**Exhibit 10.17**

 

****OPEN ENVIRONMENT CORPORATION****

 

****AMENDED AND RESTATED 1993 STOCK OPTION PLAN****

 

****February 10, 1995****

 

1.    Purpose.

 

The purpose of this plan ( the “Plan”) is to secure for Open Environment Corporation (the “Company”) and its shareholders the benefits arising from capital stock ownership by employees, officers and directors of, and consultants or advisors to, the Company and its parent andsubsidiary corporations who are expected to contribute to the Company’s future growth and success. Except where the context otherwise requires, the term “Company” shall include the parent and all present and future subsidiaries of theCompany as defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or replaced from time to time (the “Code”) .Those provisions of the Plan which make express reference to Section 422 shall apply only toIncentive Stock Options (as that term is defined in the Plan). 

 

2.    ********Type of Options and Administration.

 

(a)    Types of Options.  Options granted pursuant to the Plan may be either incentive stock options(“Incentive Stock Options”) meeting the requirements of Section 422 of the Code or Non-Statutory Options which are not intended to meet the requirements of Section 422 of the Code (“Non-Statutory Options”) . 

 

(b)    Administration.

 

(i)    The Plan will beadministered by the Board of Directors of the Company, whose construction and interpretation of the terms and provisions of the Plan shall be final and conclusive. The Board of Directors may in its sole discretion grant options to purchase shares ofthe Company’s Common Stock (“Common Stock” ) and issue shares upon exercise of such options as provided in the Plan. The Board shall have authority, subject to the express provisions of the Plan, to construe the respective optionagreements and the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to determine the terms and provisions of the respective option agreements, which need not be identical, and to make all other determinations whichare, in the judgment of the Board of Directors, necessary or desirable for the administration of the Plan. The Board of Directors may correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any option agreement inthe manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. No director or person acting pursuant to authority delegated by the Board of Directors shall be liablefor any action or determination under the Plan made in good faith. 

 

(ii)    The Board of Directors may, to the full extent permitted by or consistent with applicable laws or regulations and Section 3(b) of this Plan delegate any or all of its powers under the Plan to acommittee (the “Committee”) appointed by the 

 

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Board of Directors, and if the Committee is so appointed all references to the Board of Directors in the Plan shall mean and relate to suchCommittee. 

 

(c)    Applicability of Rule 16b-3.  Those provisions of the Plan which make express reference to Rule 16b-3 promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”),or any successor rule (“Rule 16b-3”), or which are required in order for certain option transactions to qualify for exemption under Rule 16b-3, shall apply only to such persons as are required to file reports under Section 16(a) ofthe Exchange Act (a “Reporting Person”). 

 
3. Eligibility.
 

(a)    General.  Options may be granted to persons who are, at the time of grant, employees, officersor directors of, or consultants or advisors to, the Company; provided, that the class of employees to whom Incentive Stock Options may be granted shall be limited to all employees of the Company. A person who has been granted an option may,if he or she is otherwise eligible, be granted additional options if the Board of Directors shall so determine. Subject to adjustment as provided in Section 15 below, the maximum number of shares with respect to which options may be granted to anyemployee under the Plan shall not exceed 700,000 shares of common stock during the ten-year term of the Plan. For the purpose of calculating such maximum number, (a) an option shall continue to be treated as outstanding notwithstanding itsrepricing, cancellation or expiration and (b) the repricing of an outstanding option or the issuance of a new option in substitution for a cancelled option shall be deemed to constitute the grant of a new additional option separate from the originalgrant of the option that is repriced or cancelled. 

 

(b)    Grant of Options to Directors and Officers.  From and after the registration of the Common Stock of the Company under the Exchange Act, the selection of a director or an officer (as theterms “director” and “officer” are defined for purposes of Rule 16b-3) as a recipient of an option, the timing of the option grant, the exercise price of the option and the number of shares subject to the option shall bedetermined either (i) by the Board of Directors, of which all members shall be “disinterested persons” (as hereinafter defined), or (ii) by two or more directors having full authority to act in the matter, each of whom shall be a“disinterested person.” For the purposes of the Plan, a director shall be deemed to be a “disinterested person” only if such person qualifies as a “disinterested person” within the meaning of Rule 16b-3, as such term isinterpreted from time to time. 

