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Exhibit 10.04
CONCORD COMMUNICATIONS, INC.
1995 STOCK PLAN
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1. PURPOSE. This 1995 Stock Plan (the "Plan') is intended to
provide incentives (a) to the employees of Concord Communications, Inc. (the
"Company'), its parent (if any) and any present or future subsidiaries of the
Company (collectively, "Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options which qualify
as "incentive stock options" under Section 422(b) of the Internal Revenue Code
of 1986, as amended (the "Code") granted hereunder ("ISO" or "ISOs"); (b) to
directors, employees and consultants of the Company and Related Corporations by
providing them with opportunities to purchase stock in the Company pursuant to
options granted hereunder which do not qualify as ISOs ("Non-qualified Option"
or "Non Qualified Options"); (c) to directors, employees and consultants of the
Company and Related Corporations by providing them with awards of stock in the
Company ("Awards"); and (d) to directors, employees and consultants of the
Company and Related Corporations by providing them with opportunities to make
direct purchases of stock in the Company ("Purchases"). Both ISOs and
Non-Qualified Options are referred to hereinafter individually as an "Option"
and collectively as "Options." As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation" as those
terms are defined in Section 425 of the Code.
l.A. OLD PLAN TERMINATED. Henceforth, the Company shall make no
grants under the Company's 1986 Stock Plan. Such Plan shall, however, continue
to govern all Options granted and outstanding thereunder.
2. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered
by the Board of Directors of the Company (the "Board"). The Board may appoint a
Stock Plan Committee (the "Committee") of two or more of its members to
administer this Plan. No member of the Committee, while a member, shall be
eligible to participate in this Plan. Subject to ratification of the grant of
each Option or Award and of the authorization of each Purchase by the Board (if
so required by applicable state law), and subject to the terms of the Plan, the
Committee, if so appointed, shall have the authority to (i) determine the
employees of the Company and Related Corporations (from among the class of
employees eligible under paragraph 3 to receive ISOs) to whom ISOs may be
granted, and to determine (from among the class of individuals and entities
eligible under paragraph 3 to receive Non-Qualified Options and Awards and to
make Purchases) to whom Non-Qualified Options, Awards and authorizations to make
Purchases may be granted; (ii) determine the time or times at which Options or
Awards may be granted or Purchases made; (iii) determine the option price of
shares subject to each Option, which price [with respect to ISOs] shall not be
less than the minimum specified in paragraph 6, and the purchase price of shares
subject to each Purchase; (iv) determine whether each Option granted shall be an
ISO or a Non-Qualified Option; (v) determine (subject to paragraph 7) the time
or times when each Option shall become exercisable and the duration of the
exercise period; (vi) determine whether restrictions such as repurchase options
are to be imposed on shares subject to Options, Awards and Purchases and the
nature of such restrictions, if any, and (vii) interpret the Plan and prescribe
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and rescind rules and regulations relating to it. If the Committee determines to
issue a Non-Qualified Option, it shall take whatever actions it deems necessary
under Section 422 of the Code and the regulations promulgated thereunder to
ensure that such Option is not treated as an ISO. The interpretation and
construction by the Committee of any provisions of the Plan or of any Option,
Award or authorization for any Purchase granted under it shall be final unless
otherwise determined by the Board. The Committee may from time to time adopt
such rules and regulations for carrying out the Plan as it may deem best. No
member of the Board or of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option, Award
or authorization for Purchase granted under it.
(b) The Committee may select one of its members as its
chairman, and shall hold meetings at such time and places as it may determine.
Acts by a majority of the Committee, or acts reduced to or approved in writing
by a majority of the members of the Committee, shall be the valid acts of the
Committee. All references in this Plan to the Committee shall mean the Board if
no Committee has been appointed. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee and thereafter
directly administer the Plan.
