Exhibit
10.1


 


BLADELOGIC,
INC.


 


Third
Amended and Restated 2001 Stock Option and Grant Plan


 


SECTION 1.  GENERAL
PURPOSE OF THE PLAN; DEFINITIONS


 


The name of this plan is
the BladeLogic, Inc. 2001 Stock Option and Grant Plan (as amended and restated,
the “Plan”). The purpose of the Plan is to encourage and enable the officers,
employees, directors, consultants and other key persons of BladeLogic, Inc., a
Delaware corporation (the “Company”) and its Subsidiaries, upon whose judgment,
initiative and efforts the Company largely depends for the successful conduct
of its business, to acquire a proprietary interest in the Company. It is
anticipated that providing such persons with a direct stake in the Company’s
welfare will assure a closer identification of their interests with those of
the Company, thereby stimulating their efforts on the Company’s behalf and
strengthening their desire to remain with the Company.


 


The following terms shall
be defined as set forth below:


 


“Act” means the Securities Act of 1933, as
amended, and the rules and regulations thereunder.


 


“Award” or “Awards,” except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified
Stock Options, Restricted Stock Awards, Unrestricted Stock Awards, or any
combination of the foregoing.


 


“Board” means the Board of Directors of the
Company or its successor entity.


 


“Cause” means a vote of the Board resolving
that the grantee should be dismissed as a result of (i) the commission of any
act by a grantee constituting financial dishonesty against the Company (which
act would be chargeable as a crime under applicable law); (ii) a grantee’s
engaging in any other act of dishonesty, fraud, intentional misrepresentation,
moral turpitude, illegality or harassment which, as determined in good faith by
the Board, would:  (A) materially
adversely affect the business or the reputation of the Company with its current
or prospective customers, suppliers, lenders and/or other third parties with
whom it does or might do business; or (B) expose the Company to a risk of civil
or criminal legal damages, liabilities or penalties; (iii) the repeated failure
by a grantee to follow the directives of the Company’s chief executive officer
or Board or (iv) any material misconduct, violation of the Company’s policies,
or willful and deliberate non-performance of duty by the grantee in connection
with the business affairs of the Company.


 


“Code” means the Internal Revenue Code of
1986, as amended, and any successor Code, and related rules, regulations and
interpretations.


 


 

















 


“Committee” has the meaning specified in
Section 2.


 


“Effective Date”  means the date on which the Plan is approved by
stockholders as set forth at the end of this Plan.


 


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


 


“Fair Market Value” of the Stock on any
given date means the fair market value of the Stock determined in good faith by
the Committee; provided, however, that (i) if the Stock trades on
a national securities exchange, the Fair Market Value on any given date is the
closing sale price on such date; (ii) if the Stock does not trade on any
national securities exchange but is admitted to trading on the National
Association of Securities Dealers, Inc. Automated Quotation System (“NASDAQ”),
the Fair Market Value on any given date is the closing sale price as reported
by NASDAQ on such date; or if no such closing sale price information is
available, the average of the highest bid and lowest asked prices for the Stock
reported on such date. For any date that is not a trading day, the Fair Market
Value of the Stock for such date will be determined by using the closing sale
price or the average of the highest bid and lowest asked prices, as
appropriate, for the immediately preceding trading day. The Committee can
substitute a particular time of day or other measure of closing sale price if
appropriate because of changes in exchange or market procedures.
Notwithstanding the foregoing, if the date for which Fair Market Value is
determined is the first day when trading prices for the Stock are reported on
NASDAQ or trading on a national securities exchange, the Fair Market Value
shall be the “Price to the Public” (or equivalent) set forth on the cover page
for the final prospectus relating to the Company’s Initial Public Offering.


 


“Good Reason” means the occurrence of any
of the following events:  (i) a
substantial adverse change in the nature or scope of the grantee’s
responsibilities, authorities, powers, functions or duties; (ii) a reduction in
the grantee’s annual base salary except for across-the-board salary reductions
similarly affecting all or substantially all management employees; or (iii) the
relocation of the offices at which the grantee is principally employed to a
location more than 50 miles from such offices.


