ex10_2.htm


    
      

    

    Exhibit
10.2

    


    TRIMBLE
NAVIGATION LIMITED

     

    AMENDED
AND RESTATED EMPLOYEE STOCK PURCHASE PLAN

    (as
amended March 6, 2009)

     

    The
following constitute the provisions of the Employee Stock Purchase Plan of
Trimble Navigation Limited.

     

    1.       
     Purpose.  The
purpose of the Plan is to provide employees of the Company and its Designated
Subsidiaries with an opportunity to purchase Common Stock of the Company through
accumulated payroll deductions.  It is the intention of the Company to
have the Plan qualify as an “Employee Stock Purchase Plan” under
Section 423 of the Internal Revenue Code of 1986, as amended, although the
Company makes no undertaking nor representation to maintain such
qualification.  In addition, this Plan document authorizes the grant
of options under a non-423(b) component to the Plan which do not qualify under
Section 423(b) of the Code pursuant to rules, procedures or sub-plans adopted by
the Board (or a committee authorized by the Board) designed to achieve tax,
securities law compliance or other Company objectives.

     

    2.       
     Definitions.

     

    (a)           “Board” shall mean the
Board of Directors of the Company.

     

    (b)           “Brokerage Account”
means the general securities brokerage account, or such other account or record
determined appropriate by the Company, established and maintained for the Plan
with any entity selected by the Company, in its discretion, to assist in the
administration of, and purchase of shares under the Plan.

     

    (c)           “Code” shall mean the
Internal Revenue Code of 1986, as amended.

     

    (d)           “Common Stock” shall
mean the Common Stock of the Company.

     

    (e)           “Code Section 423(b) Plan
Component” means the component of this Plan which is designed to meet the
requirements set forth in Section 423(b) of the Code.  The provisions
of the Code Section 423(b) Plan Component shall be construed, administered and
enforced in accordance with Section 423(b) of the Code.

     

    (f)     
      “Company” shall mean
Trimble Navigation Limited.

     

    (g)           “Compensation” shall
mean all regular straight time gross earnings,  commissions, overtime,
shift premium, lead pay and other similar compensation, but excluding bonuses
resulting from any profit sharing plans, automobile allowances, relocation and
other non-cash compensation.  Unless determined otherwise by the Board
(or a committee authorized by the Board), “Compensation” shall not include
incentive bonuses.

     

    (h)           “Continuous Status as an
Employee” shall mean the absence of any interruption or termination of
service as an Employee.  Continuous Status as an Employee shall not be
considered interrupted in the case of a leave of absence agreed to in writing by
the Company, or one of its Subsidiaries, provided that such leave is for a
period of not more than 90 days or reemployment upon the expiration of such
leave is guaranteed by contract or statute.


    
      
         

      

      
        - 1
-

        
          

        

      

      
         

      

    


    (i)      
     “Designated
Subsidiaries” shall mean the Subsidi­aries which have been designated
by the Board from time to time in its sole discretion as eligible to participate
in the Plan.  The Board (or a committee authorized by the Board) will
determine whether employees of any Designated Subsidiary shall participate in
the Code Section 423(b) Plan Component or the Non-423(b) Plan
Component.

     

    (j)    
       “Employee” shall mean
any person, including an officer, who is an employee of the Company or a
Designated Subsidiary.  The Board (or a committee authorized by the
Board) shall have the discretion to limit offerings under the Plan to employees
of the Company or a Designated Subsidiary whose customary employment with the
Company or a Designated Subsidiary is at least twenty (20) hours per week and
more than five (5) months in any calendar year, provided that these eligibility
requirements are applied uniformly to employees offered participation in the
Code Section 423(b) Plan Component of the Plan.

     

    (k)      
     “Enrollment Date”
shall mean the first day of each Offering Period.

     

    (l)      
      “Exercise Date” shall
mean the last day of each Offering Period.

     

    (m)           “Maximum Offering”
shall mean, with respect to some or all participants in the Non-423(b) Plan
Component, a maximum number or value of shares of the Common Stock made
available for purchase in a specified period (e.g., a 12-month period) in
specified countries, locations or to Employees of specified Designated
Subsidiaries. Such maximum shall be determined by the Board (or a committee
authorized by the Board) in such a manner as to avoid securities filings, to
achieve certain tax results or to meet other Company objectives.

