See original SEC file that this excerpt taken from at Form S-4 file number 333-45936 2000-09-15



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                                                                      APPENDIX K

                             CALDERA SYSTEMS, INC.
                          EMPLOYEE STOCK PURCHASE PLAN
         (AS AMENDED AND RESTATED EFFECTIVE AS OF              , 2000)

I. PURPOSE OF THE PLAN

     This Employee Stock Purchase Plan is intended to promote the interests of
Caldera Systems, Inc., a Delaware corporation, by providing eligible employees
with the opportunity to acquire a proprietary interest in the Corporation
through participation in a payroll-deduction based employee stock purchase plan
designed to qualify under Section 423 of the Code.

     Capitalized terms herein shall have the meanings assigned to such terms in
the attached Appendix.

II. ADMINISTRATION OF THE PLAN

     The Plan Administrator shall have full authority to interpret and construe
any provision of the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary in order to comply with the
requirements of Section 423 of the Code. Decisions of the Plan Administrator
shall be final and binding on all parties having an interest in the Plan.

III. STOCK SUBJECT TO PLAN

     A. The stock purchasable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares of Common Stock purchased
on the open market. The maximum number of shares of Common Stock which may be
issued in the aggregate under the Plan shall not exceed two million (2,000,000)
shares. Such share reserve includes (i) the 500,000 shares initially reserved
for issuance under the Plan plus (ii) the one million five hundred thousand
(1,500,000)-share increase authorized by the Board on                  , 2000
and subject to stockholder approval at the Special Meeting to be held on
                 , 2000.

     B. The number of shares of Common Stock available for issuance under the
Plan shall automatically increase on the first trading day of each calendar year
during the term of the Plan, beginning with the 2001 calendar year, by an amount
equal to one percent (1%) of the shares of Common Stock outstanding on the last
trading day of the immediately preceding calendar year, but in no event shall
such annual increase exceed Seven Hundred Fifty Thousand (750,000) shares.

     C. Should any change be made to the Common Stock by reason of any stock
split, stock dividend, recapitalization, combination of shares, exchange of
shares or other change affecting the outstanding Common Stock as a class without
the Corporation's receipt of consideration, appropriate adjustments shall be
made to (i) the maximum number and class of securities issuable under the Plan,
(ii) the maximum number and class of securities purchasable per Participant on
any one Purchase Date, (iii) the maximum number and class of securities
purchasable in total by all Participants on any one Purchase Date, (iv) the
maximum number and class of securities and the price per share in effect under
each outstanding purchase right in order to prevent the dilution or enlargement
of benefits thereunder.

IV. OFFERING PERIODS

     A. Shares of Common Stock shall be offered for purchase under the Plan
through a series of successive offering periods until such time as (i) the
maximum number of shares of Common Stock available for issuance under the Plan
shall have been purchased or (ii) the Plan shall have been sooner terminated.

     B. Each offering period shall be of such duration (not to exceed
twenty-four (24) months) as determined by the Plan Administrator prior to the
start date of such offering period. However, the initial
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offering period commenced at the Effective Time (March 20, 2000) and will
terminate on the last business day in April 2002. Subsequent offering periods
shall commence as designated by the Plan Administrator.

     C. Each offering period shall be comprised of a series of one or more
successive Purchase Intervals. Purchase Intervals shall run from the first
business day in May each year to the last business day in October of the same
year and from the first business day in November each year to the last business
day in April of the following year. However, the first Purchase Interval in
effect under the initial offering period commenced at the Effective Time and
will terminate on the last business day in October 2000.

     D. Should the Fair Market Value per share of Common Stock on any Purchase
Date within an offering period be less than the Fair Market Value per share of
Common Stock on the start date of that offering period, then that offering
period shall automatically terminate immediately after the purchase of shares of
Common Stock on such Purchase Date, and a new offering period shall commence on
the next business day following such Purchase Date. The new offering period
shall have a duration of twenty-four (24) months, unless a shorter duration is
established by the Plan Administrator within five (5) business days following
the start date of that offering period.

V. ELIGIBILITY

     A. Each individual who is an Eligible Employee on the start date of an
offering period under the Plan may enter that offering period on such start date
or on any subsequent Semi-Annual Entry Date within that offering period,
provided he or she remains an Eligible Employee.