 
4. Stock Subject to Plan.
 

Subject to adjustment as provided in Section 15 below, the maximum number of shares of Common Stock which may be issued and sold under thePlan is 1,589,000 shares. If an option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for subsequent option grants underthe Plan. If shares issued upon exercise of an option under the Plan are tendered to the Company in payment of 

 

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the exercise price of an option granted under the Plan, such tendered shares shall again be available for subsequent option grants under thePlan; provided, that in no event shall such shares be made available for issuance to Reporting Persons or pursuant to exercise of Incentive Stock Options. 

 
5. Forms of Option Agreements.
 

As a condition to the grant of an option under the Plan, each recipient of an option shall execute an option agreement in such form notinconsistent with the Plan as may be approved by the Board of Directors. Such option agreements may differ among recipients. 

 
6. Purchase Price.
 

(a)    General.    Subject to Section 3(b), the purchase price per share of stockdeliverable upon the exercise of an option shall be determined by the Board of Directors, provided, however, that in the case of an Incentive Stock Option, the exercise price shall not be less than 100% of the fair market value of suchstock, as determined by the Board of Directors, at the time of grant of such option, or less than 110% of such fair market value in the case of options described in Section 11(b) . 

 

(b)    Payment of Purchase Price.    Options granted under thePlan may provide for the payment of the exercise price by delivery of cash or a check to the order of the Company in an amount equal to the exercise price of such options, or, to the extent provided in the applicable option agreement, (i) bydelivery to the Company of shares of Common Stock of the Company already owned by the optionee having a fair market value equal in amount to the exercise price of the options being exercised or (ii) by any other means (including, without limitation,by delivery of a promissory note of the optionee payable on such terms as are specified by the Board of Directors) which the Board of Directors determines are consistent with the purpose of the Plan and with applicable laws and regulations(including, without limitation, the provisions of Regulation T promulgated by the Federal Reserve Board). The fair market value of any shares of the Company’s Common Stock or other non-cash consideration which maybe delivered upon exercise ofan option shall be determined by the Board of Directors. 

 
7. Option Period.
 

Each option and all rights thereunder shall expire on such date as shall be set forth in the applicable option agreement, except that, inthe case of an Incentive Stock Option, such date shall not be later than ten years after the date on which the option is granted and, in all cases, options shall be subject to earlier termination as provided in the Plan. 

 
8. Exercise of Options.
 

Each option granted under the Plan shall be exercisable either in full or in installments at such time or times and during such period asshall be set forth in the agreement evidencing such option, subject to the provisions of the Plan. 

 

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9. Nontransferability of Options.
 

Options shall not be assignable or transferable by the person to whom they are granted, either voluntarily or by operation of law, exceptby will or the laws of descent and distribution, and, during the life of the optionee, shall be exercisable only by the optionee; provided, however, that Non-Statutory Options may be transferred pursuant to a qualified domestic relations order (asdefined in Rule 16b-3). 

 
10. Effect of Termination of Employment or Other Relationship.
 

Except as provided in Section 11(d) with respect to Incentive Stock Options, and subject to the provisions ofthe Plan, the Board of Directors shall determine the period of time during which an optionee may exercise an option following (i) the termination of the optionee’s employment or other relationship with the Company or (ii) the death ordisability of the optionee. Such periods shall be set forth in the agreement evidencing such option. 

 
11. Incentive Stock Options.
 

Options granted under the Plan which are intended to be Incentive Stock Options shall be subject to the following additional terms andconditions: 

 

(a)    Express Designation.    All Incentive Stock Options granted under the Plan shall, at the time of grant, be specifically designated as such in the option agreement covering suchIncentive Stock Options. 

 

(b)    10% Shareholder.    If *any*employee to whom an Incentive Stock Option is to be granted under the Plan is, at the time of the grant of such option, the owner of stockpossessing more than 10% of the total combined voting power of all classes of stock of the Company (after taking into account the attribution of stock ownership rules of Section 424(d) of the Code), then the following special provisions shall beapplicable to the Incentive Stock Option granted to such individual: 

 

(i)    The purchase price per share of the Common Stock subject to such Incentive Stock Option shall not be less than 110% of the fair market value of one share of Common Stock at the time of grant; and

 

(ii)    the option exerciseperiod shall not exceed five years from the date of grant. 