     

    (n)           “Non-423(b) Plan
Component” means a component of this Plan which does not meet the
requirements set forth in Section 423(b) of the Code, as amended.

     

    (o)           “Offering Period”
shall mean a period of six (6) months during which an option granted pursuant to
the Plan may be exercised, or different period as determined by the Board,
provided no Offering Period exceeds twenty-seven (27)
months.  Notwithstanding the foregoing, the first Offering Period
shall commence August 15, 1988 and end December 31, 1988 and the Offering Period
commencing July 1, 2006 shall end February 28, 2007.

     

    (p)           “Option Price” shall
mean the lower of (i) eighty-five percent (85%) of the fair market value of
a share of Common Stock on the Enrollment Date or (ii) eighty-five percent
(85%) of the fair market value of a share of Common Stock on the Exercise Date
unless the Board (or a committee authorized by the Board) sets an option price
higher than this amount.

     

    (q)           “Plan” shall mean this
Amended and Restated Employee Stock Purchase Plan, as set forth in this document
and as hereafter amended from time to time, which includes a Code Section 423(b)
Plan Component and a Non-423(b) Plan Component.

     

    (r)     
      “Subsidiary” shall
mean a corporation, domestic or foreign, of which not less than 50% of the
voting shares are held by the Company or a Subsidiary, whether or not such
corporation now exists or is hereafter organized or acquired by the Company or a
Subsidiary.


    
      
         

      

      
        - 2
-

        
          

        

      

      
         

      

    


    3.      
      Eligibility.

     

    (a)           Any
Employee as defined in paragraph 2 who is employed by the Company or a
Designated Subsidiary at the time that the subscription agreement is required to
be submitted for a given Offering Period is eligible to participate in the Plan
for that Offering Period (subject to paragraph 10 below).  However,
the Board (or a committee authorized by the Board) shall have the discretion to
set a minimum waiting period for Employees to become eligible to participate in
an Offering Period provided that period is not more than two (2) years after
employment with the Company or a Designated Subsidiary
begins.  However, notwithstanding the foregoing, for purposes of the
first Offering Period only, any Employee defined in paragraph 2 who was
employed by the Company or one of its Subsidiaries as of August 9, 1988 shall be
eligible to participate in the Plan.

     

    (b)           Any
provisions of the Plan to the contrary notwith­standing, no Employee shall
be granted an option under the Plan (i) if, immediately after the grant,
such Employee (or any other person whose stock would be attributed to such
Employee pursuant to Section 424(d) of the Code) would own stock and/or hold
outstanding options to purchase stock possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock of the Company
or of any Subsidiary of the Company, or (ii) which permits his or her rights to
purchase stock under all employee stock purchase plans of the Company and its
Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the fair market value of the shares at
the time such option is granted) for each calendar year in which such option is
outstanding at any time (or other such limit, as imposed under Section 423 of
the Code or final regulations issued thereunder).

     

    4.      
      Offering
Periods.  The Plan shall be implemented by consecutive Offering
Periods with a new Offering Period commencing on or about January 1 and July 1
of each year; provided, however, that the first Offering Period shall commence
on or about August 15, 1988.  Effective in 2007 and thereafter
new Offering Periods shall commence on or about March 1 and September 1 of each
year. The Plan shall continue thereafter until termi­nated in accordance
with paragraph 19 hereof.  Subject to the shareholder approval
requirements of paragraph 19, the Board shall have the power to change the
commencement or dura­tion of Offering Periods with respect to future
offerings without shareholder approval if such change is announced at least
fifteen (15) days prior to the scheduled beginning of the first Offering Period
to be affected.  The Board (or a committee authorized by the Board)
may decide that for administrative reasons, the payroll deductions related to
the last pay date during the Offering Period will not be applied to the purchase
of shares for that particular Offering Period, but instead will be rolled over
to the following Offering Period (provided that the participant is participating
in the following Offering Period).

     

    5.        
    Participation.

     

    (a)           An
eligible Employee may become a participant in the Plan by completing a
subscription agreement authorizing payroll deductions in the form required by
the Company and filing it with the Company (or third party designated by the
Company) by the time specified by the Company, as set forth in the subscription
agreement, unless a later time for filing the subscription agreement is set by
the Board (or a committee authorized by the Board) for all eligible Employees
with respect to a given Offering Period.

