**EXHIBIT10.4**

 

**OPSWARE INC.**

 

**EMPLOYEE STOCK PURCHASE PLAN**

 

***(Amended and Restated as of February 25, 2003)***

 

The following constitute the provisionsof the Employee Stock Purchase Plan of Opsware Inc. 

 

1.    Purpose.    The purpose of the Plan is to provide employees of the Company and its Designated Affiliates with an opportunity to purchase Common Stock of the Company throughaccumulated 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 Code. In addition, this Plan authorizes the grant of options which do not qualifyunder Section 423 of the Code pursuant to rules, procedures or sub-plans adopted by the Administrator designed to achieve desired tax or other objectives in particular locations outside the United States. The provisions of the Plan shall beconstrued so as to extend and limit participation in a uniform and nondiscriminatory basis consistent with the requirements of Section 423 of the Code; provided, however, that an Eligible Employee participating in a sub-plan or under special rulespursuant to Section 15 not designed to qualify under Section 423 of the Code need not have the same rights and privileges as Eligible Employees participating in the Code Section 423 Plan. 

 

2.    Definitions.     

 

(a)    “Administrator”shall mean the Board or any Committee designated by the Board to administer the plan pursuant to Section 14. 

 

(b)    “Affiliate” means (i) any Subsidiary and (ii) any other entity in which Company has an equityinterest or which Company has a significant business relationship. 

 

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

 

(d)    “Change of Control” shall mean the occurrence of any of the following events: 

 

(i)    Any “person” (as suchterm is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more ofthe total voting power represented by the Company’s then outstanding voting securities; or 

 

(ii)    The consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets; or 

 

(iii)    The consummation of a merger orconsolidation of the Company, with any other corporation, other than a merger or consolidation which would result in the voting 

securities of the Company outstanding immediately prior thereto continuing to represent (either byremaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company, or such surviving entity or itsparent outstanding immediately after such merger or consolidation. 

 

(iv)    A change in the composition of the Board, as a result of which fewer than a majority of the Directors are Incumbent Directors. “Incumbent Directors” shall mean Directors who either (A)are Directors of the Company, as applicable, as of the date hereof, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of those Directors whose election or nomination was not in connectionwith any transaction described in subsections (i), (ii) or (iii) or in connection with an actual or threatened proxy contest relating to the election of directors of the Company. 

 

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

 

(f)    “Committee” means a committee of the Board appointed by the Board in accordance with Section 14 hereof. 

 

(g)    “Common Stock” shall mean the common stock of the Company.

 

(h)    “Company” shall mean Opsware Inc., a Delaware corporation. 

 

(i)    “Compensation” shall mean all base straight time gross earnings, commissions overtime, shiftpremium, and incentive compensation, but exclusive of payments for bonuses and other compensation. The Committee, in its discretion, may establish a different definition of Compensation prior to an Enrollment Date for all options to be granted onsuch Enrollment Date. 

 

(j)    “Designated Affiliate” shall mean any Affiliate selected by the Administrator as eligible to participate in the Plan. 

 

(k)    “Eligible Employee” shall mean any individual who is a common lawemployee of the Company or any Designated Affiliate and whose customary employment with the Company or Designated Affiliate is at least twenty (20) hours per week and more than five (5) months in any calendar year. For purposes of the Plan, theemployment relationship shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by the Company. Where the period of leave exceeds 90 days and the individual’s right to reemployment is notguaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated on the 91st day of such leave. 

 

(l)    “Exercise Date” shall mean the last Trading Day in February and August of each year. The firstExercise Date under the Plan shall be the last Trading Day in August 2001. 

