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EXHIBIT 10.4




PLUMTREE SOFTWARE, INC.




2002 EMPLOYEE STOCK PURCHASE PLAN




     The following constitutes the provisions of the 2002 Employee Stock
Purchase Plan of Plumtree Software, Inc.



     1. Purpose. The purpose of the Plan is to provide Employees with an
opportunity to purchase Common Stock 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 Code. The provisions of the
Plan, accordingly, shall be construed so as to extend and limit Plan
participation in a manner that is consistent with the requirements of that
section of the Code.



     2. Definitions.



          (a) “Administrator” means the Board or any committee thereof designated by
the Board in accordance with Section 14.



          (b) “Board” means the Board of Directors of the Company.



          (c) “Change of Control” means the occurrence of any of the following
events:



               (i) Any “person” (as such term 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 of the 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 or consolidation 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 by remaining 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 its parent 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” means Directors who either (A) are Directors as of the effective
date of the Plan (pursuant to Section 23), 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 connection with 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.



          (d) “Code” means the Internal Revenue Code of 1986, as amended. Any
reference to a section of the Code herein shall be a reference to any successor
or amended section of the Code.



          (e) “Common Stock” means the common stock of the Company.



          (f) “Company” means Plumtree Software, Inc., a Delaware corporation.



 









 





          (g) “Compensation” means an Employee’s base straight time gross earnings
and bonuses, but exclusive of payments for commissions, overtime, shift premium
and other compensation.



          (h) “Designated Subsidiary” means any Subsidiary that has been designated
by the Administrator from time to time in its sole discretion as eligible to
participate in the Plan.



          (i) “Director” means a member of the Board.



          (j) “Employee” means any individual who is a common law employee of an
Employer and is customarily employed for at least twenty (20) hours per week
and more than five (5) months in any calendar year by the Employer. For
purposes of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the Employer. Where the period of leave exceeds ninety
(90) days and the individual’s right to reemployment is not guaranteed either
by statute or by contract, the employment relationship shall be deemed to have
terminated on the 91st day of such leave.



          (k) “Employer” means any one or all of the Company and its Designated
Subsidiaries.



          (l) “Enrollment Date” means the first Trading Day of each Offering Period.



          (m) “Exchange Act” means the Securities Exchange Act of 1934, as amended,
including the rules and regulations promulgated thereunder.



          (n) “Exercise Date” means the first Trading Day on or after February 1 and
August 1 of each year. The first Exercise Date under the Plan shall be
February 3, 2003.



          (o) “Fair Market Value” means, as of any date, the value of Common Stock
determined as follows:



               (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 the Common 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 other source as
the Administrator deems reliable, or;



               (ii) If the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, 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 Administrator deems reliable, or;



               (iii) In the absence of an established market for the Common Stock, its
Fair Market Value shall be determined in good faith by the Administrator, or;



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



          (p) “Offering Periods” means the periods of approximately twenty-four (24)
months during which an option granted pursuant to the Plan may be exercised,
commencing on the first Trading Day on or after February 1 and August 1 of each
year and terminating on the first Trading Day on or after the February 1 and
August 1 Offering Period commencement 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 the Company’s Registration
Statement effective and ending on the first Trading Day on or after the earlier
of (i) August 1, 2004 or (ii) twenty-seven (27) months from the beginning of
the first Offering Period; and



 









 




provided, further, that the second Offering Period under the Plan shall
commence on February 3, 2003. The duration and timing of Offering Periods may
be changed pursuant to Section 4 of this Plan.




          (q) “Parent” means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.



          (r) “Plan” means this 2002 Employee Stock Purchase Plan.



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



          (t) “Purchase Price” means an amount equal to eighty-five percent (85%) of
the Fair Market Value of a share of Common Stock on the Enrollment 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.



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



          (v) “Trading Day” means a day on which the U.S. national stock exchanges
and the Nasdaq System are open for trading.



     3. Eligibility.



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



          (b) Subsequent Offering Periods. Any individual who is an Employee as of
the Enrollment Date of any future Offering Period shall be eligible to
participate in such Offering Period, subject to the requirements of Section 5.



