EXHIBIT 4.1


 


AMERICAN SCIENCE AND ENGINEERING, INC.


 


AMENDED AND RESTATED


 


2005 EQUITY AND INCENTIVE PLAN


 


1.                                      Purposes of the Plan


 


The purposes of the American Science and Engineering, Inc.
Amended and Restated 2005 Equity and Incentive Plan (the “Plan”) are (i) to
provide long-term incentives and rewards to those employees, officers,
directors, and consultants of American Science and Engineering, Inc. (the “Company”)
and its Affiliates (as defined below) who are in a position to contribute to
the long-term success and growth of the Company and its Affiliates, (ii) to
assist the Company and its Affiliates in attracting and retaining persons with
the requisite experience and ability, and (iii) to more closely align the
interests of such employees, officers, directors, and consultants with the
interests of the Company’s stockholders.


 


2.                                      Definitions


 


“Affiliate” means any business entity in which the
Company holds, directly or indirectly, an equity, profits, or voting interest
of 30% or more, and includes any Subsidiary.


 


“Applicable Law” means the applicable requirements
relating to the administration of equity compensation plans under Massachusetts
state corporate law, federal and state securities laws, the Code, any stock
exchange or quotation system on which the Common Stock is listed or quoted,
employment laws, and the applicable laws of any foreign jurisdiction where
Awards are or will be granted.


 


“Award” means any Option, Stock Appreciation Right,
Restricted Stock, Restricted Stock Unit, Cash Award, or Foreign National Award
granted under the Plan.  Awards may be granted for services to be rendered
or for past services already rendered to the Company or any Affiliate.


 


“Cash Award” means an Award granted to a Participant
pursuant to Section 10(d) of the Plan that is payable in cash, and
that may be subject to certain terms, conditions, and restrictions.


 


“Board” means the Board of Directors of the Company.


 


“Code” means the Internal Revenue Code of 1986, as
amended from time to time, or any successor law.


 


“Committee” means one or more committees each
comprised of not less than two members of the Board appointed by the Board to
administer the Plan or a specified portion thereof.  To the extent that
the Board determines its desirable to qualify Awards granted to Covered
Employees under the Plan as “performance-based compensation” within the meaning
of Section 162(m) of the Code, then each member of the Committee
shall be an “outside director” within the meaning of Section 162(m) of
the Code.  To the extent that the Board determines it desirable to qualify
Awards granted by the Committee to a Reporting Person under the Plan as exempt
under Rule 16b-3(d)(1) of the Exchange Act, then each member of the
Committee shall be a “non-employee director” within the meaning of Rule 16b-3.


 

















 


“Common Stock” or “Stock” means the common stock of
the Company.


 


“Company” means American Science and Engineering, Inc.,
or any successor corporation.


 


“Covered Employee” means a “covered employee” within
the meaning of Section 162(m) of the Code.


 


“Designated Beneficiary” means the beneficiary
designated by a Participant, in a manner determined by the Committee, to
receive amounts due or exercise rights of the Participant in the event of the
Participant’s death.  In the absence of an effective designation by a
Participant, “Designated Beneficiary” means the Participant’s estate.


 


“Disability” means a total and permanent disability
as provided in the long-term disability plan or policy maintained by the
Company or if applicable, most recently maintained, by the Company or if
applicable, an Affiliate, for the Participant, whether or not such Participant
actually receives disability benefits under such plan or policy.  If no
long-term disability plan or policy was ever maintained on behalf of the
Participant or if the determination of disability relates to an Incentive Stock
Option or SAR issued in tandem with an Incentive Stock Option, Disability means
permanent and total disability as defined in Section 22(e)(3) of the
Code.  In the event of a dispute, the determination whether a Participant
is disabled will be made by the Committee and may be supported by the advice of
a physician competent in the area to which such disability relates.


 


“Exchange Act” means the Securities Exchange Act of
1934, as amended from time to time, or any successor law.


 


“Fair Market Value” means, with respect to Common
Stock or any other property, the fair market value of such property as
determined by the Committee in good faith or in the manner established by the
Committee from time to time.