     

    (b)           A
participant’s authorized payroll deductions shall be deducted from each paycheck
paid during an Offering Period and shall continue until changed by the
participant, as provided in paragraph 10 or by amendment or termination of this
Plan.

     

    6.        
    Payroll
Deductions.

     

    (a)           At
the time a participant files his or her subscrip­tion agreement, he or she
shall elect to have payroll deductions made on each payday during the Offering
Period in an amount not exceeding ten percent (10%) of the Compensation which he
receives on each payday during the Offering Period, and the aggregate of such
payroll deductions during the Offering Period shall not exceed ten percent (10%)
of the participant's aggregate Compensation during said Offering
Period.


    
      
         

      

      
        - 3
-

        
          

        

      

      
         

      

    


    (b)           All
payroll deductions made for a participant shall be credited to his or her
account under the Plan.  A participant may not make any additional
payments into such account.

     

    (c)           A
participant may discontinue his or her participa­tion in the Plan as
provided in paragraph 10, or may decrease, but not increase, the rate of his or
her payroll deductions during the Offering Period (within the limitations of
paragraph 6(a)) by com­pleting or filing with the Company a new
subscription agreement authorizing a change in payroll deduction
rate.  The change in rate shall be effective with the first full
payroll period following five (5) business days after the Company's receipt
of the new subscription agreement.  A participant's subscription
agreement shall remain in effect for successive Offering Periods unless revised
as provided herein or terminated as provided in paragraph 10.

     

    (d)           Notwithstanding
the foregoing, to the extent neces­sary to comply with Section 423(b)(8) of
the Code and para­graph 3(b) herein, a participant's payroll deductions
may be decreased to 0% at such time during any Offering Period which is
scheduled to end during the current calendar year (the “Current Offering
Period”) that the aggregate of all payroll deductions which were previously used
to purchase stock under the Plan in a prior Offering Period which ended during
that calendar year plus all payroll deductions accumulated with respect to the
Current Offering Period equal $21,250.  Payroll deductions shall
recommence at the rate provided in such participant's subscription agreement at
the beginning of the first Offering Period which is scheduled to end in the
following calendar year, unless terminated by the participant as provided in
paragraph 10.

     

    (e)           Notwithstanding
any provisions to the contrary in the Plan, the Board may allow Employees to
participate in the Plan via cash contributions instead of payroll deductions if
payroll deductions are not permitted under applicable local law (and if the
Employee is participating in the Non-423(b) Plan Component if not permitted
under Section 423 of the Code).

     

    7.         
   Grant of
Option.

     

    (a)           On
the Enrollment Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to purchase on
each Exercise Date of  such Offering Period up to a number of shares
of Common Stock determined by dividing such Employee’s payroll deductions
accumulated prior to such Exercise Date and retained in the partic­ipant’s
account as of the Exercise Date by the Option Price; provided that in no event
shall an Employee be permitted to purchase more than 12,500 shares of Common
Stock on any Exercise Date (as adjusted pursuant to paragraph 18, if
applicable), and provided further that such purchase shall be subject to the
limitations set forth in paragraphs 3(b) and 12 hereof. Exercise of the
option shall occur as provided in paragraph 8, unless the participant has
withdrawn pursuant to paragraph 10, and shall expire on the last day of the
Offering Period.  Fair market value of a share of Common Stock shall
be determined as provided in paragraph 7(b) herein.

     

    (b)           The
fair market value of Common Stock on a given date shall be determined by the
Board in its discretion; provided, however, that where there is a public market
for the Common Stock, the fair market value per share shall be the closing price
of the Common Stock for such date, as reported by the NASDAQ National Market
System, or, in the event the Common Stock is listed on a different stock
exchange, the fair market value per share shall be the closing price on such
exchange on such date, as reported in the Wall Street Journal, or if no sales
occurred on such date, then on the date immediately prior to such date on which
sales prices are reported.


    
      
         

      

      
        - 4
-

        
          

        

      

      
         

      

    


    8.           Exercise of
Option.  Unless a participant withdraws from the Plan as
provided in paragraph 10 below, his or her option for the purchase of
shares will be exercised automatically on the Exercise Date, and the maximum
number of whole shares subject to the option shall be purchased for such
participant at the applicable option price with the accumulated payroll
deductions in his or her account.  The shares purchased hereunder will
be credited to the Brokerage Account.  No fractional shares will be
purchased and any payroll deductions accumulated in a participant's account
which are not used to purchase shares shall remain in the participant’s account
for the subsequent Offering Period, subject to an earlier with­drawal as
provided in paragraph 10.  During a participant’s life­time,
a participant’s option to purchase shares hereunder is exercisable only by him
or her.