 

(m)    “Fair Market Value” shall mean, as of any date, the value of Common Stock determined as follows: 

 

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(i)    If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market,its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the date of determination, as reported in *The Wall Street Journal* or such othersource as the Board deems reliable (including, without limitation, as quoted on the Nasdaq National Market website, www.nasdaq.com); 

 

(ii)    If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are notreported, its Fair Market Value shall be the mean of the closing bid and asked prices for the Common Stock on the date of determination, as reported in *The Wall Street Journal* or such other source as the Board deems reliable; 

 

(iii)    In the absence of an establishedmarket for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Board; or 

 

(iv)    For purposes of the Offering Date of the first Offering Period under the Plan, the Fair Market Value shall bethe initial price to the public as set forth in the final prospectus included within the registration statement in Form S-1 filed with the Securities and Exchange Commission for the initial public offering of the Company’s Common Stock (the“Registration Statement”). 

 

(n)    “Offering Date” shall mean the first Trading Day of each Offering Period. 

 

(o)    “Offering Periods” shall mean the periods of approximately twenty-four (24) months duringwhich an option granted pursuant to the Plan may be exercised, commencing on the first Trading Day on or after March 1 and September 1 of each year and terminating on the first Trading Day on or after the February 28 and August 31 Offering Periodcommencement date approximately twenty-four months later; provided, however, that the first Offering Period under the Plan shall commence with the first Trading Day on or after the date on which the Securities and Exchange Commission declares theCompany’s registration statement on Form S-1 effective and ending on the first Trading Day on or after the earlier of (i) February 28, 2003 or (ii) twenty-seven (27) months from the beginning of the first Offering Period. The duration andtiming of Offering Periods may be changed pursuant to Section 4 of this Plan. 

 

(p)    “Plan” shall mean this Employee Stock Purchase Plan. 

 

(q)    “Purchase Period” shall mean the approximately six (6) month period commencing on one ExerciseDate and ending with the next Exercise Date, except that the first Purchase Period of any Offering Period shall commence on the Offering Date and end with the next Exercise Date. 

 

(r)    “Purchase Price” shall mean 85% of the Fair Market Value of ashare of Common Stock on the Offering Date or on the Exercise Date, whichever is lower; provided however, that the Purchase Price may be adjusted by the Administrator pursuant to Section 20. 

 

(s)    “Subsidiary” shallmean a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code. 

 

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(t)     “Trading Day” shall mean a day on which national stock exchanges and the Nasdaq System are open for trading. 

 

3.    Eligibility.

 

(a)    First Offering Period.    Any individual who is anEligible Employee immediately prior to the first Offering Period shall be automatically enrolled in the first Offering Period. 

 

(b)    Subsequent Offering Periods.    Any Eligible Employee on a given Offering Date shallbe eligible to participate in the Plan. 

 

(c)    Limitations.    Any provisions of the Plan to the contrary notwithstanding, no Eligible Employee shall be granted an option under the Plan (i) to the extent that, immediatelyafter the grant, such Eligible Employee (or any other person whose stock would be attributed to such Eligible Employee pursuant to Section 424(d) of the Code) would own capital stock of the Company and/or hold outstanding options to purchase suchstock possessing five percent (5%) or more of the total combined voting power or value of all classes of the capital stock of the Company or of any Subsidiary, or (ii) to the extent that his or her rights to purchase stock under all employee stockpurchase plans of the Company and its subsidiaries accrues at a rate which exceeds $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 isoutstanding at any time. 

 

4.    Offering Periods.    The Plan shall be implemented by consecutive, overlapping Offering Periods with a new Offering Period commencing on the first Trading Day on or after March 1and September 1 each year, or on such other date as the Board shall determine, and continuing thereafter until terminated in accordance with Section 21 hereof; provided, however, that the first Offering Period under the Plan shall commence with thefirst Trading Day on or after the date upon which the Company’s registration statement on Form S-1 is declared effective by the Securities and Exchange Commission and ending on the first Trading Day on or after February 28, 2003. The Boardshall have the power to change the duration of Offering Periods (including the commencement dates thereof) with respect to future offerings without shareholder approval if such change is announced prior to the scheduled beginning of the firstOffering Period to be affected thereafter. 

