Exhibit 10.1


 


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.


 


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“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 


 


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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 


 


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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 


 


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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” 


 


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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.


 


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(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.


 


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