     B. Each individual who first becomes an Eligible Employee after the start
date of an offering period may enter that offering period on any subsequent
Semi-Annual Entry Date within that offering period on which he or she is an
Eligible Employee.

     C. The date an individual enters an offering period shall be designated his
or her Entry Date for purposes of that offering period.

     D. To participate in the Plan for a particular offering period, the
Eligible Employee must complete the enrollment forms prescribed by the Plan
Administrator (including a stock purchase agreement and a payroll deduction
authorization) and file such forms with the Plan Administrator (or its
designate) on or before his or her scheduled Entry Date.

VI. PAYROLL DEDUCTIONS

     A. The payroll deduction authorized by the Participant for purposes of
acquiring shares of Common Stock during an offering period may be any multiple
of one percent (1%) of the Cash Earnings paid to the Participant during each
Purchase Interval within that offering period, up to a maximum of ten percent
(10%). The deduction rate so authorized shall continue in effect throughout the
offering period, except to the extent such rate is changed in accordance with
the following guidelines:

          (i) The Participant may, at any time during the offering period,
     reduce his or her rate of payroll deduction to become effective as soon as
     possible after filing the appropriate form with the Plan Administrator. The
     Participant may not, however, effect more than one (1) such reduction per
     Purchase Interval.

          (ii) The Participant may, prior to the commencement of any new
     Purchase Interval within the offering period, increase the rate of his or
     her payroll deduction by filing the appropriate form with the Plan
     Administrator. The new rate (which may not exceed the ten percent (10%)
     maximum) shall become effective on the start date of the first Purchase
     Interval following the filing of such form.

     B. Payroll deductions shall begin on the first pay day following the
Participant's Entry Date into the offering period and shall (unless sooner
terminated by the Participant) continue through the pay day ending with or
immediately prior to the last day of that offering period. The amounts so
collected shall be

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credited to the Participant's book account under the Plan, but no interest shall
be paid on the balance from time to time outstanding in such account. The
amounts collected from the Participant shall not be required to be held in any
segregated account or trust fund and may be commingled with the general assets
of the Corporation and used for general corporate purposes.

     C. Payroll deductions shall automatically cease upon the termination of the
Participant's purchase right in accordance with the provisions of the Plan.

     D. The Participant's acquisition of Common Stock under the Plan on any
Purchase Date shall neither limit nor require the Participant's acquisition of
Common Stock on any subsequent Purchase Date, whether within the same or a
different offering period.

VII. PURCHASE RIGHTS

     A. Grant of Purchase Right.  A Participant shall be granted a separate
purchase right for each offering period in which he or she participates. The
purchase right shall be granted on the Participant's Entry Date into the
offering period and shall provide the Participant with the right to purchase
shares of Common Stock, in a series of successive installments over the
remainder of such offering period, upon the terms set forth below. The
Participant shall execute a stock purchase agreement embodying such terms and
such other provisions (not inconsistent with the Plan) as the Plan Administrator
may deem advisable.

     Under no circumstances shall purchase rights be granted under the Plan to
any Eligible Employee if such individual would, immediately after the grant, own
(within the meaning of Code Section 424(d)) or hold outstanding options or other
rights to purchase, stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Corporation or any
Corporate Affiliate.

     B. Exercise of the Purchase Right.  Each purchase right shall be
automatically exercised in installments on each successive Purchase Date within
the offering period, and shares of Common Stock shall accordingly be purchased
on behalf of each Participant (other than Participants whose payroll deductions
have previously been refunded pursuant to the Termination of Purchase Right
provisions below) on each such Purchase Date. The purchase shall be effected by
applying the Participant's payroll deductions for the Purchase Interval ending
on such Purchase Date to the purchase of whole shares of Common Stock at the
purchase price in effect for the Participant for that Purchase Date.

     C. Purchase Price.  The purchase price per share at which Common Stock will
be purchased on the Participant's behalf on each Purchase Date within the
offering period shall be equal to eighty-five percent (85%) of the lower of (i)
the Fair Market Value per share of Common Stock on the Participant's Entry Date
into that offering period or (ii) the Fair Market Value per share of Common
Stock on that Purchase Date.