 


“Foreign National Award” means an Award granted
pursuant to Section 10(f) to a Participant who is a foreign national
or employed or performing services outside of the United States.


 


“Grant Date” means the first date on which all
necessary corporate action has been taken to approve the grant of the Award as
provided in the Plan, or such later date as is determined and specified as part
of that authorization process.  Notice of the grant shall be provided to
the Participant within a reasonable time after the grant.


 


“Grant Agreement” means the documentation evidencing
an Award as provided in Section 10(b).


 


“Incentive Stock Option” means an Option intended to
qualify as an incentive stock option and which meets the requirements of Section 422
of the Code.


 


“Nonstatutory Stock Option” means an Option that is
not an Incentive Stock Option.


 


“Option” means a right to acquire shares of Company
Stock upon the payment of an exercise price that is granted in accordance with Section 6
of the Plan.  An Option may be either an Incentive Stock Option or a
Nonstatutory Stock Option.


 


“Participant” means a person selected by the
Committee to receive an Award under the Plan.


 

















 


“Performance Goals” means with respect to any
Performance Period, one or more performance goals based on one or more of the
following objective criteria established by the Committee prior to the
beginning of such Performance Period or within such period after the beginning
of the Performance Period as shall meet the requirements to be considered “pre-established
objective performance goals” for purposes of the regulations issued under Section 162(m) of
the Code: (i) increases in the price of the Common Stock, (ii) market
share, (iii) sales, (iv) revenue, (v) return on equity, assets,
or capital, (vi) economic profit (economic value added), (vii) total
shareholder return, (viii) costs, (ix) expenses, (x) margins,
(xi) earnings (including EBITDA) or earnings per share, (xii) cash flow
(including adjusted operating cash flow), (xiii) customer satisfaction, (xiv)
operating profit, (xv) net income, (xvi) research and development, (xvii)
product releases, (xviii) manufacturing, or (xix) any combination of the
foregoing, including without limitation, goals based on any of such measures
relative to appropriate peer groups or market indices.  Such Performance
Goals may be particular to a Participant or may be based, in whole or in part,
on the performance of the division, department, line of business, subsidiary,
or other business unit, whether or not legally constituted, in which the
Participant works or on the performance of the Company generally.


 


“Performance Period” means the period of service
designated by the Committee applicable to an Award subject to Section 10(l) during
which the Performance Goals will be measured.


 


“Reporting Person” means a person subject to Section 16
of the Exchange Act.


 


“Restricted Stock” means shares of Common Stock
granted to a Participant pursuant to Section 8 of the Plan that may be
subject to certain terms, conditions, and restrictions.


 


“Restricted Stock Unit” means the right granted to a
Participant pursuant to  Section 9 of the Plan to receive shares of
Common Stock (or the equivalent value in cash or other property if the
Committee so provides) in the future that may be subject to certain terms,
conditions, and restrictions.


 


“Service Provider” means an employee, officer,
director or consultant of the Company or any of its Affiliates.


 


“Stock Appreciation Right” or “SAR” means a right to
acquire cash or shares of Common Stock granted in accordance with Section 7
of the Plan having a value equal to the difference between the Fair Market
Value on the date of exercise over the exercise price set forth in the Grant
Agreement multiplied by the number of shares of Common Stock with respect to
which the SAR is being exercised.


 


“Subsidiary” means any subsidiary corporation as
defined in Section 424(f) of the Code.


 


“Termination Date” means (i) in the case of an
employee, the date that the Committee determines that the employee-employer
relationship between the Company or Affiliate and such person ceased for any
reason, (ii) in the case of a consultant or non-employee officer, the date
that the Committee determines that the service relationship between the Company
or Affiliate and such person ceased for any reason, and (iii) in the case
of a director, the date that the Committee determines that such person’s
service on the Board ceased for any reason.