          (c) Limitations. Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under the Plan (i) to
the extent that, 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 capital stock of the Company or any Parent or
Subsidiary of the Company and/or hold outstanding options to purchase such
stock 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 Parent or
Subsidiary of the Company, or (ii) to the extent that his or her rights to
purchase stock under all employee stock purchase plans (as defined in Section
423 of the Code) of the Company or any Parent or Subsidiary of the Company
accrues at a rate which exceeds twenty-five thousand dollars ($25,000) worth of
stock (determined at the Fair Market Value of the stock at the time such option
is granted) for each calendar year in which such option is outstanding 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 February 1 and August 1 of each year, or on such other
date as the Administrator shall determine, and continuing thereafter until
terminated in accordance with Section 20; 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 the
Company’s Registration Statement effective and ending on the first Trading Day
on or after the earlier of (i) August 1, 2004 or (ii) twenty-seven (27) months
from the beginning of the first Offering Period; and provided, further, that
the second Offering Period under the Plan shall commence on February 3, 2003.
The Administrator shall have the power to change the duration of Offering
Periods (including the commencement dates thereof) with respect to future
offerings without stockholder approval if such change is announced prior to the
scheduled beginning of the first Offering Period to be affected thereafter.


 









 





     5. Participation.


          (a) First Offering Period. An Employee who has become a participant in
the first Offering Period under the Plan pursuant to Section 3(a) shall be
entitled to continue his or her participation in such Offering Period only if
he or she submits to the Company’s payroll office (or its designee) a properly
completed subscription agreement authorizing payroll deductions in the form
provided by the Administrator for such purpose (i) no earlier than the
effective date of the filing of the Company’s Registration Statement on Form
S-8 with respect to the shares of Common Stock issuable under the Plan (the
“Effective Date”) and (ii) no later than five (5) business days from the
Effective Date (the “Enrollment Window”). A participant’s failure to submit
the subscription agreement during the Enrollment Window pursuant to this
Section 5(a) shall result in the automatic termination of his or her
participation in the first Offering Period under the Plan.



          (b) Subsequent Offering Periods. An Employee who is eligible to
participate in the Plan pursuant to Section 3(b) may become a participant by
(i) submitting to the Company’s payroll office (or its designee), on or before
a date prescribed by the Administrator prior to an applicable Enrollment Date,
a properly completed subscription agreement authorizing payroll deductions in
the form provided by the Administrator for such purpose, or (ii) following an
electronic or other enrollment procedure prescribed by the Administrator.



     6. Payroll Deductions.



          (a) At the time a participant enrolls in the Plan pursuant to Section 5,
he or she shall elect to have payroll deductions made on each payday during the
Offering Period in an amount not exceeding 15% of the Compensation which he or
she receives on each such payday; provided, that should a payday occur on an
Exercise Date, a participant shall have the payroll deductions made on such
payday applied to his or her account under the new Offering Period or Purchase
Period, as the case may be.



          (b) Payroll deductions authorized by a participant shall commence on the
first payday following the Enrollment Date and shall end 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; provided, however,
that for the first Offering Period under the Plan, payroll deductions shall
commence 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 not make any additional payments into such account.



          (d) A participant may discontinue his or her participation in the Plan as
provided in Section 10, or may change the rate of his or her payroll deductions
during the Offering Period by (i) properly completing and submitting to the
Company’s payroll office (or its designee), on or before a date prescribed by
the Administrator prior to an applicable Exercise Date, a new subscription
agreement authorizing the change in payroll deduction rate in the form provided
by the Administrator for such purpose, or (ii) following an electronic or other
procedure prescribed by the Administrator. If a participant has not followed
such procedures to change the rate of payroll deductions, the rate of his or
her payroll deductions shall continue at the originally elected rate throughout
the Offering Period and future Offering Periods (unless terminated as provided
in Section 10). The Administrator may, in its sole discretion, limit the nature
and/or number of payroll deduction rate changes that may be made by
participants during any Offering Period. Any change in payroll deduction rate
made pursuant to this Section 6(d) shall be effective as of the first full
payroll period following five (5) business days after the date on which the
change is made by the participant (unless the Administrator, in its sole
discretion, elects to process a given change in payroll deduction rate more
quickly).



          (e) Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 3(c), a participant’s payroll
deductions may be decreased to zero percent (0%) at any time during a Purchase
Period. Payroll deductions shall recommence at the rate originally elected by
the participant effective as of the beginning of the first Purchase Period
which is scheduled to end in the following calendar year, unless terminated by
the participant as provided in Section 10.