 


“Incentive Stock Option” means any Stock
Option designated and qualified as an “incentive stock option” as defined in
Section 422 of the Code.


 


“Initial Public Offering” means the
consummation of the first fully underwritten, firm commitment public offering
pursuant to an effective registration statement under the Act covering the
offer and sale by the Company of its equity securities, as a result of or
following which the Stock will be publicly held.


 


“Non-Qualified Stock Option” means any
Stock Option that is not an Incentive Stock Option.


 


“Option” or “Stock Option” means any option to purchase shares of Stock
granted pursuant to Section 5.


 


“Restricted Stock Award” means any Award
granted pursuant to Section 6.


 


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“Stock” means the Common Stock, par value
$.001 per share, of the Company, subject to adjustments pursuant to
Section 3.


 


“Subsidiary” means any corporation or other
entity (other than the Company) in any unbroken chain of corporations or other
entities beginning with the Company if each of the corporations or entities
(other than the last corporation or entity in the unbroken chain) owns stock or
other interests possessing 50 percent or more of the economic interest or 50
percent or more of the total combined voting power of all classes of stock or
other interests in one of the other corporations or entities in the chain.


 


“Unrestricted Stock Award” means any Award granted
pursuant to Section 7.


 


SECTION
2.                            ADMINISTRATION
OF PLAN; COMMITTEE AUTHORITY TO SELECT GRANTEES AND DETERMINE AWARDS


 


(a)                                  Administration
of Plan. The Plan shall be administered by the Board, or at the discretion
of the Board, by a committee of the Board, comprised, except as contemplated by
Section 2(c), of not less than two Directors. All references herein to the
Committee shall be deemed to refer to the group then responsible for
administration of the Plan at the relevant time (i.e., either the Board of
Directors or a committee or committees of the Board, as applicable).


(b)                                 Powers
of Committee. The Committee shall have the power and authority to grant
Awards consistent with the terms of the Plan, including the power and
authority:


(i)                                     to
select the individuals to whom Awards may from time to time be granted;


(ii)                                  to
determine the time or times of grant, and the extent, if any, of Incentive
Stock Options, Non-Qualified Stock Options, Restricted Stock Awards,
Unrestricted Stock Awards, or any combination of the foregoing, granted to any
one or more grantees;


(iii)                               to
determine the number of shares of Stock to be covered by any Award;


(iv)                              to
determine and modify from time to time the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award, which
terms and conditions may differ among individual Awards and grantees, and to
approve the form of written instruments evidencing the Awards;


(v)                                 to
accelerate at any time the exercisability or vesting of all or any portion of
any Award;


(vi)                              to
impose any limitations on Awards granted under the Plan, including limitations
on transfers, repurchase provisions and the like and to exercise repurchase
rights or obligations;


(vii)                           subject
to the provisions of Section 5(a)(ii), to extend at any time the period in
which Stock Options may be exercised;


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(viii)                        to determine at any time
whether, to what extent, and under what circumstances distribution or the
receipt of Stock and other amounts payable with respect to an Award shall be
deferred either automatically or at the election of the grantee and whether and
to what extent the Company shall pay or credit amounts constituting interest
(at rates determined by the Committee) or dividends or deemed dividends on such
deferrals; and


 


(ix)                                at
any time to adopt, alter and repeal such rules, guidelines and practices for
administration of the Plan and for its own acts and proceedings as it shall
deem advisable; to interpret the terms and provisions of the Plan and any Award
(including related written instruments); to make all determinations it deems
advisable for the administration of the Plan; to decide all disputes arising in
connection with the Plan; and to otherwise supervise the administration of the
Plan.


 


All decisions and
interpretations of the Committee shall be binding on all persons, including the
Company and Plan grantees.