 


3.                                      Administration


 


The Plan shall be administered by the
Committee.  Subject to and consistent with the provisions of the Plan, the
Committee shall have the authority and discretion to: (i) determine which
eligible employees, officers, directors, and consultants will receive Awards, (ii) determine
the number of 


 

















 


shares of Common Stock, cash, or other consideration
to be covered by each Award, (iii) determine the terms and conditions of
any Award (including Fair Market Value, the exercise price, the vesting
schedule, the term of the Award, and the period following termination from
employment or service during which an Award may be exercised), (iv) approve
forms of Award agreements and other documentation for use under the Plan, (v) adopt,
alter, and repeal administrative rules, guidelines, and practices governing the
operation of the Plan and the Committee, (vi) interpret the provisions of
the Plan and any Award documentation and remedy any ambiguities, omissions, or
inconsistencies therein, (vii) to modify or amend Awards, or grant waivers
of Plan or Award conditions, and (viii) make all other determinations
necessary or advisable for the administration of the Plan.  A majority of
the members of the Committee shall constitute a quorum.  The Committee’s
decisions, determinations, and interpretations shall be final and binding on
all persons having an interest in any Award.  To the extent permitted by
Applicable Law, the Committee may delegate to one or more executive officers of
the Company the power to make Awards to Participants who are not Reporting Persons
and all determinations under the Plan with respect thereto, provided that the
Committee shall fix the maximum amount of such Awards for all such Participants
and a maximum for any one Participant, and such other features of the Awards as
required by Applicable Law.


 


4.             Eligibility


 


Incentive Stock Options may be granted only to
employees (including officers and directors who are also employees) of the
Company or a Subsidiary.  All other Awards may be granted to employees,
officers, directors, and consultants of the Company or any Affiliate.


 


5.             Stock Available for Awards


 


(a)           Amount.  Subject to
adjustment under Section 5(c), the aggregate number of shares of Common
Stock that may be issued pursuant to Awards granted under the Plan shall be
1,000,000 shares.  Subject to adjustment under Section 5(c), up to
1,000,000 shares of Common Stock may be issued upon exercise of Incentive Stock
Options granted under the Plan.  Shares issued under the Plan may consist
in whole or in part of authorized but unissued shares, or treasury shares, or
shares purchased on the open market.  At all times the Company will
reserve and keep available a sufficient number of shares to satisfy the number
of shares available for issuance under the Plan.


 


(b)           Share Counting.  If an Award granted
under the Plan is canceled, terminates, expires, is forfeited, lapses, or is
settled in cash, then the shares subject to such Award (to the extent of such
cancellation, termination, expiration, forfeiture, lapse, or settlement) shall
again be available for issuance pursuant to Awards granted under the
Plan.  For purposes of Section 5(a), any shares granted as Options or
Stock Appreciation Rights under the Plan shall be counted against this limit as
one share for every share subject to the Award.  Any shares granted as
Awards other than Options or Stock Appreciation Rights shall be counted against
the limit set forth in Section 5(a) as 1.5 shares for every one share
subject to the Award.  Any shares tendered in payment of an Option’s
exercise price (whether by attestation or actual delivery), any shares tendered
or withheld to satisfy a tax withholding on an Award, and any shares
repurchased by the Company using Option proceeds shall not be added back,
replenish, or increase the aggregate Plan share limit set forth in Section 5(a).


 


(c)           Adjustment.  In the event that
the Committee determines that any stock dividend, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, or other transaction affects the Common Stock
such that an adjustment is required in order to preserve the benefits intended
to be provided by the Plan, then the Committee (subject in the case of
Incentive Stock Options to any limitation required under the Code) shall
equitably adjust any or all of (i) the number and class of shares that may
be issued in 


 

















 


respect of Awards under the
Plan, (ii) the number and class of shares subject to outstanding Awards, (iii) the
number and class of shares subject to the limit on individual grants under Section 5(d) of
the Plan, and (iv) the exercise price with respect to any of the
foregoing, and if considered appropriate, the Committee may make provision for
a cash payment with respect to an outstanding Award, provided that the number
of shares subject to any Award shall always be a whole number.