(c) Notwithstanding the provisions of paragraph 2(a), no
Option, Award or authorization to make a Purchase shall be granted to any person
who is, at the time of the proposed grant, a member of the Board, unless such
grant has been approved by a majority vote of the disinterested members of the
Board. All grants of Options, Awards and authorizations to make Purchases to
members of the Board shall in all other respects be made in accordance with the
provisions of this Plan applicable to other eligible persons. Members of the
Board who are either (i) eligible for Options, Awards or authorizations to make
Purchases pursuant to the Plan or (ii) have been granted Options, Awards or
authorizations to make Purchases may vote on any matters affecting the
administration of the Plan or the grant of any Options, Awards or authorizations
to make Purchases pursuant to the Plan, except that no such members shall act
upon the granting to himself of Options, Awards or authorizations to make
Purchases, but any such member may be counted in determining the existence of a
quorum at any meeting of the Board during which action is taken with respect to
the granting to him of Options, Awards or authorizations to make Purchases.
(d) Notwithstanding any other provision of this paragraph 2,
in the event the Company registers any class of any equity security pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), any grants to directors of Options made at any time from the effective
date of such registration until six months after the termination of such
registration shall be made only by the Board; provided, however, that if a
majority of the Board is eligible to participate in the Plan or in any other
stock option or other stock plan of the Company or any of its affiliates, or has
been so eligible at any time within the preceding year, any grant to directors
of Options must be made by, or only in accordance with the recommendation of, a
Committee consisting of three or more persons, who may but need not be directors
or employees of the Company, appointed by the Board but having full authority to
act in the matter, none of whom is eligible to participate in this Plan or any
other stock option or
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other stock plan of the Company or any of its affiliates, or has been eligible
at any time within the preceding year. The requirements imposed by the preceding
sentence shall also apply with respect to grants to officers who are not also
directors. Once appointed, the Committee shall continue to serve until otherwise
directed by the Board.
3. ELIGIBLE EMPLOYEES AND OTHERS. ISOs may be granted to any
employee of the Company or any Related Corporation. Those directors of the
Company who are not employees may not be granted ISOs under the Plan.
Non-Qualified Options, Awards and authorizations to make Purchases may be
granted to any director (whether or not an employee), employee or consultant of
the Company or any Related Corporation. The Committee may take into
consideration a recipient's individual circumstances in determining whether to
grant an ISO, a Non-Qualified Option or an authorization to make a Purchase.
Granting of any Option, Award or authorization to make a Purchase to any
individual or entity shall neither entitle that individual or entity to, nor
disqualify him from, participation in any other grant of Options, Awards or
authorizations to make Purchases.
4. STOCK. The stock subject to Options, Awards and Purchases shall
be authorized but unissued shares of Common Stock of the Company, par value $.0l
per share (the "Common Stock"), or shares of Common Stock reacquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 4,113,573, subject to adjustment as provided in
paragraph 13. Any such shares may be issued as ISOs, Non-Qualified Options or
Awards, or to persons or entities making Purchases, so long as the number of
shares so issued does not exceed such number, as adjusted. If any Option granted
under the Plan shall expire or terminate for any reason without having been
exercised in full or shall cease for any reason to be exercisable in whole or in
part, or if the Company shall reacquire any unvested shares issued pursuant to
Awards or Purchases, the unpurchased shares subject to such Options and any
unvested shares so reacquired by the Company shall again be available for grants
of Options, Awards and authorizations to make Purchases under the Plan.
5. GRANTING OF OPTIONS, AWARDS AND AUTHORIZATIONS TO MAKE
PURCHASES. Options, Awards and authorizations to make Purchases may be granted
under the Plan at any time after December 5, 1995 and prior to December 4, 2005.
The date of grant of an Option, Award or authorization to make a Purchase under
the Plan will be the date specified by the Committee at the time it grants the
Option, Award or authorization to make a Purchase; provided, however, that such
date shall not be prior to the date on which the Committee makes the grant. The
Committee shall have the right, with the consent of the optionee, to convert an
ISO granted under the Plan to a Non-Qualified Option pursuant to paragraph 16.
6. Minimum Option Price: Iso Limitations.
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A. The price per share specified in the agreement relating
to each Non-Qualified Option granted under the Plan shall in no event be less
than the lesser of (i) the book value per share of Common Stock as of the end of
the fiscal year of the Company immediately preceding the date of such grant, or
(ii) 50 percent of the fair market value per share of Common Stock on the date
of such grant.