 


(c)                                  Delegation
of Authority to Grant Awards. The Committee, in its discretion, may
delegate to the Chief Executive Officer of the Company all or part of the
Committee’s authority and duties with respect to the granting of Awards at Fair
Market Value, and in the event of such delegation, such Chief Executive Officer
shall be deemed a one-person Committee of the Board. Any such delegation by the
Committee shall include a limitation as to the amount of Awards that may be
granted during the period of the delegation and shall contain guidelines as to
the determination of the exercise price of any Option, the conversion ratio or
price of other Awards and the vesting criteria. The Committee may revoke or
amend the terms of a delegation at any time but such action shall not
invalidate any prior actions of the Committee’s delegate or delegates that were
consistent with the terms of the Plan.


 


(d)                                 Indemnification.
Neither the Board nor the Committee, nor any member of either or any delegatee
thereof, shall be liable for any act, omission, interpretation, construction or
determination made in good faith in connection with the Plan, and the members
of the Board and the Committee (and any delegatee thereof) shall be entitled in
all cases to indemnification and reimbursement by the Company in respect of any
claim, loss, damage or expense (including, without limitation, reasonable
attorneys’ fees) arising or resulting therefrom to the fullest extent permitted
by law and/or under any directors’ and officers’ liability insurance coverage
which may be in effect from time to time.


 


SECTION
3.                            STOCK
ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION


 


(a)                                  Stock
Issuable. The maximum number of shares of Stock reserved and available for
issuance under the Plan shall be 14,500,000 shares of Common Stock, subject to
adjustment as provided in Section 3(b). For purposes of this limitation, the
shares of Stock underlying any Awards which are forfeited, canceled, reacquired
by the Company, satisfied without the issuance of Stock or otherwise terminated
(other than by exercise) shall be added back to the shares of Stock available
for issuance under the Plan. Subject to such overall limitation, shares of
Stock may be issued up to such maximum number pursuant to any type or types of
Award; provided, however, that from and after the date the Company becomes
subject to the deduction limit 


 


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imposed by
Section 162(m) of the Code, Stock Options with respect to no more than
500,000 shares of Stock may be granted to any one individual grantee during any
one calendar year period. The shares available for issuance under the Plan may
be authorized but unissued shares of Stock or shares of Stock reacquired by the
Company and held in its treasury.


 


(b)                                 Changes
in Stock. Subject to Section 3(c) hereof, if, as a result of any
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar change in the Company’s capital
stock, the outstanding shares of Stock are increased or decreased or are
exchanged for a different number or kind of shares or other securities of the
Company, or additional shares or new or different shares or other securities of
the Company or other non-cash assets are distributed with respect to such
shares of Stock or other securities, or if, as a result of any merger,
consolidation or sale of all or substantially all of the assets of the Company,
the outstanding shares of Stock are converted into or exchanged for a different
number or kind of securities of the Company or any successor entity (or a
parent or subsidiary thereof), the Committee shall make an appropriate or
proportionate adjustment in (i) the maximum number of shares reserved for
issuance under the Plan, (ii) the number of Stock Options that can be granted
to any one individual grantee, (iii) the number and kind of shares or other
securities subject to any then outstanding Awards under the Plan, (iv) the
repurchase price per share subject to each outstanding Restricted Stock Award,
and (v) the exercise price and/or exchange price for each share subject to any
then outstanding Stock Options under the Plan, without changing the aggregate
exercise price (i.e., the exercise price multiplied by the number of Stock
Options) as to which such Stock Options remain exercisable. The adjustment by
the Committee shall be final, binding and conclusive. No fractional shares of
Stock shall be issued under the Plan resulting from any such adjustment, but
the Committee in its discretion may make a cash payment in lieu of fractional
shares.


 


The Committee may also
adjust the number of shares subject to outstanding Awards and the exercise
price and the terms of outstanding Awards to take into consideration material
changes in accounting practices or principles, extraordinary dividends,
acquisitions or dispositions of stock or property or any other event if it is
determined by the Committee that such adjustment is appropriate to avoid
distortion in the operation of the Plan, provided  that no such
adjustment shall be made in the case of an Incentive Stock Option, without the
consent of the grantee, if it would constitute a modification, extension or
renewal of the Option within the meaning of Section 424(h) of the Code.