     D. Number of Purchasable Shares.  The number of shares of Common Stock
purchasable by a Participant on each Purchase Date during the offering period
shall be the number of whole shares obtained by dividing the amount collected
from the Participant through payroll deductions during the Purchase Interval
ending with that Purchase Date by the purchase price in effect for the
Participant for that Purchase Date. However, the maximum number of shares of
Common Stock purchasable per Participant on any one Purchase Date shall not
exceed Seven Hundred Fifty (750) shares, subject to periodic adjustments in the
event of certain changes in the Corporation's capitalization. In addition, the
maximum number of shares of Common Stock purchasable in total by all
Participants on any one Purchase Date under the Plan shall not exceed One
Hundred Twenty-Five Thousand (125,000) shares, subject to periodic adjustments
in the event of certain changes in the corporation's capitalization. However,
the Plan Administrator shall have the discretionary authority, exercisable prior
to the start of any offering period under the Plan, to increase or decrease the
limitations to be in effect for the number of shares purchasable per Participant
and in total by all Participants on each Purchase Date during that offering
period.

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   367

     E. Excess Payroll Deductions.  Any payroll deductions not applied to the
purchase of shares of Common Stock on any Purchase Date because they are not
sufficient to purchase a whole share of Common Stock shall be held for the
purchase of Common Stock on the next Purchase Date. However, any payroll
deductions not applied to the purchase of Common Stock by reason of the
limitation on the maximum number of shares purchasable on the Purchase Date
shall be promptly refunded.

     F. Termination of Purchase Right.  The following provisions shall govern
the termination of outstanding purchase rights:

          (i) A Participant may, at any time prior to the next scheduled
     Purchase Date in the offering period, terminate his or her outstanding
     purchase right by filing the appropriate form with the Plan Administrator
     (or its designate), and no further payroll deductions shall be collected
     from the Participant with respect to the terminated purchase right. Any
     payroll deductions collected during the Purchase Interval in which such
     termination occurs shall, at the Participant's election, be immediately
     refunded or held for the purchase of shares on the next Purchase Date. If
     no such election is made at the time such purchase right is terminated,
     then the payroll deductions collected with respect to the terminated right
     shall be refunded as soon as possible.

          (ii) The termination of such purchase right shall be irrevocable, and
     the Participant may not subsequently rejoin the offering period for which
     the terminated purchase right was granted. In order to resume participation
     in any subsequent offering period, such individual must re-enroll in the
     Plan (by making a timely filing of the prescribed enrollment forms) on or
     before his or her scheduled Entry Date into that offering period.

          (iii) Should the Participant cease to remain an Eligible Employee for
     any reason (including death, disability or change in status) while his or
     her purchase right remains outstanding, then that purchase right shall
     immediately terminate, and all of the Participant's payroll deductions for
     the Purchase Interval in which the purchase right so terminates shall be
     immediately refunded. However, should the Participant cease to remain in
     active service by reason of an approved unpaid leave of absence, then the
     Participant shall have the right, exercisable up until the last business
     day of the Purchase Interval in which such leave commences, to (a) withdraw
     all the payroll deductions collected to date on his or her behalf for that
     Purchase Interval or (b) have such funds held for the purchase of shares on
     his or her behalf on the next scheduled Purchase Date. In no event,
     however, shall any further payroll deductions be collected on the
     Participant's behalf during such leave. Upon the Participant's return to
     active service (x) within ninety (90) days following the commencement of
     such leave or (y) prior to the expiration of any longer period for which
     such Participant's right to reemployment with the Corporation is guaranteed
     by either statute or contract, his or her payroll deductions under the Plan
     shall automatically resume at the rate in effect at the time the leave
     began, unless the Participant withdraws from the Plan prior to his or her
     return. An individual who returns to active employment following a leave of
     absence which exceeds in duration the applicable (x) or (y) time period
     will be treated as a new Employee for purposes of the Plan and must, in
     order to resume participation in the Plan, re-enroll in the Plan (by making
     a timely filing of the prescribed enrollment forms) on or before his or her
     scheduled Entry Date into the offering period.