     

    9.           Delivery.  A
participant hereunder may elect at any time on a form acceptable to the Company
to have all or part of the shares credited to the Brokerage Account on his or
her behalf sold at participant’s expense and cash paid to
participant.  A participant under the Code Section 423(b) Plan
Component hereunder may elect, at any time after two (2) years following the
Exercise Date of any Offering Period and on a form acceptable to the Company, to
have all or part of the shares purchased with respect to such Offering Period
and credited to the Brokerage Account on his or her behalf: (i) transferred to
the participant’s individual brokerage account established at the participant’s
expense; (ii) issued to the participant or his or her designee in the form of a
stock certificate.

     

    10.           Withdrawal; Termination of
Employment.

     

    (a)           A
participant may withdraw all but not less than all the payroll deductions
credited to his or her account and not yet used to exercise his or her option
under the Plan at any time by giving written notice to the Company (or third
party designated by the Company) in the form required by the
Company.  All of the participant's payroll deductions credited to his
or her account will be paid to such participant promptly after receipt of notice
of withdrawal and such participant's option for the Offering Period will be
automatically terminated, and no further payroll deductions for the purchase of
shares will be made during the Offering Period.  If a participant
withdraws from an Offering Period, payroll deductions will not resume at the
begin­ning of the succeeding Offering Period unless the participant delivers
to the Company a new subscription agreement.

     

    (b)           Upon
termination of the participant’s Continuous Status as an Employee prior to the
Exercise Date for any reason, including retirement or death, (i) the payroll
deductions credited to such participant’s account during the Offering Period but
not yet used to exercise the option will be returned to such participant or, in
the case of his or her death, to the person or persons entitled thereto under
paragraph 14, and such participant’s option will be automatically
terminated, and (ii) the participant’s interest in the Brokerage Account shall
be liquidated in the following manner.  As part of the procedure to
liquidate the participant’s interest in the Brokerage Account, the participant
may elect in writing, on a form acceptable to the Company and received by the
designated person at the Company within thirty (30) days of the termination, to
have the number of shares credited to the Brokerage Account on behalf of the
participant sold at the participant’s expense and cash paid to the participant,
or to have such shares transferred to the participant’s individual brokerage
account established at the participant’s expense.  If the participant
does not request a sale or transfer by the deadline set forth above or requests
to receive a stock certificate, a certificate for the shares credited to the
Brokerage Account on his or her behalf will be issued to the
participant.

     

    (c)           A
participant’s withdrawal from an Offering Period will not have any effect upon
his or her eligibility to participate in any similar plan which may hereafter be
adopted by the Company or in succeeding Offering Periods which commence after
the termination of the Offering Period from which the participant
withdraws.


    
      
         

      

      
        - 5
-

        
          

        

      

      
         

      

    


    11.           Interest.  No
interest shall accrue on the payroll deductions of a participant in the Plan,
except as may be required by applicable law, as determined by the Company, for
participants in the Non-423(b) Plan Component (or the Code Section 423(b) Plan
Component if permitted under Code Section 423).

     

    12.           Stock.

     

    (a)           The
maximum number of shares of Common Stock which shall be made available for sale
under the Plan shall be 15,550,000 million shares, subject to adjustment upon
changes in capitali­zation of the Company as provided in
paragraph 18.  If on a given Exercise Date the number of shares
with respect to which options are to be exercised exceeds the number of shares
then available under the Plan or the Maximum Offering, if any, the Company shall
make a pro rata allocation of the shares remaining available for purchase in as
uniform a manner as shall be practicable and as it shall determine to be
equitable.  The pro rata allocation shall be limited, in the case of
exceeding the Maximum Offering, to those participants in the countries,
locations or Designated Subsidiaries in the specified Maximum
Offering.

     

    (b)           The
participant will have no interest or voting right in shares covered by his or
her option until such option has been exercised.