 


(c)                                  Mergers
and Other Sale Events. In the case of and subject to the consummation of
any Sale Event (as defined below), (i) the Committee may provide in its sole
discretion for the acceleration, in whole or in part, of any outstanding
Options in connection with such Sale Event and (ii) the Plan and all
outstanding Options issued hereunder shall terminate upon the effective time of
any such Sale Event, unless provision is made in connection with such
transaction in the sole discretion of the parties thereto for the assumption or
continuation of Options theretofore granted (after taking into account any
acceleration hereunder) by the successor entity, or the substitution of such
Options with new options of the successor entity or a parent or subsidiary
thereof, with such adjustment as to the number and kind of shares and the per
share exercise prices as such parties shall agree (after taking into account
any acceleration hereunder). If Options are to be terminated upon a Sale Event,
each grantee shall be permitted, within a specified period of time prior to the
consummation of the Sale Event as determined by the 


 


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Committee, to
exercise all outstanding Options held by such grantee which are then
exercisable or will become exercisable as of the effective time of the Sale
Event as a result of acceleration; provided, however, that the exercise of Options
not exercisable prior to the Sale Event shall be subject to the consummation of
the Sale Event. The treatment of Restricted Stock Awards in connection with any
Sale Event shall be as specified in the relevant Award agreement. “Sale Event”
means (i) the dissolution or liquidation of the Company, (ii) the sale of all
or substantially all of the assets of the Company on a consolidated basis to an
unrelated person or entity, (iii) a merger, reorganization or consolidation in
which the outstanding shares of Stock are converted into or exchanged for
securities of the successor entity and the holders of the Company’s outstanding
voting power immediately prior to such transaction do not own a majority of the
outstanding voting power of the successor entity immediately upon completion of
such transaction, (iv) the sale of all or a majority of the outstanding capital
stock of the Company to an unrelated person or entity or (v) any other
transaction in which the owners of the Company’s outstanding voting power prior
to such transaction do not own at least a majority of the outstanding voting
power of the successor entity immediately upon completion of the transaction.


 


(d)                                 Substitute
Awards. The Committee may grant Awards under the Plan in substitution for
stock and stock based awards held by employees, directors or other key persons
of another corporation in connection with a merger or consolidation of the
employing corporation with the Company or a Subsidiary or the acquisition by
the Company or a Subsidiary of property or stock of the employing corporation.
The Committee may direct that the substitute awards be granted on such terms
and conditions as the Committee considers appropriate in the circumstances. Any
substitute Awards granted under the Plan shall not count against the share
limitation set forth in Section 3(a).


 


SECTION 4.                            ELIGIBILITY


 


Grantees in the Plan will
be such full or part-time officers, employees, directors, consultants and other
key persons (including prospective employees) of the Company and its
Subsidiaries who are responsible for, or contribute to, the management, growth
or profitability of the Company and its Subsidiaries as are selected from time
to time by the Committee in its sole discretion.


 


SECTION 5.                            STOCK OPTIONS


 


Any Stock Option granted
under the Plan shall be pursuant to a Stock Option Agreement which shall be in
such form as the Committee may from time to time approve. Option agreements
need not be identical.


 


Stock Options granted
under the Plan may be either Incentive Stock Options or Non-Qualified Stock
Options. Incentive Stock Options may be granted only to employees of the
Company or any Subsidiary that is a “subsidiary corporation” within the meaning
of Section 424(f) of the Code. To the extent that any Option does not qualify
as an Incentive Stock Option, it shall be deemed a Non-Qualified Stock Option.


 


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No Incentive Stock Option
shall be granted under the Plan after the date which is ten years from the date
the Plan is approved by the Board.


 


(a)                                  Terms
of Stock Options. Stock Options granted under the Plan shall be subject to
the following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Committee shall
deem desirable. If the Committee so determines, Stock Options may be granted in
lieu of cash compensation at the grantee’s election, subject to such terms and
conditions as the Committee may establish, as well as in addition to other
compensation.