     G. Change of Control.  Each outstanding purchase right shall automatically
be exercised, immediately prior to the effective date of any Change of Control,
by applying the payroll deductions of each Participant for the Purchase Interval
in which such Change of Control occurs to the purchase of whole shares of Common
Stock at a purchase price per share equal to eighty-five percent (85%) of the
lower of (i) the Fair Market Value per share of Common Stock on the
Participant's Entry Date into the offering period in which such Change of
Control occurs or (ii) the Fair Market Value per share of Common Stock
immediately prior to the effective date of such Change of Control. However, the
applicable limitation on the number of shares of Common Stock purchasable per
Participant shall continue to apply to any such purchase, but not the limitation
on the number of shares of Common Stock purchasable in total by all Participants
on any one Purchase Date.

                                       K-4
   368

     The Corporation shall use its best efforts to provide at least ten
(10)-days prior written notice of the occurrence of any Change of Control, and
Participants shall, following the receipt of such notice, have the right to
terminate their outstanding purchase rights prior to the effective date of the
Change of Control.

     H. Proration of Purchase Rights.  Should the total number of shares of
Common Stock to be purchased pursuant to outstanding purchase rights on any
particular date exceed the number of shares then available for issuance under
the Plan, the Plan Administrator shall make a pro-rata allocation of the
available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate
purchase price payable for the Common Stock pro-rated to such individual, shall
be refunded.

     I. Assignability.  The purchase right shall be exercisable only by the
Participant and shall not be assignable or transferable by the Participant.

     J. Stockholder Rights.  A Participant shall have no stockholder rights with
respect to the shares subject to his or her outstanding purchase right until the
shares are purchased on the Participant's behalf in accordance with the
provisions of the Plan and the Participant has become a holder of record of the
purchased shares.

VIII. ACCRUAL LIMITATIONS

     A. No Participant shall be entitled to accrue rights to acquire Common
Stock pursuant to any purchase right outstanding under this Plan if and to the
extent such accrual, when aggregated with (i) rights to purchase Common Stock
accrued under any other purchase right granted under this Plan and (ii) similar
rights accrued under other employee stock purchase plans (within the meaning of
Code Section 423) of the Corporation or any Corporate Affiliate, would otherwise
permit such Participant to purchase more than Twenty-Five Thousand Dollars
($25,000) worth of stock of the Corporation or any Corporate Affiliate
(determined on the basis of the Fair Market Value per share on the date or dates
such rights are granted) for each calendar year such rights are at any time
outstanding.

     B. For purposes of applying such accrual limitations to the purchase rights
granted under the Plan, the following provisions shall be in effect:

          (i) The right to acquire Common Stock under each outstanding purchase
     right shall accrue in a series of installments on each successive Purchase
     Date during the offering period on which such right remains outstanding.

          (ii) No right to acquire Common Stock under any outstanding purchase
     right shall accrue to the extent the Participant has already accrued in the
     same calendar year the right to acquire Common Stock under one (1) or more
     other purchase rights at a rate equal to Twenty-Five Thousand Dollars
     ($25,000) worth of Common Stock (determined on the basis of the Fair Market
     Value per share on the date or dates of grant) for each calendar year such
     rights were at any time outstanding.

     C. If by reason of such accrual limitations, any purchase right of a
Participant does not accrue for a particular Purchase Interval, then the payroll
deductions which the Participant made during that Purchase Interval with respect
to such purchase right shall be promptly refunded.

     D. In the event there is any conflict between the provisions of this
Article and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article shall be controlling.

IX. EFFECTIVE DATE AND TERM OF THE PLAN

     A. The Plan was adopted by the Board on February 15, 2000 and became
effective at the Effective Time, provided no purchase rights granted under the
Plan shall be exercised, and no shares of Common Stock shall be issued
hereunder, until (i) the Plan shall have been approved by the stockholders of
the Corporation and (ii) the Corporation shall have complied with all applicable
requirements of the 1933 Act (including the registration of the shares of Common
Stock issuable under the Plan on a Form S-8

                                       K-5
   369

registration statement filed with the Securities and Exchange Commission), all
applicable listing requirements of any stock exchange (or the Nasdaq National
Market, if applicable) on which the Common Stock is listed for trading and all
other applicable requirements established by law or regulation. In the event
such stockholder approval is not obtained, or such compliance is not effected,
within twelve (12) months after the date on which the Plan is adopted by the
Board, the Plan shall terminate and have no further force or effect, and all
sums collected from Participants during the initial offering period hereunder
shall be refunded.