 

5.    Participation.

 

(a)    First Offering Period.    An Eligible Employee shall be entitled to participate in the first Offering Period only if such individual submits a subscription agreement authorizingpayroll deductions in the form of Exhibit A to this Plan (i) no earlier than the effective date of the Form S-8 registration statement with respect to the issuance of Common Stock under this Plan and (ii) no later than a date determined bythe Administrator in its discretion (the “Enrollment Window”). An Eligible Employee’s failure to submit the subscription agreement during the Enrollment Window shall result in the automatic termination of such individual’sparticipation in the Offering Period. 

 

(b)    Subsequent Offering Periods.    An Eligible Employee may become a participant in the Plan by completing a subscription agreement authorizing payroll deductions in the

 

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form of Exhibit A tothis Plan and filing it with the Company’s Benefits Department prior to the applicable Offering Date. 

 

6.    Payroll Deductions. 

 

(a)    At the time a participant files his or her subscription agreement, he or she shallelect to have payroll deductions made on each pay day during the Offering Period in an amount not exceeding 15% of the Compensation which he or she receives on each pay day during the Offering Period. A participant’s subscription agreementshall remain in effect for successive Offering Periods unless terminated as provided in Section 10 hereof. 

 

(b)    Payroll deductions for a participant shall commence on the first payday following the Offering Date and shallend on the last payday in the Offering Period to which such authorization is applicable, unless sooner terminated by the participant as provided in Section 10 hereof; provided, however, that for the first Offering Period, payroll deductions shallcommence on the first payday on or following the end of the Enrollment Window. 

 

(c)    All payroll deductions made for a participant shall be credited to his or her account under the Plan and shall be withheld in whole percentages only. A participant may notmake any additional payments into such account. 

 

(d)    A participant may discontinue his or her participation in the Plan as provided in Section 10 hereof, or may increase or decrease the rate of his or her payroll deductions during the Offering Period bycompleting or filing with the Company a new subscription agreement authorizing a change in payroll deduction rate. The Administrator may, in its discretion, limit the nature and/or number of participation rate changes during any Offering Period. TheAdministrator, in its sole discretion, shall determine when the change in such participation rate is effective. 

 

(e)    Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section3(c) hereof, a participant’s payroll deductions may be decreased to zero percent (0%) at any time during a Purchase Period. 

 

(f)    At the time the option is exercised, in whole or in part, or at the time some or all of the Company’sCommon Stock issued under the Plan is disposed of, the participant must make adequate provision for the Company’s federal, state, or other tax withholding obligations, if any, which arise upon the exercise of the option or the disposition ofthe Common Stock. At any time, the Company may, but shall not be obligated to, withhold from the participant’s compensation the amount necessary for the Company to meet applicable withholding obligations, including any withholding required tomake available to the Company any tax deductions or benefits attributable to sale or early disposition of Common Stock by the Eligible Employee. 

 

7.    Grant of Option.    On the Offering Date of each Offering Period, each EligibleEmployee participating in such Offering Period shall be granted an option to purchase on each Exercise Date during such Offering Period (at the applicable Purchase Price) up to a number of shares of the Company’s Common Stock determined bydividing such Eligible Employee’s payroll deductions accumulated prior to such Exercise Date and retained in the Participant’s account as of 

 

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the Exercise Date by theapplicable Purchase Price; provided that in no event shall an Eligible Employee be permitted to purchase during each Purchase Period more than 5,000 shares of the Company’s Common Stock (subject to any adjustment pursuant to Section 20), andprovided further that such purchase shall be subject to the limitations set forth in Sections 3(c) and 13 hereof. The Eligible Employee may accept the grant of such option by turning in a completed Subscription Agreement (attached hereto asExhibit A) to the Company on or prior to an Offering Date, or with respect to the first Offering Period, prior to the last day of the Enrollment Window. The Administrator may, for future Offering Periods, increase or decrease, in its absolutediscretion, the maximum number of shares of the Company’s Common Stock an Eligible Employee may purchase during each Purchase Period of such Offering Period. Exercise of the option shall occur as provided in Section 8 hereof, unless theparticipant has withdrawn pursuant to Section 10 hereof. The option shall expire on the last day of the Offering Period. 