 


(i)                                     Exercise
Price. The exercise price per share for the Stock covered by a Stock Option
shall be determined by the Committee at the time of grant but shall not be less
than 100 percent of the Fair Market Value on the date of grant in the case of
Incentive Stock Options. If an employee owns or is deemed to own (by reason of
the attribution rules of Section 424(d) of the Code) more than 10 percent
of the combined voting power of all classes of stock of the Company or any
parent or subsidiary corporation and an Incentive Stock Option is granted to
such employee, the option price of such Incentive Stock Option shall be not
less than 110 percent of the Fair Market Value on the grant date.


 


(ii)                                  Option
Term. The term of each Stock Option shall be fixed by the Committee, but no
Stock Option shall be exercisable more than ten years after the date the Stock
Option is granted. If an employee owns or is deemed to own (by reason of the
attribution rules of Section 424(d) of the Code) more than 10 percent of
the combined voting power of all classes of stock of the Company or any parent
or subsidiary corporation and an Incentive Stock Option is granted to such
employee, the term of such Stock Option shall be no more than five years from
the date of grant.


 


(iii)                               Exercisability;
Rights of a Stockholder. Stock Options shall become exercisable at such
time or times, whether or not in installments, as shall be determined by the
Committee at or after the grant date. The Committee may at any time accelerate
the exercisability of all or any portion of any Stock Option. An optionee shall
have the rights of a stockholder only as to shares acquired upon the exercise
of a Stock Option and not as to unexercised Stock Options.


 


(iv)                              Method
of Exercise. Stock Options may be exercised in whole or in part, by giving
written notice of exercise to the Company, specifying the number of shares to
be purchased. Payment of the purchase price may be made by one or more of the
following methods to the extent provided in the Award agreement or as otherwise
provided by the Committee:


 


(A)                              In
cash, by certified or bank check, or other instrument acceptable to the
Committee in U.S. funds payable to the order of the Company in an amount equal
to the purchase price of such Option Shares;


 


(B)                                By
the optionee delivering to the Company a promissory note if the Board has
expressly authorized the loan of funds to the optionee for the purpose of
enabling or assisting the optionee to effect the exercise of his or her Stock
Option; 


 


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provided that at least so much of the exercise price
as represents the par value of the Stock shall be paid other than with a
promissory note if otherwise required by state law;


 


(C)                                If
permitted by the Committee, through the delivery (or attestation to the
ownership) of shares of Stock that have been purchased by the optionee on the
open market or have been beneficially owned by the optionee for at least six
months and are not then subject to restrictions under any Company plan. Such surrendered
shares shall be valued at Fair Market Value on the exercise date;


 


(D)                               If
permitted by the Committee, by the optionee delivering to the Company a
properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company cash or a check payable and
acceptable to the Company to pay the purchase price; provided that in
the event the optionee chooses to pay the purchase price as so provided, the
optionee and the broker shall comply with such procedures and enter into such
agreements of indemnity and other agreements as the Committee shall prescribe
as a condition of such payment procedure.


 


Payment instruments will
be received subject to collection. No certificates for shares of Stock so
purchased will be issued to optionee until the Company has completed all steps
required by law to be taken in connection with the issuance and sale of the
shares, including without limitation (i) receipt of a representation from the
optionee at the time of exercise of the Option that the optionee is purchasing
the shares for the optionee’s own account and not with a view to any sale or
distribution thereof, (ii) the legending of any certificate representing the
shares to evidence the foregoing representations and restrictions, and (iii)
obtaining from optionee payment or provision for all withholding taxes due as a
result of the exercise of the Option. The delivery of certificates representing
the shares of Stock to be purchased pursuant to the exercise of a Stock Option
will be contingent upon receipt from the optionee (or a purchaser acting in his
or her stead in accordance with the provisions of the Stock Option) by the
Company of the full purchase price for such shares and the fulfillment of any
other requirements contained in the Option Award agreement or under applicable
law. In the event an optionee chooses to pay the purchase price by
previously-owned shares of Stock through the attestation method, the shares of
Stock transferred to the optionee upon the exercise of the Stock Option shall
be net of the number of shares attested to.