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B. The price per share specified in the agreement relating
to each ISO granted under the Plan shall not be less than the fair market value
per share of Common Stock on the date of such grant. In the case of an ISO to be
granted to an employee owning stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or any
Related Corporation, the price per share specified in the agreement relating to
such ISO shall not be less than 110 percent of the fair market value of Common
Stock on the date of grant.
C. In no event shall the aggregate fair market value
(determined at the time the option is granted) of Common Stock for which
incentive stock options granted to any employee are exercisable for the first
time by such employee during any calendar year (under all stock option plans of
the Company and any Related Corporation) exceed $100,000.
D. If, at the time an Option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
stock is traded, if such Stock is then traded on a national securities exchange;
or (ii) the last reported sale price (on that date) of the Common Stock on the
NASDAQ National Market List, if the Common Stock is not then traded on a
national securities exchange; or (iii) the dosing bid price (or average of bid
prices) last quoted (on that date) by an established quotation service for
over-the-counter securities, if the Common Stock is not reported on the NASDAQ
National Market list. However, if the Common Stock is not publicly traded at the
time an Option is granted under the Plan, "fair market value" shall be deemed to
be the fair value of the Common Stock as determined by the Committee after
taking into consideration all factors which it deems appropriate, including,
without limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
7. OPTION DURATION. Subject to earlier termination as provided in
paragraphs 9 and 10, each Option shall expire on the date specified by the
Committee, but not more than (i) ten years and one day from the date of grant in
the case of Non-Qualified Options, (ii) ten years from the date of grant in the
case of ISOs generally, and (iii) five years from the date of grant in the case
of ISOs granted to an employee owning stock possessing more than ten percent of
the total combined voting power of all classes of stock of the Company or any
Related Corporation. Subject to earlier termination as provided in paragraphs 9
and 10, the term of each ISO shall be the term set forth in the original
instrument granting such ISO, except with respect to any part of such ISO that
is converted into a Non-Qualified Option pursuant to paragraph 16.
8. EXERCISE OF OPTION. Subject to the provisions of paragraphs 9
through 12, each Option granted under the Plan shall be exercisable as follows:
A. The Option shall either be fully exercisable on the date
of grant or shall become exercisable thereafter in such installments as the
Committee may specify.
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B. Once an installment becomes exercisable it shall remain
exercisable until expiration or termination of the Option, unless otherwise
specified by the Committee.
C. Each Option or installment may be exercised at any time
or from time to time, in whole or in part, for up to the total number of shares
with respect to which it is then exercisable.
D. The Committee shall have the right to accelerate the
date of exercise of any installment of any Option; provided that, subject to the
provisions of paragraph 21, the Committee shall not accelerate the exercise date
of any installment of any Option granted to any employee as an ISO (and not
previously converted into a Non-qualified Option pursuant to paragraph 16) if
such acceleration would violate the annual vesting limitation contained in
Section 422(b)(7) of the code, as amended, which provides generally that the
aggregate fair market value (determined at the time the option is granted) of
the stock with respect to which ISOs granted to any employee are exercisable for
the first time by such employee during any calendar year (under au plans of the
Company and any Related Corporation) shall not exceed $100,000.
9. TERMINATION OF EMPLOYMENT. If an ISO optionee ceases to be
employed by the company and all Related Corporations other than by reason of
death or disability as defined in paragraph 10, no further installments of his
ISOs shall become exercisable, and his ISOs shall terminate after the passage of
60 days from the date of termination of his employment, but in no event later
than on their specified expiration dates, except to the extent that such ISOs
(or unexercised installments thereon have been converted into Non-Qualified
Options pursuant to paragraph 16. Leave of absence with the written approval of
the Committee shall not be considered an interruption of employment under the
Plan, provided that such written approval contractually obligates the Company or
any Related Corporation to continue the employment of the employee after the
approved period of absence. Employment shall also be considered as continuing
uninterrupted during any other bona fide leave of absence (such as those
attributable to illness, military obligations or governmental service) provided
that the period of such leave does not exceed 90 days or, if longer, any period
during which such optionee's right to reemployment is guaranteed by statute.