 


(d)           Limit on Individual Grants.  The maximum number
of shares of Common Stock subject to all Awards that may be granted under this
Plan to any Participant in the aggregate in any fiscal year of the Company
shall not exceed 250,000 shares, subject to adjustment under Section 5(b). 
Notwithstanding the foregoing, during the fiscal year in which a Participant
first becomes an employee of the Company or an Affiliate, the Participant may
be granted Awards covering an additional 250,000 shares of Common Stock,
subject to adjustment under Section 5(b).  With respect to any Award
settled in cash that is intended to satisfy the requirements for “performance-based
compensation” (within the meaning of Section 162(m)(4)(C) of the
Code), no more than $2,500,000 may be paid to any one individual with respect
to each year of a Performance Period.


 


6.             Stock Options


 


(a)           Grant of Options.  Subject to the
provisions of the Plan, the Committee may grant Incentive Stock Options or
Nonstatutory Stock Options to a Participant.


 


(b)           Terms and Conditions. The Committee shall
determine the number of shares of Common Stock subject to each Option and the
exercise price therefor, which shall not be less than 100% of the Fair Market
Value of the Common Stock on the Grant Date.  Each Option shall be
exercisable at such times and subject to such terms and conditions as the
Committee may specify in the Grant Agreement or thereafter; provided that (i) no
Option shall be exercisable after the expiration of ten years from the Option’s
Grant Date, and (ii) no Option may be granted with a reload feature which
provides for an automatic grant of additional or replacement options upon the
exercise of an Option.


 


A Participant may exercise an Option by following
such procedures as the Committee or its designees may specify from time to
time. The Committee may impose such conditions with respect to the exercise of
Options, including conditions relating to Applicable Laws, as it considers
necessary or advisable.


 


(c)           Payment.  No shares shall be
delivered pursuant to any exercise of an Option until payment in full of the
exercise price therefor is received by the Company.  Except as otherwise
provided by the Committee, such payment may be made in whole or in part in or
pursuant to any of the following methods:  (i) cash, (ii) by
actual delivery or attestation of ownership of shares of Common Stock owned by
the Participant, including vested Restricted Stock, (iii) by retaining shares
of Common Stock otherwise issuable pursuant to the Option, (iv) for
consideration received by the Company under a broker-assisted cashless exercise
program acceptable to the Company, or (v) for such other lawful
consideration as the Committee may determine.


 


(d)           Exercise Period.  When a Participant’s
status as a Service Provider terminates, the Participant’s Option may be
exercised within the period of time specified in the Grant Agreement to the
extent that the Option is vested on the Participant’s Termination Date. 
In the absence of a specific period of time set forth in the Grant Agreement,
an Option shall remain exercisable for three (3) months following the date
the Participant ceases to be a Service Provider, but in no event shall the
Option be exercisable after the expiration of the term of such Option.  If
a Participant’s status as a Service Provider terminates from death or
Disability or the Participant dies within three (3) months after his
Termination Date, then (unless provided otherwise in the Grant Agreement) the 


 

















 


Option shall remain
exercisable for twelve (12) months following the date the Participant ceases to
be a Service Provider, but in no event shall the Option be exercisable after
the expiration of the term of such Option.  In no event may the Committee
provide in a Grant Agreement that the period of time for exercising an Option
following a Participant’s Termination Date shall exceed three (3) years.


 


(e)           Incentive Stock Option Rules.  In
addition to the limitations and conditions that apply generally to Options, the
following provisions shall apply to any Incentive Stock Option.  The
Committee may grant Incentive Stock Options only to persons who are employees
of the Company or a Subsidiary as of the Grant Date.  The aggregate Fair
Market Value (determined as of the Grant Date) of all shares with respect to
which Incentive Stock Options are exercisable for the first time by a
Participant during any calendar year (under the Plan or any other incentive
stock option plan of the Company or any Subsidiary) shall not exceed
$100,000.  If the Fair Market Value of shares on the Grant Date with
respect to which Incentive Stock Options are exercisable for the first time by
a Participant during any calendar year exceeds $100,000, the Options for the
first $100,000 worth of shares to become exercisable in that calendar year will
be Incentive Stock Options, and the Options for the shares with a Fair Market
Value in excess of $100,000 that become exercisable in that calendar year will
be Nonstatutory Stock Options.  No Incentive Stock Option shall be granted
to any individual who, at the Grant Date, owns stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or any Subsidiary unless the exercise price per share of such Option is
at least 110% of the Fair Market Value per share at the Grant Date and the
Option expires no later than five (5) years after the Grant Date.  If
a Participant sells or otherwise disposes of any shares acquired pursuant to
the exercise of an Incentive Stock Option on or before the later of (i) the
date two (2) years after the Grant Date, and (ii) the date one year
after the exercise of the Incentive Stock Option, the Company may require the
Participant to immediately notify the Company in writing of such disposition.