 


(b)                                 Annual
Limit on Incentive Stock Options. To the extent required for “incentive
stock option” treatment under Section 422 of the Code, the aggregate Fair
Market Value (determined as of the time of grant) of the shares of Stock with
respect to which Incentive Stock Options granted under this Plan and any other
plan of the Company or its parent and subsidiary corporations become
exercisable for the first time by an optionee during any calendar year shall
not exceed $100,000. To the extent that any Stock Option exceeds this limit, it
shall constitute a Non-Qualified Stock Option.


 


(c)                                  Non-transferability
of Options. No Stock Option shall be transferable by the optionee otherwise
than by will or by the laws of descent and distribution and all Stock Options
shall be exercisable, during the optionee’s lifetime, only by the optionee, or
by the optionee’s legal representative or guardian in the event of the
optionee’s incapacity. Notwithstanding the foregoing, the Committee, in its
sole discretion, may provide in the Award agreement regarding 


 


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a given Option
that the optionee may transfer, without consideration for the transfer, his or
her Non-Qualified Stock Options to members of his or her immediate family, to
trusts for the benefit of such family members, or to partnerships in which such
family members are the only partners, provided that the transferee agrees in
writing with the Company to be bound by all of the terms and conditions of this
Plan and the applicable Option.


 


SECTION 6.                            RESTRICTED STOCK AWARDS


 


(a)                                  Nature
of Restricted Stock Awards. A Restricted Stock Award is an Award pursuant
to which the Company may, in its sole discretion, grant or sell, at such
purchase price as determined by the Committee, in its sole discretion, shares
of Stock subject to such restrictions and conditions as the Committee may
determine at the time of grant (“Restricted Stock”), which purchase price shall
be payable in cash or other form of consideration acceptable to the Committee.
Conditions may be based on continuing employment (or other service
relationship) and/or achievement of pre-established performance goals and
objectives. The terms and conditions of each such agreement shall be determined
by the Committee, and such terms and conditions may differ among individual
Awards and grantees.


 


(b)                                 Rights
as a Stockholder. Upon execution of a written instrument setting forth the
Restricted Stock Award and payment of any applicable purchase price, a grantee
shall have the rights of a stockholder with respect to the voting of the
Restricted Stock, subject to such conditions contained in the written
instrument evidencing the Restricted Stock Award. Unless the Committee shall
otherwise determine, certificates evidencing the Restricted Stock shall remain
in the possession of the Company until such Restricted Stock is vested as
provided in subsection (d) below of this Section, and the grantee shall be
required, as a condition of the grant, to deliver to the Company a stock power
endorsed in blank.


 


(c)                                  Restrictions.
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of except as specifically provided herein or in the
Restricted Stock Award agreement. If a grantee’s employment (or other service
relationship) with the Company and its Subsidiaries terminates under the
conditions specified in the relevant instrument relating to the Award, or upon
such other event or events as may be stated in the instrument evidencing the
Award, the Company or its assigns shall have the right or shall agree, as may
be specified in the relevant instrument, to repurchase some or all of the
shares of Stock subject to the Award at such purchase price as is set forth in
such instrument.


 


(d)                                 Vesting
of Restricted Stock. The Committee at the time of grant shall specify the
date or dates and/or the attainment of pre-established performance goals,
objectives and other conditions on which Restricted Stock shall become vested,
subject to such further rights of the Company or its assigns as may be
specified in the instrument evidencing the Restricted Stock Award.


 


(e)                                  Waiver,
Deferral and Reinvestment of Dividends. The Restricted Stock Award
agreement may require or permit the immediate payment, waiver, deferral or
investment of dividends paid on the Restricted Stock.


 


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SECTION 7.                            UNRESTRICTED STOCK AWARDS


 


(a)                                  Grant
or Sale of Unrestricted Stock. The Committee may, in its sole discretion,
grant (or sell at par value or such higher purchase price determined by the
Committee) an Unrestricted Stock Award to any grantee, pursuant to which such
grantee may receive shares of Stock free of any vesting restrictions (“Unrestricted
Stock”) under the Plan. Unrestricted Stock Awards may be granted or sold as
described in the preceding sentence in respect of past services or other valid
consideration, or in lieu of any cash compensation due to such individual.