 

8.    Exercise of Option. 

 

(a)    Unless a participant withdraws from the Plan as provided in Section 10 hereof, hisor her option for the purchase of shares shall be exercised automatically on the Exercise Date, and the maximum number of full shares subject to option shall be purchased for such participant at the applicable Purchase Price with the accumulatedpayroll deductions in his or her account. No fractional shares shall be purchased; any payroll deductions accumulated in a participant’s account which are not sufficient to purchase a full share shall be retained in the participant’saccount for the subsequent Purchase Period or Offering Period, subject to earlier withdrawal by the participant as provided in Section 10 hereof. Any other funds left over in a participant’s account after the Exercise Date shall be returned tothe participant. During a participant’s lifetime, a participant’s option to purchase shares hereunder is exercisable only by him or her. 

 

(b)    If the Administrator determines that, on a given Exercise Date, the number of shares with respect to whichoptions are to be exercised may exceed (i) the number of shares of Common Stock that were available for sale under the Plan on the Offering Date of the applicable Offering Period, or (ii) the number of shares available for sale under the Plan onsuch Exercise Date, the Administrator may in its sole discretion (x) provide that the Company shall make a pro rata allocation of the shares of Common Stock available for purchase on such Offering Date or Exercise Date, as applicable, in as uniforma manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all participants exercising options to purchase Common Stock on such Exercise Date, and continue all Offering Periods then in effect, or (y)provide that the Company shall make a pro rata allocation of the shares available for purchase on such Offering Date or Exercise Date, as applicable, in as uniform a manner as shall be practicable and as it shall determine in its sole discretion tobe equitable among all participants exercising options to purchase Common Stock on such Exercise Date, and terminate any or all Offering Periods then in effect pursuant to Section 21 hereof. The Company may make pro rata allocation of the sharesavailable on the Offering Date of any applicable Offering Period pursuant to the preceding sentence, notwithstanding any authorization of additional shares for issuance under the Plan by the Company’s shareholders subsequent to such OfferingDate. 

 

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9.    Delivery.    As soon as reasonably practicable after each Exercise Date on which a purchase of shares occurs, the Company shall arrange the delivery to each participant the sharespurchased upon exercise of his or her option in a form determined by the Administrator. 

 

10.     Withdrawal.

 

(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 atany time by giving written notice to the Company in the form of Exhibit B to this Plan. All of the participant’s payroll deductions credited to his or her account shall be paid to such participant as soon as administratively practicableafter receipt of notice of withdrawal and such participant’s option for the Offering Period shall be automatically terminated, and no further payroll deductions for the purchase of shares shall be made for such Offering Period. If a participantwithdraws from an Offering Period, payroll deductions shall not resume at the beginning of the succeeding Offering Period unless the participant delivers to the Company a new subscription agreement. 

 

(b)    A participant’s withdrawalfrom an Offering Period shall 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 OfferingPeriod from which the participant withdraws. 

 

11.    Termination of Employment.    In the event a participant ceases to be an Eligible Employee of the Company or any Designated Affiliate, as applicable, his or her option shallexpire on the date of such termination and any payroll deductions credited to such participant’s account during the Offering Period but not yet used to purchase shares under the Plan shall be returned to such participant or, in the case of hisor her death, to the person or persons entitled thereto under Section 15 hereof, and such participant’s option shall be automatically terminated. 

 

12.    Interest.    No interest shall accrue on the payroll deductions of a participant inthe Plan. 

 

13.    Stock. 

 

(a)    Subject to adjustment upon changes in capitalization of the Company as provided in Section 20 hereof, the maximum number of shares of the Company’s Common Stock which shall be made available for saleunder the Plan shall be 3,017,877 shares plus an annual increase to be added on the first day of the Company’s fiscal year, equal to the lesser of (i) 5,000,000 shares, (ii) 2% of the outstanding shares on such date or (iii) an amountdetermined by the Administrator. 