 


7.             Stock Appreciation Rights


 


(a)           Grant of SARs.  Subject to the
provisions of the Plan, the Committee may grant SARs to a Participant in tandem
with an Option (at or after the award of the Option), or alone and unrelated to
an Option.  SARs granted in tandem with an Option shall terminate to the
extent that the related Option is exercised, and the related Option shall
terminate to the extent that the tandem SARs are exercised.


 


(b)           Terms and Conditions.  The Committee shall
determine the number of shares of Common Stock subject to each SAR and the
exercise price therefore.  A SAR granted in tandem with an Option shall
have an exercise price not less than the exercise price of the related Option. 
A SAR granted alone and unrelated to an Option may not have an exercise price
less than 100% of the Fair Market Value of the Common Stock on of the Grant
Date.  Each SAR shall be exercisable at such times and subject to such
terms and conditions as the Committee may specify in the Grant Agreement or
thereafter; provided that no SAR shall be exercisable after the expiration of
ten years from the SAR’s Grant Date.  A Participant may exercise a SAR by
following such procedures as the Committee or its designees may specify from
time to time.  The Committee may impose such conditions with respect to
the exercise of SARs, including conditions relating to Applicable Laws, as it
considers necessary or advisable.


 


(c)           Exercise Period.  When a Participant’s
status as a Service Provider terminates, the Participant’s SAR may be exercised
within the period of time specified in the Grant Agreement to the extent that
the SAR is vested on the Participant’s Termination Date.  In the absence
of a specific period of time set forth in the Grant Agreement, a SAR shall
remain exercisable for three 


 

















 


(3) months following
the date the Participant ceases to be a Service Provider, but in no event shall
the SAR be exercisable after the expiration of the term of such SAR.  If a
Participant’s status as a Service Provider terminates from death or Disability
or the Participant dies within three (3) months after his Termination
Date, then (unless provided otherwise in the Grant Agreement) the SAR shall
remain exercisable for twelve (12) months following the date the Participant
ceases to be a Service Provider, but in no event shall the SAR be exercisable
after the expiration of the term of such SAR.  In no event may the
Committee provide in the Grant Agreement that the period of time for exercising
a SAR following a Participant’s Termination Date shall exceed three (3) years.


 


8.             Restricted Stock


 


(a)           Grant of Restricted Stock.  Subject to the
provisions of the Plan, the Committee may grant Restricted Stock to a
Participant.


 


(b)           Terms and Conditions.  The Committee shall
determine the number of shares of Common Stock subject to each Restricted Stock
Award and the purchase price (if any) for each share.  Shares of
Restricted Stock may be issued for no cash consideration, or such minimum consideration
as may be required by Applicable Law.  The Committee may grant shares of
Common Stock subject to such other terms, conditions, and restrictions
(including forfeiture provisions and conditions relating to Applicable Laws) as
it considers necessary or advisable.


 


(c)           Restrictions.  Shares
of Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered, except as permitted by the Committee, during the
restricted period.  Shares of Restricted Stock shall be evidenced in such
manner as the Committee may determine, including book-entry registration. 
Any physical certificates issued in respect of shares of Restricted Stock shall
be registered in the name of the Participant bearing an appropriate legend
referring to the terms, conditions, and restrictions applicable to such
Restricted Stock and unless otherwise determined by the Committee, deposited by
the Participant, together with a stock power endorsed in blank, with the
Company or a designated custodian or escrow agent.  At the expiration of
the restricted period, the Company shall deliver any such certificates to the
Participant or if the Participant has died, to the Participant’s Designated
Beneficiary.