 

(c)    Dollar Limitation.    For so long as the Code shall so provide, options granted to any employee under the Plan (and any other incentive stock option plans of the Company) whichare intended to constitute Incentive Stock Options shall not constitute Incentive Stock Options to the extent that such options, in the aggregate, become exercisable for the first time in any one calendar year for shares of Common Stock with anaggregate fair market value (determined as of the respective date or dates of grant) of more than $100,000. 

 

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(d)    Termination of Employment, Death or Disability.    No Incentive Stock Option may be exercised unless, at the time of such exercise, the optionee is, and has been continuouslysince the date of grant of his or her option, employed by the Company, except that: 

 

(i)    an Incentive Stock Option may be exercised within the period of three months after the date the optionee ceases to be an employee of the Company (or within such lesser periodas may be specified in the applicable option agreement), provided, that the agreement with respect to such option may designate a longer exercise period and that the exercise after such three-month period shall be treated as the exercise of anon-statutory option under the Plan; 

 

(ii)    if the optionee dies while in the employ of the Company, or within three months after the optionee ceases to be such an employee, the Incentive Stock Option may be exercised by the person to whom it istransferred by will or the laws of descent and distribution within the period of one year after the date of death (or within such lesser period as may be specified in the applicable option agreement); and 

 

(iii)    if the optionee becomes disabled(within the meaning of Section 22(e) (3) of the Code or any successor provision thereto) while in the employ of the Company, the Incentive Stock Option may be exercised within the period of one year after the date the optionee ceases to be such anemployee because of such disability (or within such lesser period as may be specified in the applicable option agreement). 

 

For all purposes of the Plan and any option granted hereunder, “employment” shall be defined in accordance with the provisions of Section1.421-7(h) of the Income Tax Regulations (or any successor regulations). Notwithstanding the foregoing provisions, no Incentive Stock Option may be exercised after its expiration date. 

 
12. Additional Provisions.
 

(a)    Additional Option Provisions.    The Board of Directors may, in its sole discretion,include additional provisions in option agreements covering options granted under the Plan, including without limitation restrictions on transfer, repurchase rights, commitments to pay cash bonuses, to make, arrange for or guaranty loans or totransfer other property to optionees upon exercise of options, or such other provisions as shall be determined by the Board of Directors; providedthat such additional provisions shall not be inconsistent with any other term orcondition of the Plan and such additional provisions shall not cause any Incentive Stock Option granted under the Plan to fail to qualify as an Incentive Stock Option within the meaning of Section 422 of the Code. 

 

(b)    Acceleration, Extension,Etc.    The Board of Directors may, in its sole discretion, (i) accelerate the date or dates on which all or any particular option or options granted under the Plan may be exercised or (ii) extend the dates during which all,or any particular, option or options granted under the Plan may be exercised. 

 

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13. General Restrictions.
 

(a)    Investment Representations.    The Company may require any person to whom an optionis granted, as a condition of exercising such option, to give written assurances in substance and form satisfactory to the Company to the effect that such person is acquiring the Common Stock subject to the option for his or her own account forinvestment and not with any present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate in order to comply with federal and applicable state securities laws, or withcovenants or representations made by the Company in connection with any public offering of its Common Stock. 

 

(b)    Compliance With Securities Laws.    Each option shall be subject to the requirementthat if, at any time, counsel to the Company shall determine that the listing, registration or qualification of the shares subject to such option upon any securities exchange or under any state or federal law, or the consent or approval of anygovernmental or regulatory body, or that the disclosure of non-public information or the satisfaction of any other condition is necessary as a condition of, or in connection with, the issuance or purchase of shares thereunder, such option may not beexercised, in whole or in part, unless such listing, registration, qualification, consent or approval, or satisfaction of such condition shall have been effected or obtained on conditions acceptable to the Board of Directors. Nothing herein shall bedeemed to require the Company to apply for or to obtain such listing, registration or qualification, or to satisfy such condition. 