 

(b)    Until the shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), a participant shall only have the rights of anunsecured creditor with respect to such shares, and no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to such shares. 

 

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

 

14.    Administration.    The Administrator shall administer the Plan and shall have full and exclusive discretionary authority to construe, interpret and apply the terms of the Plan, todetermine eligibility and to adjudicate all disputed claims filed under the Plan, to establish deadlines enrollment in the Plan, to adopt sub-plans applicable to specified Affiliates or locations, and to designate which Affiliates will participatein the Plan. Every finding, decision and determination made by the Administrator shall, to the full extent permitted by law, be final and binding upon all parties. 

 

15.    Administrator Rules for Foreign Jurisdictions.

 

(a)    The Administrator may adopt rulesor procedures relating to the operation and administration of the Plan to accommodate the specific requirements of local laws and procedures. Without limiting the generality of the foregoing, the Administrator is specifically authorized to adoptrules and procedures regarding handling of payroll deductions, payment of interest, conversion of local currently, payroll tax, withholding procedures and handling of stock certificates which vary with local requirements. 

 

(b)    The Administrator may also adoptrules, procedures or sub-plan applicable to particular Affiliates or locations, which sub-plans may be designed to be outside the scope of Code Section 423. The rules of such sub-plans may take precedence over other provides of this Plan, with theexception of Section 13(a) but unless otherwise superceded by the terms of such sub-plan, the provisions of this Plan shall govern the operation of such sub-plan. 

 

16.     Beneficiary.    In the event of the death of aparticipant prior to the purchase of shares under the Plan, the Company shall deliver any cash received from the participant for the purchase of shares prior to such participant’s death to the executor or administrator of the estate of theparticipant. 

 

17.    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 Planmay 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 Section 16 hereof) by the participant. Any such attempt at assignment, transfer, pledge or otherdisposition 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 Section 10 hereof. 

 

18.    Use of Funds.    All payroll deductions received orheld 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. Until shares are issued, participants shall only have the rights of an unsecuredcreditor. 

 

19.    Reports.    Individual accounts shall be maintained for each participant in the Plan. Statements of account shall be given to participating Eligible Employees at least annually,which statements shall set forth the amounts of payroll deductions, the Purchase Price, the number of shares purchased and the remaining cash balance, if any. 

 

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20.    Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, Merger or Change of Control. 

 

(a)    Changes in Capitalization.    Subject to any required action by the shareholders ofthe Company, the maximum number of shares of the Company’s Common Stock which shall be made available for sale under the Plan, the maximum number of shares each participant may purchase each Purchase Period (pursuant to Section 7), the numberof shares that may be added annually to the shares reserved under the Plan (pursuant to Section 13(a)(i)), as well as the price per share and the number of shares of Common Stock covered by each option under the Plan which has not yet been exercisedshall 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 changein 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 ofconsideration.” Such adjustment shall be made by the Administrator, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, orsecurities 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. 

 

(b)    Dissolution orLiquidation.    In the event of the proposed dissolution or liquidation of the Company, the Offering Period then in progress shall be shortened by setting a new Exercise Date (the “New Exercise Date”), and shallterminate immediately prior to the consummation of such proposed dissolution or liquidation, unless provided otherwise by the Administrator. The New Exercise Date shall be before the date of the Company’s proposed dissolution or liquidation.The Administrator shall notify each participant in writing, at a time determined by the Administrator (in its discretion and on a uniform basis) prior to the New Exercise Date, that the Exercise Date for the participant’s option has beenchanged 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 Section 10 hereof.

 

(c)    Merger or Changeof Control.    In the event of a merger or Change of Control, each outstanding option shall be assumed or an equivalent option substituted by the successor corporation or a Parent or Subsidiary of the successor corporation.In the event that the successor corporation refuses to assume or substitute for the option, any Purchase Periods then in progress shall be shortened by setting a New Exercise Date and any Offering Periods then in progress shall end on the NewExercise Date. The New Exercise Date shall be before the date of the Company’s proposed merger or Change of Control. The Administrator shall notify each participant in writing, at a time determined by the Administrator (in its discretion and ona uniform basis) 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 Section 10 hereof. 