 


9.             Restricted Stock Units


 


(a)           Restricted Stock Units.  Subject to the provisions
of the Plan, the Committee may grant Restricted Stock Units to a Participant.


 


(b)           Terms and Conditions.  The Committee shall
determine the number of shares of Common Stock subject to each Restricted Stock
Unit Award and the purchase price (if any) for each unit.  Restricted
Stock Units may be issued for no cash consideration, or such minimum
consideration as may be required by Applicable Law.  The Committee may
grant Restricted Stock Units subject to such other terms, conditions, and restrictions
(including forfeiture provisions and conditions relating to Applicable Laws) as
it considers necessary or advisable.


 


(c)           Unfunded Obligation.  A Restricted Stock
Unit Award shall constitute an unfunded and unsecured obligation of the
Company, and shall be settled in shares of Common Stock or cash, as determined
by the Committee at the time of grant or thereafter.  Each unit shall
represent the equivalent of one share of Common Stock.


 

















 


10.          General Provisions Applicable to Awards


 


(a)           Transferability.  Except as otherwise
provided in this Section 10(a), an Award (i) shall not be
transferable other than as designated by the Participant by will or by the laws
of descent and distribution, and (ii) may be exercised during the
Participant’s lifetime only by the Participant or by the Participant’s guardian
or legal representative.  In the discretion of the Committee, any Award
may be transferable upon such terms and conditions and to such extent as the
Committee determines at or after grant, provided that Incentive Stock Options
may be transferable only to the extent permitted by the Code.


 


(b)           Grant Agreement.  Each Award under the
Plan shall be evidenced by a written or electronic grant agreement delivered to
the Participant specifying the terms and conditions thereof and containing such
other terms and conditions not inconsistent with the provisions of the Plan or
Applicable Laws as the Committee considers necessary or advisable to achieve
the purposes of the Plan.


 


(c)           Committee Discretion.  Each type of Award may
be made alone, in addition to or in relation to any other Award.  The
terms of each type of Award need not be identical, and the Committee need not
treat Participants uniformly.  In addition to the authority granted to the
Committee in Section 10(l) to make Awards to Covered Employees which
qualify as “performance-based compensation” for purposes of Section 162(m) of
the Code, the Company may grant Awards subject to such performance conditions
(including performance-based vesting) as it shall determine in its
discretion.  Except as otherwise provided by the Plan or a particular
Award, any determination with respect to an Award may be made by the Committee
at the time of grant or at any time thereafter.


 


(d)           Dividends and Cash Awards.  In the discretion of
the Committee, any Award under the Plan may provide the Participant with
dividends or dividend equivalents payable currently or deferred, with or
without interest.  The Committee may also make cash payments under the
Plan in lieu of or in addition to an Award.  Such Cash Awards may be made
subject to such terms, conditions, and restrictions as the Committee considers
necessary or advisable.


 


(e)           Termination of Employment or Service.  Whether
military service, government service, or other leave of absence shall
constitute a termination of employment or service, and whether the vesting of
an Award shall cease, be suspended, or continue during such  leave of
absence, shall be determined in each case by the Committee in its
direction.  Except as otherwise provided by the Committee, a Participant’s
employment or service shall not be deemed to terminate upon the transfer of
employment or service between the Company and an Affiliate.  Except as
otherwise provided by the Committee, a Participant’s employment or service
shall be deemed to terminate, and further vesting of any Award shall cease, in
the case of any sale, spin-off, or other disposition of the Participant’s
employer or substantially all of its assets.  To the extent that this Section 10(e) or
action by the Committee results in an Incentive Stock Option being exercised
beyond the date that a Participant is deemed to be an employee of the Company
or a Subsidiary for purposes of Section 424 of the Code, the Option shall
be deemed to be a Nonstatutory Stock Option.