          (f) At the time the option is exercised, in whole or in part, or at the
time some or all of the Company’s Common 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 of the 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 to make available to the Company any tax deductions or
benefits attributable to the sale or early disposition of Common Stock by the
Employee.




     7. Grant of Option. On the Enrollment Date of each Offering Period, each
Employee 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 Common Stock determined by dividing
such participant’s payroll deductions accumulated prior to such Exercise Date
and retained in the participant’s account as of the Exercise Date by the
applicable Purchase Price; provided that in no event shall a participant be
permitted to purchase during each Purchase Period more than 10,000 shares of
Common Stock (subject to any adjustment pursuant to Section 19), and provided
further that such purchase shall be subject to the limitations set forth in
Sections 3(c) and 13. The Employee may accept the grant of such option (i)
with respect to the first Offering Period under the Plan, by submitting a
properly completed subscription agreement in accordance with the requirements
of Section 5(a) on or before the last day of the Enrollment Window, and (ii)
with respect to any future Offering Period under the Plan, by electing to
participate in the Plan in accordance with the requirements of Section 5(b).
The Administrator may, for future Offering Periods, increase or decrease, in
its absolute discretion, the maximum number of shares of Common Stock that a
participant may purchase during each Purchase Period of such Offering Period.
Exercise of the option shall occur as provided in Section 8, unless the
participant has withdrawn pursuant to Section 10. 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, his or her option for the purchase of shares of Common Stock 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 accumulated payroll deductions in his or her
account. No fractional shares of Common Stock 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’s account for the
subsequent Purchase Period or Offering Period, subject to earlier withdrawal by
the participant as provided in Section 10. Any other monies left over in a
participant’s account after the Exercise Date shall be returned to the
participant. During a participant’s lifetime, a participant’s option to
purchase shares hereunder is exercisable only by him or her.



          (b) Notwithstanding any contrary Plan provision, if the Administrator
determines that, on a given Exercise Date, the number of shares of Common Stock
with respect to which options are to be exercised may exceed (i) the number of
shares of Common Stock that were available for sale under the Plan on the
Enrollment Date of the applicable Offering Period, or (ii) the number of shares
of Common Stock available for sale under the Plan on such 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 Enrollment Date or Exercise Date, as applicable, in as uniform a 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 of
Common Stock available for purchase on such Enrollment Date or Exercise Date,
as applicable, in as uniform a 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
terminate any or all Offering Periods then in effect pursuant to Section 20.
The Company may make pro rata allocation of the shares of Common Stock
available on the Enrollment Date of any applicable Offering Period pursuant to
the preceding sentence, notwithstanding any authorization of additional shares
of Common Stock for issuance under the Plan by the Company’s shareholders
subsequent to such Enrollment Date.



     9. Delivery. As soon as administratively practicable after each Exercise
Date on which a purchase of shares of Common Stock occurs, the Company shall
arrange the delivery to each participant, as appropriate, the shares purchased
upon exercise of his or her option in a form determined by the Administrator
(in its sole discretion). No participant shall have any voting, dividend, or
other shareholder rights with respect to shares of Common Stock subject to any
option granted under the Plan until such shares have been purchased and
delivered to the participant as provided in this Section 9.




 









 




     10. Withdrawal.


          (a) Under procedures established by the Administrator, 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 (i) submitting to the Company’s payroll office (or its designee) a
written notice of withdrawal in the form prescribed by the Administrator for
such purpose, or (ii) following an electronic or other withdrawal procedure
prescribed by the Administrator. All of the participant’s payroll deductions
credited to his or her account shall be paid to such participant as promptly as
practicable after the effective date of his or her 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 participant withdraws from an Offering Period,
payroll deductions shall not resume at the beginning of the succeeding Offering
Period unless the participant re-enrolls in the Plan in accordance with the
provisions of Section 5.



          (b) A participant’s withdrawal from 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 Offering Period from which the
participant withdraws.



     11. Termination of Employment. In the event a participant ceases to be an
Employee of an Employer, his or her option shall remain exercisable for a
period of ninety (90) days from the date of such Employee’s termination. Upon
the expiration of such ninety (90) day period or a date prior to the expiration
of such ninety (90) day period if requested by the participant, any payroll
deductions credited to such participant’s account during the Offering Period
but not yet used to purchase shares of Common Stock under the Plan shall be
returned to such participant or, in the case of his or her death, to the person
or persons entitled thereto under Section 15, and such participant’s option
shall be automatically terminated.