     B. Unless sooner terminated by the Board, the Plan shall terminate upon the
earliest of (i) the last business day in April 2010, (ii) the date on which all
shares available for issuance under the Plan shall have been sold pursuant to
purchase rights exercised under the Plan or (iii) the date on which all purchase
rights are exercised in connection with a Corporate Transaction. No further
purchase rights shall be granted or exercised, and no further payroll deductions
shall be collected, under the Plan following such termination.

X. AMENDMENT/TERMINATION OF THE PLAN

     A. The Board may alter, amend, suspend or terminate the Plan at any time to
become effective immediately following the close of any Purchase Interval.
However, the Plan may be amended or terminated immediately upon Board action, if
and to the extent necessary to assure that the Corporation will not recognize,
for financial reporting purposes, any compensation expense in connection with
the shares of Common Stock offered for purchase under the Plan, should the
financial accounting rules applicable to the Plan at the Effective Time be
subsequently revised so as to require the Corporation to recognize compensation
expense in the absence of such amendment or termination.

     B. In no event may the Board effect any of the following amendments or
revisions to the Plan without the approval of the Corporation's stockholders:
(i) increase the number of shares of Common Stock issuable under the Plan,
except for permissible adjustments in the event of certain changes in the
Corporation's capitalization, (ii) alter the purchase price formula so as to
reduce the purchase price payable for the shares of Common Stock purchasable
under the Plan or (iii) modify eligibility requirements for participation in the
Plan.

XI. GENERAL PROVISIONS

     A. Nothing in the Plan shall confer upon the Participant any right to
continue in the employ of the Corporation or any Corporate Affiliate for any
period of specific duration or interfere with or otherwise restrict in any way
the rights of the Corporation (or any Corporate Affiliate employing such person)
or of the Participant, which rights are hereby expressly reserved by each, to
terminate such person's employment at any time for any reason, with or without
cause.

     B. All costs and expenses incurred in the administration of the Plan shall
be paid by the Corporation; however, each Plan Participant shall bear all costs
and expenses incurred by such individual in the sale or other disposition of any
shares purchased under the Plan.

     C. The provisions of the Plan shall be governed by the laws of the State of
Colorado without regard to that State's conflict-of-laws rules.

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   370

                                                                      SCHEDULE A

                         CORPORATIONS PARTICIPATING IN
                          EMPLOYEE STOCK PURCHASE PLAN
                            AS OF THE EFFECTIVE TIME

                             CALDERA SYSTEMS, INC.

                                       K-7
   371

                                                                        APPENDIX

     The following definitions shall be in effect under the Plan:

     A. Board shall mean the Corporation's Board of Directors.

     B. Cash Earnings shall mean the (i) base salary payable to a Participant by
one or more Participating Corporations during such individual's period of
participation in one or more offering periods under the Plan plus (ii) all
overtime payments, bonuses, commissions, current profit-sharing distributions
and other incentive-type payments. Such Cash Earnings shall be calculated before
deduction of (A) any income or employment tax withholdings or (B) any pre-tax
contributions made by the Participant to any Code Section 401(k) salary deferral
plan or any Code Section 125 cafeteria benefit program now or hereafter
established by the Corporation or any Corporate Affiliate. However, Cash
Earnings shall not include any contributions (other than Code Section 401(k) or
Code Section 125 contributions) made by the Corporation or any Corporate
Affiliate on the Participant's behalf to any employee benefit or welfare plan
now or hereafter established (other than Code Section 401(k) or Code Section 125
contributions deducted from such Cash Earnings).

     C. Change of Control shall mean a change of ownership of the Corporation
pursuant to any of the following transactions:

          (i) a merger or consolidation in which securities possessing more than
     fifty percent (50%) of the total combined voting power of the Corporation's
     outstanding securities are transferred to a person or persons different
     from the persons holding those securities immediately prior to such
     transaction, or

          (ii) the sale, transfer or other disposition of all or substantially
     all of the assets of the Corporation in complete liquidation or dissolution
     of the Corporation, or

          (iii) the acquisition, directly or indirectly, by a person or related
     group of persons (other than the Corporation or a person that directly or
     indirectly controls, is controlled by or is under common control with the
     Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
     the 1934 Act) of securities possessing more than fifty percent (50%) of the
     total combined voting power of the Corporation's outstanding securities
     pursuant to a tender or exchange offer made directly to the Corporation's
     stockholders.