 


(f)            Change in Control.  In order to preserve
a Participant’s rights under an Award in the event of a change in control of
the Company as defined by the Committee (a “Change in Control”), the Committee
in its discretion may, at the time an Award is made or at any time thereafter,
take one or more of the following actions: (i) provide for the
acceleration of any time period relating to the exercise or payment of the
Award, (ii) provide for payment to the Participant of cash or other
property with a Fair Market Value equal to the amount that would have been
received upon the exercise or payment of the Award had the Award been exercised
or paid upon the Change in Control, (iii) adjust the terms of the Award in
a manner determined by the Committee to reflect the 


 

















 


Change in Control, (iv) cause
the Award to be assumed, or new rights substituted therefor, by another entity,
or (v) make such other provision as the Committee may consider equitable
to Participants and in the best interests of the Company.


 


(g)           Loans.  The Committee may
not authorize the making of loans to Participants in connection with the grant
or exercise of any Award under the Plan.


 


(h)           Withholding Taxes.  A Participant shall
pay to the Company, or make provision satisfactory to the Committee for payment
of, any taxes required by law to be withheld in respect of Awards under the
Plan no later than the date of the event creating the tax liability.  In
the Committee’s discretion, such tax obligations may be paid in whole or in
part in shares of Common Stock, including shares retained from the Award
creating the tax obligation, valued at their Fair Market Value on the date of
delivery.  The Company and its Affiliates may, to the extent permitted by
Applicable Law, deduct any such tax obligations from any payment of any kind
otherwise due to the Participant.


 


(i)            Foreign National Awards.  Notwithstanding
anything to the contrary contained in this Plan, Foreign National Awards may be
made to Participants on such terms and conditions different from those
specified in the Plan as the Committee considers necessary or advisable to
achieve the purposes of the Plan or to comply with Applicable Law.


 


(j)            Amendment of Award.  Except as provided
in Section 10(k), the Committee may amend, modify, or terminate any
outstanding Award, including substituting therefor another Award of the same or
a different type, changing the date of exercise or realization and converting
an Incentive Stock Option to a Nonstatutory Stock Option, provided that the
Participant’s consent to such action shall be required unless (i) the
Committee determines that the action, taking into account any related action,
would not materially and adversely affect the Participant, or (ii) the
action is permitted by the terms of the Plan.


 


(k)           No Repricing of Options.  Notwithstanding
anything to the contrary in the Plan, the Company shall not engage in any
repricing of Options or SARs granted under this Plan without further
stockholder approval.  For this purpose, the term “repricing” shall mean
any of the following or other action that has the same effect:  (i) lowering
the exercise price of an Option or a SAR after it is granted, (ii) any
other action that is treated as a repricing under generally accepted accounting
principles, or (iii) canceling an Option or a SAR at a time when its
exercise price exceeds the fair market value of the underlying stock in
exchange for another Option, SAR, Restricted Stock, or other equity of the
Company, unless the cancellation and exchange occurs in connection with a
merger, acquisition, spin-off, or similar corporate transaction (including any
adjustment described in Section 5(c)).


 


(l)            Code Section 162(m) Provisions.  If the
Committee determines at the time an Award is granted to a Participant that such
Participant is, or may be as of the end of the tax year for which the Company
would claim a tax deduction in connection with such Award, a Covered Employee,
then the Committee may provide that the Participant’s right to receive cash,
shares, or other property pursuant to such Award shall be subject to the
satisfaction of Performance Goals during a Performance Period.  Prior to
the payment of any Award subject to this Section 10(l), the Committee
shall certify in writing that the Performance Goals and other material terms
applicable to such Award were satisfied.  Notwithstanding the attainment
of Performance Goals by a Covered Employee, the Committee shall have the right
to reduce (but not to increase) the amount payable at a given level of
performance to take into account additional factors that the Committee may deem
relevant.  The Committee shall have the power to impose such other
restrictions on Awards subject 


 

















 


to this Section 10(l) as
it may deem necessary or appropriate to ensure that such Awards satisfy all
requirements for “performance-based compensation” within the meaning of Section 162(m) of
the Code.