 


(b)                                 Elections
to Receive Unrestricted Stock In Lieu of Compensation. Upon the request of
a grantee and with the consent of the Committee, each such grantee may,
pursuant to an advance written election delivered to the Company no later than
the date specified by the Committee, receive a portion of the cash compensation
otherwise due to such grantee in the form of shares of Unrestricted Stock
either currently or on a deferred basis.


 


(c)                                  Restrictions
on Transfers. The right to receive shares of Unrestricted Stock on a deferred
basis may not be sold, assigned, transferred, pledged or otherwise encumbered,
other than by will or the laws of descent and distribution.


 


SECTION 8.                            TAX WITHHOLDING


 


(a)                                  Payment
by Grantee. Each grantee shall, no later than the date as of which the value
of an Award or of any Stock or other amounts received thereunder first becomes
includable in the gross income of the grantee for Federal income tax purposes,
pay to the Company, or make arrangements satisfactory to the Committee
regarding payment of, any federal, state, or local taxes of any kind required
by law to be withheld with respect to such income. The Company and its
Subsidiaries shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to the grantee. The
Company’s obligation to deliver stock certificates to any grantee is subject to
and conditioned on tax obligations being satisfied by the grantee.


 


(b)                                 Payment
in Stock. Subject to approval by the Committee, a grantee may elect to have
the minimum required tax withholding obligation satisfied, in whole or in part,
by (i) authorizing the Company to withhold from shares of Stock to be issued
pursuant to any Award a number of shares with an aggregate Fair Market Value
(as of the date the withholding is effected) that would satisfy the withholding
amount due, or (ii) transferring to the Company shares of Stock owned by the
grantee with an aggregate Fair Market Value (as of the date the withholding is
effected) that would satisfy the minimum withholding amount due.


 


SECTION 9.                            TRANSFER, LEAVE OF ABSENCE, ETC.


 


For purposes of the Plan,
the following events shall not be deemed a termination of employment:


 


(a)                                  a
transfer to the employment of the Company from a Subsidiary or from the Company
to a Subsidiary, or from one Subsidiary to another; or


 


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(b)                                 an
approved leave of absence for military service or sickness, or for any other
purpose approved by the Company, if the employee’s right to re-employment is
guaranteed either by a statute or by contract or under the policy pursuant to
which the leave of absence was granted or if the Committee otherwise so
provides in writing.


 


SECTION 10.                     AMENDMENTS AND TERMINATION


 


The Board may, at any
time, amend or discontinue the Plan and the Committee may, at any time, amend
or cancel any outstanding Award (or provide substitute Awards at the same or
reduced exercise or purchase price or with no exercise or purchase price in a
manner not inconsistent with the terms of the Plan, but such price, if any,
must satisfy the requirements which would apply to the substitute or amended
Award if it were then initially granted under this Plan) for the purpose of
satisfying changes in law or for any other lawful purpose, but no such action
shall adversely affect rights under any outstanding Award without the holder’s
consent. If and to the extent determined by the Committee to be required by the
Code to ensure that Incentive Stock Options granted under the Plan are qualified
under Section 422 of the Code, Plan amendments shall be subject to
approval by the Company’s stockholders who are eligible to vote at a meeting of
stockholders. Nothing in this Section 10 shall limit the Board’s or
Committee’s authority to take any action permitted pursuant to
Section 3(c).


 


SECTION 11.                     STATUS OF PLAN


 


With respect to the
portion of any Award that has not been exercised and any payments in cash,
Stock or other consideration not received by a grantee, a grantee shall have no
rights greater than those of a general creditor of the Company unless the
Committee shall otherwise expressly determine in connection with any Award or
Awards. In its sole discretion, the Committee may authorize the creation of
trusts or other arrangements to meet the Company’s obligations to deliver Stock
or make payments with respect to Awards hereunder, provided that the
existence of such trusts or other arrangements is consistent with the foregoing
sentence.