     D. Code shall mean the Internal Revenue Code of 1986, as amended.

     E. Common Stock shall mean the Corporation's common stock.

     F. Corporate Affiliate shall mean any parent or subsidiary corporation of
the Corporation (as determined in accordance with Code Section 424), whether now
existing or subsequently established.

     G. Corporation shall mean Caldera Systems, Inc., a Delaware corporation,
and any corporate successor to all or substantially all of the assets or voting
stock of Caldera Systems, Inc. which shall by appropriate action adopt the Plan.

     H. Effective Time shall mean March 20, 2000, the date on which the
Underwriting Agreement was executed. Any Corporate Affiliate which becomes a
Participating Corporation after such Effective Time shall designate a subsequent
Effective Time with respect to its employee-Participants.

     I. Eligible Employee shall mean any person who is employed by a
Participating Corporation on a basis under which he or she is regularly expected
to render more than twenty (20) hours of service per week for more than five (5)
months per calendar year for earnings considered wages under Code Section
3401(a).

     J. Entry Date shall mean the date an Eligible Employee first commences
participation in the offering period in effect under the Plan. The earliest
Entry Date under the Plan shall be the Effective Time.

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   372

     K. Fair Market Value per share of Common Stock on any relevant date shall
be determined in accordance with the following provisions:

          (i) If the Common Stock is at the time traded on the Nasdaq National
     Market, then the Fair Market Value shall be the closing selling price per
     share of Common Stock on the date in question, as such price is reported by
     the National Association of Securities Dealers on the Nasdaq National
     Market and published in The Wall Street Journal. If there is no closing
     selling price for the Common Stock on the date in question, then the Fair
     Market Value shall be the closing selling price on the last preceding date
     for which such quotation exists.

          (ii) If the Common Stock is at the time listed on any Stock Exchange,
     then the Fair Market Value shall be the closing selling price per share of
     Common Stock on the date in question on the Stock Exchange determined by
     the Plan Administrator to be the primary market for the Common Stock, as
     such price is officially quoted in the composite tape of transactions on
     such exchange and published in The Wall Street Journal. If there is no
     closing selling price for the Common Stock on the date in question, then
     the Fair Market Value shall be the closing selling price on the last
     preceding date for which such quotation exists.

          (iii) For purposes of the initial offering period which begins at the
     Effective Time, the Fair Market Value shall be deemed to be equal to the
     price per share at which the Common Stock is sold in the initial public
     offering pursuant to the Underwriting Agreement.

     L. 1933 Act shall mean the Securities Act of 1933, as amended.

     M. Participant shall mean any Eligible Employee of a Participating
Corporation who is actively participating in the Plan.

     N. Participating Corporation shall mean the Corporation and such Corporate
Affiliate or Affiliates as may be authorized from time to time by the Board to
extend the benefits of the Plan to their Eligible Employees. The Participating
Corporations in the Plan are listed in attached Schedule A.

     O. Plan shall mean the Corporation's Employee Stock Purchase Plan, as set
forth in this document.

     P. Plan Administrator shall mean the committee of two (2) or more Board
members appointed by the Board to administer the Plan.

     Q. Purchase Date shall mean the last business day of each Purchase
Interval. The initial Purchase Date shall be October 31, 2000.

     R. Purchase Interval shall mean each successive six (6)-month period within
the offering period at the end of which there shall be purchased shares of
Common Stock on behalf of each Participant.

     S. Semi-Annual Entry Date shall mean the first business day in May and
November each year on which an Eligible Employee may first enter an offering
period.

     T. Stock Exchange shall mean either the American Stock Exchange or the New
York Stock Exchange.

     U. Underwriting Agreement shall mean the agreement between the Corporation
and the underwriter or underwriters managing the Corporation's initial public
offering of its Common Stock.

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