ISOs granted under the Plan shall not be affected by any change of employment
within or among the Company and Related Corporations, so long as the optionee
continues to be an employee of the Company or any Related Corporation. Nothing
in the Plan shall be deemed to give any grantee of any Option, Award or
authorization to make a Purchase the right to be retained in employment or other
service by the Company or any Related Corporation for any period of time. In
granting any Non-Qualified Option, the Committee may specify that such
Non-Qualified Option shall be subject to the restrictions set forth herein with
respect to ISOs, or to such other termination or cancellation provisions as the
Committee may determine.
10. DEATH; DISABILITY; DISSOLUTION. If an ISO optionee ceases to be
employed by the Company and all Related Corporations by reason of his death, any
ISO of his may be exercised, to the extent of the number of shares with respect
to which he could have exercised it on the date of his death, by his estate,
personal representative or beneficiary who has acquired the ISO by
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will or by the laws of descent and distribution, at any time prior to the
earlier of the ISO's specified expiration date or 180 days from the date of the
optionee's death.
If an ISO optionee ceases to be employed by the Company and all Related
Corporations by reason of his disability, he shall have the right to exercise
any ISO held by him on the date of termination of employment, to the extent of
the number of shares with respect to which he could have exercised it on that
date, at any time prior to the earlier of the ISO's specified expiration date or
180 days from the date of the termination of the optionee's employment. For the
purposes of the Plan, the term "disability" shall mean "permanent and total
disability" as defined in Section 22(e)(3) of the Code or any successor statute.
In granting any Non-Qualified Option, the Committee may specify that
such Non-Qualified Option shall be subject to the restrictions set forth herein
with respect to ISOs, or to such other termination and cancellation provisions
as the Committee may determine.
11. ASSIGNABILITY. No Option shall be assignable or transferable by
the optionee except by will or by the laws of descent and distribution, and
during the lifetime of the optionee each Option shall be exercisable only by
him.
12. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may from time to time confer
authority and responsibility on one or more of its own members and/or one or
more officers of the Company to execute and deliver such instruments. The proper
officers of the Company are authorized and directed to take any and all action
necessary or advisable from time to time to carry out the terms of such
instruments.
13. ADJUSTMENTS. Upon the happening of any of the following
described events, an optionee's rights with respect to Options granted to him
hereunder, and the recipient's rights with respect to Common Stock acquired
pursuant to a Purchase or Award hereunder, shall be adjusted as hereinafter
provided, unless otherwise specifically provided in the written agreement
between the recipient and the Company relating to such Option, Purchase or
Award.
A. In the event shares of Common Stock shall be subdivided
or combined into a greater or smaller number of shares or if, upon a merger,
consolidation, reorganization, split-up, liquidation, combination,
recapitalization or the like of the Company, the shares of Common Stock shall be
exchanged for other securities of the Company or of another corporation, each
optionee shall be entitled, subject to the conditions herein stated, to purchase
such number of shares of common stock or amount of other securities of the
Company or such other corporation as were exchangeable for the number of shares
of Common Stock which such optionee would have been entitled to purchase except
for such action, and appropriate
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adjustments shall be made in the purchase price per share to reflect such
subdivision, combination, or exchange; and
B. In the event the Company shall issue any of its shares
as a stock dividend upon or with respect to the shares of stock of the class
which shall at the time be subject to option hereunder, each optionee upon
exercising an Option shall be entitled to receive (for the purchase price paid
upon such exercise) the shares as to which he is exercising his Option and, in
addition thereto (at no additional cost), such number of shares of the class or
classes in which such stock dividend or dividends were declared or paid, and
such amount of cash in lieu of fractional shares, as he would have received if
he had been the holder of the shares as to which he is exercising his Option at
all times between the date of grant of such Option and the date of its exercise.