     

    (c)           Shares
to be delivered to a participant under the Plan will be registered in the name
of the participant or in the name of the participant and his or her
spouse.

     

    13.           Administration.  The
Plan shall be administered by the Board or a committee of members of the Board
appointed by the Board.  The administration, interpretation or
application of the Plan by the Board or its committee shall be final, conclusive
and binding upon all participants.  Members of the Board who are
eligible Employees are permitted to participate in the Plan.

     

    14.           Designation of
Beneficiary.

     

    (a)           If
permitted by the Board (or a committee authorized by the Board), a participant
may file a written designation of a beneficiary who is to receive any shares and
cash, if any, from the participant's account under the Plan in the event of such
partici­pant's death subsequent to an Exercise Date on which the option is
exercised but prior to delivery to such participant of such shares and
cash.  In addition, a participant may file a written designa­tion
of a beneficiary who is to receive any cash from the participant's account under
the Plan in the event of such participant's death prior to exercise of the
option, if permitted by the Board (or a committee authorized by the
Board).

     

    (b)           Such
designation of beneficiary may be changed by the participant at any time by
written notice.  In the event of the death of a participant and in the
absence of a beneficiary validly designated under the Plan who is living at the
time of such partic­ipant’s death, the Company shall deliver such shares
and/or cash to the executor, administrator or personal representative of the
estate of the participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company), the Company, in its discretion, may
deliver such shares and/or cash to the spouse or to any one or more dependents
or relatives of the participant, or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may
designate.

     

    15.           Transferability.  Neither
payroll deductions credited to a participant's account nor any rights with
regard to the exercise of an option or to receive shares under the Plan may be
assigned, transferred, pledged or otherwise disposed of in any way (other than
by will, the laws of descent and distribution or as provided in paragraph 14
hereof) by the participant.  Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds from an Offering Period in
accordance with paragraph 10.


    
      
         

      

      
        - 6
-

        
          

        

      

      
         

      

    


    16.           Use of
Funds.  All payroll deductions received or held by the Company
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll
deductions.

     

    17.           Reports.  Individual
accounts will be maintained for each participant in the
Plan.  Statements of account will be given to participating Employees
semi-annually promptly following the Exercise Date, which statements will set
forth the amounts of payroll deductions, the per share purchase price, the
number of shares purchased and the remaining cash balance, if any.

     

    18.           Adjustments Upon Changes in Capitalization.  Subject
to any required action by the shareholders of the Company, the number of shares
of Common Stock covered by each option under the Plan which has not yet been
exercised and the number of shares of Common Stock which have been authorized
for issuance under the Plan but have not yet been placed under option
(collectively, the “Reserves”), as well as the price per share of Common Stock
covered by each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclas­sification of the Common Stock, or any other
increase or decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
“effected without receipt of consideration.”  Such adjustment shall be
made by the Board, whose determination in that respect shall be final, binding
and conclusive.  Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option.

     

    In the
event of the proposed dissolution or liquidation of the Company, the Offering
Period will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Board.   In the event of
a proposed sale of all or substan­tially all of the assets of the Company,
or the merger of the Com­pany with or into another corporation, any Offering
Periods then in progress shall be shortened by setting a new Exercise Date (the
“New Exercise Date”) and any Offering Periods then in progress shall end on the
New Exercise Date.  The New Exercise Date shall be before the date of
the Company’s proposed sale or merger.  The Board shall notify each
participant in writing, at least ten (10) business days prior to the New
Exercise Date, that the Exercise Date for the participant's option has been
changed to the New Exercise Date and that the participant's option shall be
exercised automatically on the New Exercise Date, unless prior to such date the
participant has with­drawn from the Offering Period as provided in paragraph
10 hereof.

     

    19.           Amendment or
Termination.  The Board may, at any time and for any reason,
terminate or amend the Plan.  Except as provided in paragraph 18,
no such termination can adversely affect options previously granted, provided
that an Offering Period may be terminated by the Board on any Exercise Date if
the Board determines that the termination of the Plan is in the best interests
of the Company and its shareholders.  In addition, to the extent
necessary to comply with Section 423 of the Code (or any successor rule or
provision or any other applicable law or regula­tion), the Company shall
obtain shareholder approval in such a manner and to such a degree as so
required.

     

    20.           Notices.  All
notices or other communications by a participant to the Company under or in
connection with the Plan shall be deemed to have been duly given when received
in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.