 

21.    Amendment or Termination. 

 

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(a)    The Administrator may at any time and for any reason terminate or amend the Plan. Except as otherwise provided in the Plan, no such termination can affect options previously granted, provided that anOffering Period may be terminated by the Administrator on any Exercise Date if the Administrator determines that the termination of the Offering Period or the Plan is in the best interests of the Company and its shareholders. Except as provided inSection 20 and this Section 21 hereof, no amendment may make any change in any option theretofore granted which adversely affects the rights of any participant. To the extent necessary to comply with Section 423 of the Code (or any successor rule orprovision or any other applicable law, regulation or stock exchange rule), the Company shall obtain shareholder approval in such a manner and to such a degree as required. 

 

(b)    Without shareholder consent and without regard to whether any participant rightsmay be considered to have been “adversely affected,” the Administrator shall be entitled to change the Offering Periods, limit the frequency and/or number of changes in the amount withheld during an Offering Period, establish the exchangeratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by a participant in order to adjust for delays or mistakes in the Company’s processing of properlycompleted withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each participant properly correspond with amountswithheld from the participant’s Compensation, and establish such other limitations or procedures as the Administrator determines in its sole discretion advisable which are consistent with the Plan. 

 

(c)    In the event the Administratordetermines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences, the Board may, in its discretion and, to the extent necessary or desirable, modify or amend the Plan to reduce or eliminate suchaccounting consequence including, but not limited to: 

 

(i)    increasing the Purchase Price for any Offering Period including an Offering Period underway at the time of the change in Purchase Price; 

 

(ii)    shortening any Offering Period so that Offering Period ends on a new ExerciseDate, including an Offering Period underway at the time of the Board action; and 

 

(iii)    allocating shares. 

 

Such modifications or amendments shall not require stockholder approval or the consent of any Plan participants. 

 

22.    Notices.    All notices or other communications by aparticipant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form and manner specified by the Company at the location, or by the person, designated by the Company for the receiptthereof. 

 

23.    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 sharespursuant 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 

 

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amended, the rules and regulations promulgated thereunder, and the requirements of any stock exchange uponwhich 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 thetime 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 theaforementioned applicable provisions of law. 

 

24.    Term of Plan.    The Plan shall become effective upon the earlier to occur of its adoption by the Board of Directors or its approval by the shareholders of the Company. It shallcontinue in effect until terminated under Section 21 hereof. 

 

25.     Automatic Transfer to Low Price Offering Period.    To the extent permitted by any applicable laws, regulations, or stock exchange rules if the Fair Market Value of theCommon Stock on any Exercise Date in an Offering Period is lower than the Fair Market Value of the Common Stock on the Offering Date of such Offering Period or if the Fair Market Value of the Common Stock on the Offering Date of the immediatelyfollowing Offering Period is lower than the Fair Market Value of the Common Stock on the Offering Date of the current Offering Period, then all participants in the current Offering Period shall be automatically withdrawn from such Offering Periodimmediately after the exercise of their option on the Exercise Date and automatically re-enrolled in the immediately following Offering Period. In the event that the Fair Market Value of the Common Stock on the Offering Date of the March 1, 2002Offering Period is lower than the Fair Market Value of the Common Stock on the Offering Date of the September 4, 2001 Offering Period, then all participants in the September 4, 2001 Offering Period shall be automatically enrolled in the March 1,2002 Offering Period at a contribution rate of 0% of his or her Compensation. 

 

 

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**EXHIBITA**

 

**OPSWARE INC.**

 

**EMPLOYEE STOCK PURCHASE PLAN**

 

**SUBSCRIPTION AGREEMENT**

 

             OriginalApplication
 
Offering Date:                

             Changein Payroll Deduction Rate
  
 
1.                          hereby electsto participate in the Opsware Inc. Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) and subscribes to purchase shares of the Company’s Common Stock in accordance with this Subscription Agreement and the Employee StockPurchase Plan. 
 