 
14. Rights as a Shareholder.
 

The holder of an option shall have no rights as a shareholder with respect to any shares covered by the option (including, withoutlimitation, any rights to receive dividends or non-cash distributions with respect to such shares) until the date of issue of a stock certificate to him or her for such shares. No adjustment shall be made for dividends or other rights for which therecord date is prior to the date such stock certificate is issued. 

 
15. Adjustment Provisions for Recapitalizations and Related Transactions.
 

(a)    General.    If, through or as a result of any merger,consolidation, sale of all or substantially all of the assets of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction, (i) the outstanding shares of CommonStock are increased, decreased or exchanged for a different number or kind of shares or other securities of the Company, or (ii) additional shares or new or different shares or other securities of the Company or other non-cash assets are distributedwith respect to such shares of Common Stock or other securities, an appropriate and proportionate adjustment may be made in (x) the maximum number and kind of shares reserved for issuance under the Plan, (y) the number and kind of shares or othersecurities subject to any then outstanding options under the Plan, and (z) the price for each share subject to any then outstanding options 

 

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under the Plan, without changing the aggregate purchase price as to which such options remain exercisable. Notwithstanding the foregoing, noadjustment shall be made pursuant to this Section 15 if such adjustment would cause the Plan to fail to comply with Section 422 of the Code. 

 

(b)    Board Authority to Make Adjustments.    Any adjustments under this Section 15 willbe made by the Board of Directors, whose determination as to what adjustments, if any, will be made and the extent thereof will be final, binding and conclusive. No fractional shares will be issued under the Plan on account of any such adjustments.

 
16. Merger, Consolidation, Asset Sale, Liquidation, etc.
 

(a)    General.    In the event of a consolidation or merger or sale of all orsubstantially all of the assets of the Company in which outstanding shares of Common Stock are exchanged for securities, cash or other property of any other corporation or business entity or in the event of a liquidation of the Company, the Board ofDirectors of the Company, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to outstanding options: (i) provide that such options shall beassumed, or equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), provided that any such options substituted for Incentive Stock Options shall meet the requirements of Section 424(a) ofthe Code, (ii) upon written notice to the optionees, provide that all unexercised options will terminate immediately prior to the consummation of such transaction unless exercised by the optionee within a specified period following the date of suchnotice, (iii) in the event of a merger under the terms of which holders of the Common Stock of the Company will receive upon consummation thereof a cash payment for each share surrendered in the merger (the “Merger Price”), make or providefor a cash payment to the optionees equal to the difference between (A) the Merger Price times the number of shares of Common Stock subject to such outstanding options (to the extent then exercisable at prices not in excess of the Merger Price) and(B) the aggregate exercise price of all such outstanding options in exchange for the termination of such options, and (iv) provide that all or any outstanding options shall become exercisable in full immediately prior to such event. 

 

(b)    SubstituteOptions.    The Company may grant options under the Plan in substitution for options held by employees of another corporation who become employees of the Company, or a subsidiary of the Company, as the result of a merger orconsolidation of the employing corporation with the Company or a subsidiary of the Company, or as a result of the acquisition by the Company, or one of its subsidiaries, of property or stock of the employing corporation. The Company may direct thatsubstitute options be granted on such terms and conditions as the Board of Directors considers appropriate in the circumstances. 

 
17. No Special Employment Rights.
 

Nothing contained in the Plan or in ant option shall confer upon any optionee any 

 

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right with respect to the continuation of his or her employment by the Company or interfere in any way with the right of the Company at anytime to terminate such employment or to increase or decrease the compensation of the optionee. 

 
18. Other Employee Benefits.
 

Except as to plans which by their terms include such amounts as compensation, the amount of any compensation deemed to be received by anemployee as a result of the exercise of an option or the sale of shares received upon such exercise will not constitute compensation with respect to which any other employee benefits of such employee are determined, including, without limitation,benefits under any bonus, pension, profit-sharing, life insurance or salary continuation plan, except as otherwise specifically determined by the Board of Directors. 

 
19. Amendment of the Plan.
 

(a)    The Board of Directors may at any time, and from time to time, modify or amend the Plan in any respect, exceptthat if at any time the approval of the shareholders of the Company is required under Section 422 of the Code or any successor provision with respect to Incentive Stock Options, or under Rule 16b-3, the Board of Directors may not effect suchmodification or amendment without such approval. 