    
      
         

      

      
        - 7
-

        
          

        

      

      
         

      

    


    21.           Shareholder
Approval.  Continuance of the Plan shall be subject to approval
by the shareholders of the Company within twelve months before or after the date
the Plan is adopted.  Such shareholder approval shall be obtained in
the manner and degree required under the applicable state and federal tax and
securities laws.

     

    22.           Conditions Upon Issuance of Shares.  Shares
shall not be issued with respect to an option unless the exercise of such option
and the issuance and delivery of such shares pursuant thereto shall comply with
all applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.

     

    As a
condition to the exercise of an option, the Company may require the person
exercising such option to represent and warrant at the time of any such exercise
that the shares are being purchased only for investment and without any present
intention to sell or distribute such shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
applicable provisions of law.

    


    23.           Tax
Withholding.  The Company or any Subsidiary, as appropriate,
shall have the authority and the right to deduct or withhold, or require an
Employee to remit to the Company or one of its Subsidiaries, an amount
sufficient to satisfy U.S. federal, state, and local taxes and taxes imposed by
jurisdictions outside of the United States (including income tax, social
insurance contributions, payment on account and any other taxes that may be due)
required by law to be withheld with respect to any taxable event concerning an
Employee arising as a result of his or her participation in the Plan or to take
such other action as may be necessary in the opinion of the Company or a
Subsidiary, as appropriate, to satisfy withholding obligations for the payment
of taxes.  The Board (or a committee authorized by the Board) may in
its discretion and in satisfaction of the foregoing requirement, allow a
participant to elect to have the Company withhold shares otherwise issuable at
exercise (or allow the return of shares) having a fair market value equal to the
sums required to be withheld.  No shares shall be delivered hereunder
to any Employee until the Employee or such other person has made arrangements
acceptable to the Company for the satisfaction of these tax obligations with
respect to any taxable event concerning the Employee’s participation in the
Plan.

    


    24.           No Right to Employment or
Services.  Nothing in the Plan or any subscription agreement
shall interfere with or limit in any way the right of the Company or any
Subsidiary to terminate any Employee’s employment at any time, nor confer upon
any Employee any right to continue in the employ of the Company or any
Subsidiary.

     

    25.           Code Section
409A.  The Code Section 423(b) Plan Component is exempt from
the application of section 409A of the Code.  The Non-423(b) Plan
Component is intended to be exempt from section 409A of the Code under the
short-term deferral exception and any ambiguities in the Plan shall be construed
and interpreted in accordance with such intent.  In furtherance of
this interest, any provision in the Plan to the contrary notwithstanding, if the
Board determines that an option to purchase Common Stock granted under the Plan
may be subject to section 409A of the Code or that any provision in the Plan
would cause an option under the Plan to be subject to  section 409A of
the Code, the Board may amend the terms of the Plan and/or of an outstanding
option granted under the Plan, or take such other action the Board determines is
necessary or appropriate, in each case, without the participant's consent, to
exempt any outstanding option or future option that may be granted under the
Plan from or to allow any such options to comply with section 409A of the Code,
but only to the extent any such amendments or action by the Board would not
violate section 409A of the Code.  Anything in the foregoing to the
contrary notwithstanding, the Company shall have no liability to a participant
or any other party if the option to purchase Common Stock under the Plan that is
intended to be exempt from or compliant with section 409A of the Code is not so
exempt or compliant or for any action taken by the Board or a committee
appointed by the Board with respect thereto.  The Company makes no
representation that the option to purchase Common Stock under the Plan is
compliant with section 409A of the Code.


    
      
         

      

      
        - 8
-

        
          

        

      

      
         

      

    


    26.           Term of
Plan.  The Plan shall continue in effect until September 30,
2018 unless sooner terminated under paragraph 19.

     

    27.           Governing Law;
Severability.  The Plan and all determinations made and actions
taken thereunder shall be governed by the internal substantive laws, and not the
choice of law rules, of the State of California and construed accordingly, to
the extent not superseded by applicable federal law.  If any provision
of the Plan shall be held unlawful or otherwise invalid or unenforceable in
whole or in part, the unlawfulness, invalidity or unenforceability shall not
affect any other provision of the Plan or part thereof, each of which shall
remain in full force and effect.

     

     

    - 9
-