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



     13. Stock.



          (a) Subject to adjustment upon changes in capitalization of the Company as
provided in Section 19, the maximum number of shares of Common Stock which
shall be made available for sale under the Plan shall be 2,000,000 shares plus
an annual increase to be added on the first day of the Company’s fiscal year
beginning in fiscal year 2003, equal to the lesser of (i) 1,500,000 shares,
(ii) 2% of the outstanding shares on such date or (iii) an amount determined by
the Board.



          (b) Shares of Common Stock 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 Plan shall be administered by the Board or a
committee of members of the Board who shall be appointed from time to time by,
and shall serve at the pleasure of, the Board. The Administrator shall have
full and exclusive discretionary authority to construe, interpret and apply the
terms of the Plan, to determine eligibility and to adjudicate all disputed
claims filed under the Plan. The Administrator, in its sole discretion and on
such terms and conditions as it may provide, may delegate to one or more
individuals all or any part of its authority and powers under the Plan. Every
finding, decision and determination made by the Administrator (or its designee)
shall, to the full extent permitted by law, be final and binding upon all
parties.



     15. Designation of Beneficiary.



          (a) A participant may designate a beneficiary who is to receive any shares
of Common Stock 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 designate 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 a participant
is married and the designated beneficiary is not the spouse, spousal consent
shall be required for such designation to be effective.



          (b) Such designation of beneficiary may be changed by the participant at
any time. 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 or administrator 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.




          (c) All beneficiary designations under this Section 15 shall be made in
such form and manner as the Administrator may prescribe from time to time.



     16. 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 of Common Stock 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 Section 15) 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 from an Offering Period in accordance with Section
10.



     17. 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. Until
shares of Common Stock are issued under the Plan (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 an unsecured
creditor with respect to such shares.



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



     19. Adjustments, Dissolution, Liquidation, Merger or Change of Control.



          (a) Adjustments. In the event that any dividend or other distribution
(whether in the form of cash, Common Stock, other securities, or other
property), recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase, or exchange
of Common Stock or other securities of the Company, or other change in the
corporate structure of the Company affecting the Common Stock such that an
adjustment is determined by the Administrator (in its sole discretion) to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Administrator shall, in such manner as it may deem equitable, adjust the number
and class of Common Stock which may be delivered under the Plan, the Purchase
Price per share and the number of shares of Common Stock covered by each option
under the Plan which has not yet been exercised, and the numerical limits of
Sections 7 and 13.



          (b) Dissolution or Liquidation. 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 shall
terminate immediately prior to the consummation of such proposed dissolution or
liquidation, unless provided otherwise by the Board. The New Exercise Date
shall be before the date of the Company’s proposed dissolution or liquidation.
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 Section 10.



          (c) Merger or Change of Control. In the event of a merger of the Company
with or into another corporation or a 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 (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 merger or Change of Control. 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
Section 10.




     20. Amendment or Termination.



          (a) The Administrator may at any time and for any reason terminate or
amend the Plan. Except as provided in Section 19, no such termination can
affect options previously granted under the Plan, provided that an Offering
Period may be terminated by the Administrator on any Exercise Date if the
Administrator determines that the termination of the Plan is in the best
interests of the Company and its stockholders. Except as provided in Section
19 and this Section 20, 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 or provision or any other applicable law, regulation or stock exchange
rule), the Company shall obtain stockholder approval in such a manner and to
such a degree as required.



          (b) Without stockholder consent and without regard to whether any
participant rights may 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 exchange ratio 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 properly completed 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 amounts withheld 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 Administrator determines 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 such accounting consequence including,
but not limited to:



               (i) altering 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
Exercise Date, 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.




     21. 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.



     22. Conditions Upon Issuance of Shares. Shares of Common Stock shall not
be issued with respect to an option under the Plan 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, including the rules
and regulations promulgated thereunder, the Exchange Act 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. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the stockholders of the
Company. It shall continue in effect until terminated under Section 20.



     24. 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 the Common Stock on any Exercise Date in an Offering
Period is lower than the Fair Market Value of the Common Stock on the
Enrollment Date of such Offering Period, then all participants in such Offering
Period shall be automatically withdrawn from such Offering Period immediately
after the exercise of their option on such Exercise Date and automatically
re-enrolled in the immediately following Offering Period.