 

(b)    The termination or any modification or amendment of the Plan shall not, without the consent of an optionee, affect his or her rights under an option previously granted to him or her. With the consent of theoptionee affected, the Board of Directors may amend outstanding option agreements in a manner not inconsistent with the Plan. The Board of Directors shall have the right to amend or modify (i) the terms and provisions of the Plan and of anyoutstanding Incentive Stock Options granted under the Plan to the extent necessary to qualify any or all such options for such favorable federal income tax treatment (including deferral of taxation upon exercise) as may be afforded incentive stockoptions under Section 422 of the Code and (ii) the terms and provisions of the Plan and of any outstanding option to the extent necessary to ensure the qualification of the Plan under Rule 16b-3. 

 
20. Withholding.
 

(a)    The Company shall have the right to deduct from payments of any kind otherwise due to the optionee any federal,state or local taxes of any kind required by law to be withheld with respect to any shares issued upon exercise of options under the Plan. Subject to the prior approval of the Company, which may be withheld by the Company in its sole discretion, theoptionee may elect to satisfy such obligations, in whole or in part, (i) by causing the Company to withhold shares of Common Stock otherwise issuable pursuant to the exercise of an option or (ii) by delivering to the Company shares of Common Stockalready owned by the optionee. The shares so delivered or withheld shall have a fair market value equal to such withholding obligation. The fair market value of the shares used to satisfy such withholding obligation shall be 

 

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determined by the Company as of the date that the amount of tax to be withheld is to be determined. An optionee who has made an electionpursuant to this Section 20(a) may only satisfy his or her withholding obligation with shares of Common Stock which are not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements. 

 

(b)    Notwithstanding the foregoing, inthe case of a Reporting Person, no election to use shares for the payment of withholding taxes shall be effective unless made in compliance with any applicable requirements of Rule 16b-3 (unless it is intended that the transaction not qualify forexemption under Rule 16b-3). 

 
21. Cancellation and New Grant of Options, Etc.
 

The Board of Directors shall have the authority to effect, at any time and from time to time, with the consent of the affected optionees,(i) the cancellation of any or all outstanding options under the Plan and the grant in substitution therefor of new options under the Plan covering the same or different numbers of shares of Common Stock and having an option exercise price per sharewhich may be lower or higher than the exercise price per share of the cancelled options or (ii) the amendment of the terms of any and all outstanding options under the Plan to provide an option exercise price per share which is higher or lower thanthe then-current exercise price per share of such outstanding options. 

 
22. Effective Date and Duration of the Plan.
 

(a)    Effective Date.  The Plan shall become effective when adopted by the Board of Directors, butno option granted under the plan shall become exercisable unless and until the Plan shall have been approved by the Company’s shareholders. If such shareholder approval is not obtained within twelve months after the date of the Board’sadoption of the Plan, options previously granted under the Plan shall not vest and shall terminate and no options shall be granted thereafter. Amendments to the Plan not requiring shareholder approval shall become effective when adopted by the Boardof Directors; amendments requiring shareholder approval (as provided in Section 19) shall become effective when adopted by the Board of Directors, but no option granted after the date of such amendment shall become exercisable (to the extent thatsuch amendment to the Plan was required to enable the Company to grant such option to a particular person) unless and until such amendment shall have been approved by the Company’s shareholders. If such shareholder approval is not obtainedwithin twelve months of the Board’s adoption of such amendment, any options granted on or after the date of such amendment shall terminate to the extent that such amendment was required to enable the Company to grant such option to a particularoptionee. Subject to this limitation, options may be granted under the Plan at any time after the effective date and before the date fixed for termination of the Plan. 

 

(b)    Termination.  Unless sooner terminated in accordance with Section16, the Plan shall terminate upon the close of business on the day next preceding the tenth anniversary of the date of its adoption by the Board of Directors. Options outstanding on 

 

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such date shall continue to have force and effect in accordance with the provisions of the instruments evidencing such options. 

 
23. Provision for Foreign Participants.
 

The Board of Directors may, without amending the Plan, modify awards or options granted to participants who are foreign nationals oremployed outside the United States to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters. 

 

Adoptedby the Board of Directors on 

February 10, 1995. 

 

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