2. I hereby authorize payroll deductions from each paycheck in the amount of             % of myCompensation on each payday (from 0 to 10%) during the Offering Period in accordance with the Employee Stock Purchase Plan. (Please note that no fractional percentages are permitted.) 
 
3. I understand that said payroll deductions shall be accumulated for the purchase of shares of Common Stock at the applicable Purchase Price determined in accordancewith the Employee Stock Purchase Plan. I understand that if I do not withdraw from an Offering Period, any accumulated payroll deductions will be used to automatically exercise my option. 
 
4. I have received a copy of the complete Employee Stock Purchase Plan. I understand that my participation in the Employee Stock Purchase Plan is in all respectssubject to the terms of the Plan. I understand that my ability to exercise the option under this Subscription Agreement is subject to shareholder approval of the Employee Stock Purchase Plan. 
 
5. Shares purchased for me under the Employee Stock Purchase Plan should be issued in the name(s) of (Eligible Employee or Eligible Employee and Spouse only).
 
6. I understand that if I dispose of any shares received by me pursuant to the Plan within 2 years after the Offering Date (the first day of the Offering Period duringwhich I purchased such shares) or one year after the Exercise Date, I will be treated for federal income tax purposes as having received ordinary income at the time of such disposition in an amount equal to the excess of the fair market value of theshares at the time such shares were purchased by me over the price which I paid for the shares. I hereby agree to notify the Company in writing within 30 days after the date of any disposition of my shares and I will make adequate provision forFederal, state or other tax withholding obligations, if any, which arise upon the disposition of the Common Stock. The Company may, but will not be obligated to, withhold 
 

 

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from my compensation the amount necessary to meet any applicable withholding obligationincluding any withholding necessary to make available to the Company any tax deductions or benefits attributable to sale or early disposition of Common Stock by me. If I dispose of such shares at any time after the expiration of the 2-year and1-year holding periods, I understand that I will be treated for federal income tax purposes as having received income only at the time of such disposition, and that such income will be taxed as ordinary income only to the extent of an amount equalto the lesser of (1) the excess of the fair market value of the shares at the time of such disposition over the purchase price which I paid for the shares, or (2) 15% of the fair market value of the shares on the first day of the Offering Period.The remainder of the gain, if any, recognized on such disposition will be taxed as capital gain. 

 
7. I hereby agree to be bound by the terms of the Employee Stock Purchase Plan. The effectiveness of this Subscription Agreement is dependent upon my eligibility toparticipate in the Employee Stock Purchase Plan. 
 

Employe Number
  
__________________________________

Employee Name
  
__________________________________

Employee’s Social

Security Number:
  
__________________________________

 

I UNDERSTAND THAT THISSUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME. 

 

Dated:                                                                                             
 
                                                                                                        
  
Signature of Employee

 

 

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**EXHIBITB**

 

**OPSWARE INC.**

 

**EMPLOYEE STOCK PURCHASE PLAN**

 

**NOTICE OF WITHDRAWAL**

 

The undersigned participant in the Offering Period of theOpsware Inc. Employee Stock Purchase Plan which began on             ,              (the “Offering Date”)hereby notifies the Company that he or she hereby withdraws from the Offering Period. He or she hereby directs the Company to pay to the undersigned as promptly as practicable all the payroll deductions credited to his or her account with respect tosuch Offering Period. The undersigned understands and agrees that his or her option for such Offering Period will be automatically terminated. The undersigned understands further that no further payroll deductions will be made for the purchase ofshares in the current Offering Period and the undersigned shall be eligible to participate in succeeding Offering Periods only by delivering to the Company a new Subscription Agreement. 

 

Name (Pleaseprint):                                                                                     
     
EmployeeNumber:                         
     
Signature:                                                                                                       
     
Date:                             
     
 

 

 

 

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