 


(m)          Minimum Vesting Requirements.  Each Award granted
under the Plan shall vest in accordance with a schedule that does not
permit such Award to vest in full prior to the third anniversary of the Grant
Date of the Award.  This minimum vesting requirements shall not, however,
preclude the Committee from exercising its discretion to (i) accelerate
the vesting of any Award upon retirement, termination of employment by the
Company, death or Disability, (ii) accelerate the vesting of any Award in
accordance with Section 10(f), (iii) establish a shorter vesting
schedule for any Award granted to a consultant, director, or newly-hired
employee, (iv) establish a shorter vesting schedule for any Award
that is granted in exchange for or in lieu of the right to receive the payment
of an equivalent amount of salary, bonus, or other cash compensation, (v) establish
a shorter performance-based vesting schedule in accordance with Section 10(c) or
Section 10(l) (but in each case of not less than one year), or (vi) vest
up to 1,000 shares per year for each Participant.


 


(n)           Limitation Following a Hardship Distribution.  To the
extent required to comply with Treasury Regulation Section 1.401(k)-1(d)(2)(iv)(B)(4),
or any amendment or successor thereto, a Participant’s “elective and employee
contributions” (within the meaning of such Treasury Regulation) under the Plan
shall be suspended for a period of twelve months following such Participant’s
receipt of a hardship distribution made in reliance on such Treasury Regulation
from any plan containing a cash or deferred arrangement under Section 401(k) of
the Code maintained by the Company or a related party within the provisions of Section 414
of the Code.


 


11.          Miscellaneous


 


(a)           No Right To Employment.  No person shall have
any claim or right to be granted an Award.  Neither the Plan nor any Award
hereunder shall be deemed to give any employee the right to continued
employment or service or to limit the right of the Company to discharge any
Participant at any time.


 


(b)           No Rights As Stockholder.  Subject to the
provisions of the applicable Award, no Participant or Designated Beneficiary
shall have any rights as a stockholder with respect to any shares of Common
Stock to be distributed under the Plan until he or she becomes the holder
thereof.  A Participant to whom Common Stock is awarded shall be
considered the holder of the Stock at the time of the Award except as otherwise
provided in the Grant Agreement.


 


(c)           Effective Date.  Subject to the
approval of the stockholders of the Company, the Plan shall be effective on September 11,
2008.


 


(d)           Amendment and Term of Plan.  The Board may amend,
suspend, or terminate the Plan or any portion thereof at any time, subject to
such stockholder approval as the Board determines to be necessary or advisable
to comply with any tax or regulatory requirement, provided, however, that the
Board may not without stockholder approval materially amend the Plan (within
the meaning of applicable exchange listing requirements) to materially increase
the number of shares of Common Stock that may be issued under the Plan,
materially increase benefits to Participants, materially expand the class of
Participants eligible to participate in the Plan, or expand the types of Awards
provided under the Plan.  Unless terminated earlier by the Board, or
extended by subsequent approval of the Company’s stockholders, the term of the
Plan shall expire on September 15, 2015, 


 

















 


and no further Awards shall
be made thereafter.  The termination of the Plan on such date shall not
affect the validity of any Award outstanding on the date of termination.


 


(e)           Governing Law.  The provisions of
the Plan shall be governed by and interpreted in accordance with the laws of
Massachusetts.


 


(f)            Indemnification.  Neither the Board
nor the Committee, nor any members of either, nor any employees or officers of
the Company or any Affiliate, shall be liable for any act, omission,
interpretation, construction, or determination made in good faith in connection
with their responsibilities under the Plan, and the Company hereby agrees to
indemnify the members of the Board, the members of the Committee, and the
employees and officers of the Company or any Affiliate administering the Plan,
in respect of any claim, loss, damage, or expense (including reasonable fees of
legal counsel) arising from any such act, omission, interpretation,
construction, or determination to the fullest extent permitted by Applicable
Law.


 


This
Amended and Restated 2005 Equity Incentive Plan was approved by the Company’s
Board of Directors on July 24, 2008 and by the Company’s stockholders on September 11,
2008.