 


SECTION 12.                     GENERAL PROVISIONS


 


(a)                                  No
Distribution; Compliance with Legal Requirements. The Committee may require
each person acquiring Stock pursuant to an Award to represent to and agree with
the Company in writing that such person is acquiring the shares without a view
to distribution thereof. No shares of Stock shall be issued pursuant to an
Award until all applicable securities law and other legal and stock exchange or
similar requirements have been satisfied. The Committee may require the placing
of such stop-orders and restrictive legends on certificates for Stock and
Awards as it deems appropriate.


 


(b)                                 Delivery
of Stock Certificates. Stock certificates to grantees under this Plan shall
be deemed delivered for all purposes when the Company or a stock transfer agent
of the Company shall have mailed such certificates in the United States mail,
addressed to the grantee, at the grantee’s last known address on file with the
Company.


 


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(c)                                  Other
Compensation Arrangements; No Employment Rights. Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, including trusts, and
such arrangements may be either generally applicable or applicable only in
specific cases. The adoption of this Plan and the grant of Awards do not confer
upon any employee any right to continued employment with the Company or any
Subsidiary.


 


(d)                                 Trading
Policy Restrictions. Option exercises and other Awards under the Plan shall
be subject to such Company’s insider-trading-policy-related restrictions, terms
and conditions as may be established by the Committee, or in accordance with
policies set by the Committee, from time to time.


 


(e)                                  Loans
to Award Recipients. The Company shall have the authority to make loans to
recipients of Awards hereunder (including to facilitate the purchase of shares)
and shall further have the authority to issue shares for promissory notes
hereunder.


 


(f)                                    Designation
of Beneficiary. Each grantee to whom an Award has been made under the Plan
may designate a beneficiary or beneficiaries to exercise any Award or receive
any payment under any Award payable on or after the grantee’s death. Any such
designation shall be on a form provided for that purpose by the Administrator
and shall not be effective until received by the Administrator. If no
beneficiary has been designated by a deceased grantee, or if the designated
beneficiaries have predeceased the grantee, the beneficiary shall be the
grantee’s estate.


 


SECTION 13.  EFFECTIVE DATE OF PLAN


 


This Plan shall become effective
upon approval by the stockholders in accordance with applicable law. Subject to
such approval by the stockholders and to the requirement that no Stock may be
issued hereunder prior to such approval, Stock Options and other Awards may be
granted hereunder on and after adoption of this Plan by the Board.


 


SECTION 14.  GOVERNING LAW


 


This Plan and all Awards
and actions taken thereunder shall be governed by Delaware law, applied without
regard to conflict of law principles.


 


	
  ADOPTED BY BOARD
  OF DIRECTORS:

  	
   

  	
  September
  6, 2001

  
	
   

  	
   

  	
   

  
	
  APPROVED
  BY STOCKHOLDERS:

  	
   

  	
  September
  6, 2001

  
	
   

  	
   

  	
   

  
	
  AMENDED
  AND RESTATED

  	
   

  	
   

  
	
  ADOPTED
  BY BOARD OF DIRECTORS:

  	
   

  	
  September
  21, 2004

  



 


12

















 


	
  AMENDED
  AND RESTATED

  	
   

  	
   

  
	
  APPROVED
  BY STOCKHOLDERS

  	
   

  	
  December
  31, 2004

  
	
   

  	
   

  	
   

  
	
  SECOND
  AMENDED AND RESTATED

  	
   

  	
   

  
	
  ADOPTED
  BY BOARD OF DIRECTORS:

  	
   

  	
  September
  15, 2005

  
	
   

  	
   

  	
   

  
	
  SECOND
  AMENDED AND RESTATED

  	
   

  	
   

  
	
  APPROVED
  BY STOCKHOLDERS

  	
   

  	
  October
  31, 2005

  
	
   

  	
   

  	
   

  
	
  THIRD
  AMENDED AND RESTATED

  	
   

  	
   

  
	
  ADOPTED
  BY BOARD OF DIRECTORS:

  	
   

  	
  November
  14, 2006

  
	
   

  	
   

  	
   

  
	
  THIRD
  AMENDED AND RESTATED

  	
   

  	
   

  
	
  APPROVED
  BY STOCKHOLDERS

  	
   

  	
  November
  14, 2006

  



 


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