conditions of a Stock Appreciation Right grant. 
Each Stock Appreciation Right Agreement shall be subject to the terms
and conditions of the Plan.


 


(xx)            “Stock Award” means any right to receive Common Stock
granted under the Plan, including an Incentive Stock Option, a Nonstatutory
Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, a Stock
Appreciation Right, a Performance Stock Award or any Other Stock Award.


 


(yy)            “Stock Award Agreement” means a written agreement between the
Company and a Participant evidencing the terms and conditions of a Stock Award
grant.  Each Stock Award Agreement shall
be subject to the terms and conditions of the Plan.


 


(zz)            “Subsidiary”
means, with respect to the Company, (i) any corporation of which more than
50% of the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of
whether, at the time, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any
partnership, limited liability company or other entity in which the Company has a direct or indirect
interest (whether in the form of voting or participation in profits or capital
contribution) of more than 50%.


 


(aaa)      “Ten Percent Stockholder”
means a person who Owns (or is deemed to Own pursuant to Section 424(d) of
the Code) stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Company or any Affiliate.


 


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