C. If any person or entity owning restricted Common Stock
obtained by exercise of an Option or by a Purchase or Award made hereunder
receives new or additional or different shares or securities ("New Securities")
in connection with a corporate transaction described in subparagraph A above or
a stock dividend described in subparagraph B above as a result of owning such
restricted Common Stock, such New Securities shall be subject to all of the
conditions and restrictions applicable to the restricted Common Stock with
respect to which such New Securities were issued.
D. Notwithstanding the foregoing, any adjustments made
pursuant to subparagraphs A or B with respect to ISOs shall be made only after
the Committee, after consulting with counsel for the Company, determines whether
such adjustments would constitute a "modification" of such ISOs as that term is
defined in Section 424 of the Code, or would cause any adverse tax consequences
for the holders of such ISOs. No adjustments shall be made for dividends paid in
cash or in property other than securities of the Company.
E. No fractional shares shall actually be issued under the
Plan. Any fractional shares which, but for this subparagraph E, would have been
issued to an optionee pursuant to an Option, shall be deemed to have been issued
and immediately sold to the Company for their fair market value, and the
optionee shall receive from the Company cash in lieu of such fractional shares.
F. Upon the happening of any of the foregoing events
described in subparagraphs A or B above, the class and aggregate number of
shares set forth in paragraph 4 hereof that are subject to Options, Awards or
authorizations to make Purchases which previously have been or subsequently may
be granted under the Plan shall also be appropriately adjusted to reflect the
events described in such subparagraphs. The Committee shall determine the
specific adjustments to be made under this paragraph 13 and, subject to
paragraph 2, its determination shall be conclusive.
14. MEANS OF EXERCISING OPTIONS. An Option (or any part or
installment thereof) shall be exercised by giving written notice to the Company
at its principal office address. Such notice shall identify the Option being
exercised and specify the number of shares as to which such
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Option is being exercised, accompanied by full payment of the purchase price
therefor either (a) in United States dollars in cash or by check, or (b) at the
discretion of the Committee, through delivery of shares of Common Stock having
fair market value equal as of the date of the exercise to the cash exercise
price of the Option, or (c) at the discretion of the Committee, by delivery of
the optionee's personal recourse note bearing interest payable not less than
annually at no less than 100% of the lowest applicable federal rate, as defined
in Section 1274(d) of the Code, or (d) at the discretion of the Committee, by
any combination of (a), (b) and (c) above. If the Committee exercises its
discretion to permit payment of the exercise price of an ISO by means of the
methods set forth in clauses (b) or (c) of the preceding sentence, such
discretion shall be exercised in writing at the time of the grant of the ISO in
question. The holder of an Option shall not have the rights of a shareholder
with respect to the shares covered by his Option until the date of issuance of a
stock certificate to him for such shares. Except as expressly provided above in
paragraph 13 with respect to changes in capitalization and stock dividends, no
adjustment shall be made for dividends or similar rights for which the record
date is before the date such stock certificate is issued.
15. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the Board
on December 5, 1995, subject to approval of the Plan by the holders of a
majority of the outstanding shares of the Company at the next meeting of
stockholders. The Plan shall expire on December 4, 2005 (except as to Options
outstanding on that date). Subject to the provisions of paragraph 5 above,
Options, Awards and authorizations to make Purchases may be granted under the
Plan prior to the date of stockholder approval of the Plan. If the approval of
stockholders is not obtained by December 4, 1996, any grants of ISOs under the
Plan made prior to that date will be rescinded. The Board may terminate or amend
the Plan in any respect at any time, except that, without the approval of such
stockholders obtained within 12 months before or after the Board adopts a
resolution authorizing any of the following actions: (a) the total number of
shares that may be issued under the Plan may not be increased (except by
adjustment pursuant to paragraph 13); (b) the provisions of paragraph 3
regarding eligibility for grants of ISOs may not be modified; (c) the provisions
of paragraph 6(b) regarding the exercise price at which shares may be offered
pursuant to ISOs may not be modified (except by adjustment pursuant to paragraph
13); and (d) the expiration date of the Plan may not be extended. Except as
provided in the fourth sentence of this paragraph 15 or in paragraph 21, in no
event may action of the Board or stockholders alter or impair the rights of an
optionee, purchaser or Award recipient, without his consent, under any Option,
Award or authorization to make a Purchase previously granted to him.
16. CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS: TERMINATION OF
ISOs. The Committee, at the written request of any optionee, may in its
discretion take such actions as may be necessary to convert such optionee's ISOs
(or any installments or portions of installments thereof) that have not been
exercised on the date of conversion into Non-Qualified Options at any time prior
to the expiration of such ISOs, regardless of whether the optionee is an
employee of the Company or a Related Corporation at the time of such conversion.
Such actions may include, but not be limited to, extending the exercise period
or reducing the exercise price of the appropriate installments of such Options.
At the time of such conversion, the Committee (with the consent of the Optionee)
may impose such conditions on the exercise of the resulting Non-
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Qualified Options as the Committee in its discretion may determine, provided
that such conditions shall not be inconsistent with this Plan. Nothing in the
Plan shall be deemed to give any optionee the right to have such optionee's ISOs
converted into Non-Qualified Options, and no such conversion shall occur until
and unless the Committee takes appropriate action. The Committee, with the
consent of the optionee, may also terminate any portion of any ISO that has not
been exercised at the time of such termination.
17. APPLICATION OF FUNDS. The proceeds received by the Company from
the sale of shares pursuant to Options granted and Purchases authorized under
the Plan shall be used for general corporate purposes.
18. GOVERNMENTAL REGULATION. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
19. WITHHOLDING OF ADDITIONAL INCOME TAXES. The Company, in
accordance with Section 3402(a) of the Code, may, upon exercise of a
Non-Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, or the making of a Disqualifying
Disposition (as defined in paragraph 20) require the optionee exercising such
Option, Award recipient or purchaser to pay additional withholding taxes in
respect of the amount that is considered compensation includible in such
person's gross income. The Committee in its discretion may condition (i) the
exercise of an Option, (ii) the grant of an Award, (iii) the making of a
Purchase of Common Stock for less than its fair market value, or (iv) the
vesting of restricted Common Stock acquired by exercising an Option, making a
Purchase or receiving an Award, on the purchaser's or recipient's payment of
such additional withholding taxes.
20. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION. Each employee
who receives ISOs shall agree to notify the Company in writing immediately after
the employee makes a disqualifying disposition of any Common Stock received
pursuant to the exercise of an ISO (a "Disqualifying Disposition").
Disqualifying Disposition means any disposition (including any sale) of such
stock before the later of (a) two years after the employee was granted the ISO
under which he acquired such stock, or (b) one year after the employee acquired
such stock by exercising such ISO. If the employee has died before such stock is
sold, these holding period requirements do not apply and no Disqualifying
Disposition will thereafter occur.
21. CHANGE IN CONTROL. In the event that the Company becomes a party
to a merger, consolidation, reorganization or similar corporate transaction in
which the Company is not, in effect, the acquiring corporation, or which is not
solely a consolidation with the Company's parent, or shall determine to
liquidate or dissolve, the Committee in its discretion may take one or more of
the following actions: (i) provide for the acceleration and/or termination of
any time period relating to the exercise of the Options, (ii) provide for the
purchase of the Options, upon the optionee's request, for the amount in cash
that could have been received upon the exercise of the Options and sale of the
shares obtained thereby, (iii) adjust the terms of the Options in a manner
determined by the Committee, (iv) cause the Options to be assumed, or new rights
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substituted therefor, by another entity or (v) make such other provision as the
Committee may consider equitable and in the best interests of the Company.
22. GOVERNING LAWS; CONSTRUCTION. The validity and construction of
the Plan and the instruments evidencing Options, Awards and Purchases shall be
governed by the laws of The Commonwealth of Massachusetts. In construing this
Plan, the singular shall include the plural and the masculine gender shall
include the feminine and neuter, unless the context otherwise requires.
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Amendment No. 1 to
1995 Stock Option Plan of
CONCORD COMMUNICATIONS, INC.
Section 4 of the 1995 Stock Option Plan is hereby amended by deleting the number
4,113,573 and substituting the number 6,113,573 in place thereof.