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Exhibit 4.9    
  


 
 

ESCENE NETWORKS, INC.    
    
    2000 STOCK INCENTIVE PLAN    
  


        1.    Purposes of the Plan.    The purposes of this Stock Incentive Plan are to attract and retain the best available
personnel, to provide additional incentive to Employees, Directors and Consultants and to promote the success of the Company's business. 



        2.    Definitions.    As used herein, the following definitions shall apply: 



        (a)  "Administrator"
means the Board or any of the Committees appointed to administer the Plan. 


        (b)  "Applicable
Laws" means the legal requirements relating to the administration of stock incentive plans, if any, under applicable provisions of federal and state
securities laws, the corporate laws of California and, to the extent other than California, the corporate law of the state of the Company's incorporation, the Code, the rules of any applicable stock
exchange or national market system, and the rules of any foreign jurisdiction applicable to Awards granted to residents therein. 


        (c)  "Award"
means the grant of an Option, Restricted Stock, or other right or benefit under the Plan. 


        (d)  "Award
Agreement" means the written agreement evidencing the grant of an Award executed by the Company and the Grantee, including any amendments thereto. 



        (e)  "Board"
means the Board of Directors of the Company. 


        (f)    "Code"
means the Internal Revenue Code of 1986, as amended. 


        (g)  "Committee"
means any committee appointed by the Board to administer the Plan. 


        (h)  "Common
Stock" means the common stock of the Company. 


        (i)    "Company"
means eSCENE Networks, Inc., a Delaware corporation. 



        (j)    "Consultant"
means any person (other than an Employee or a Director, solely with respect to rendering services in such person's capacity as a Director) who is engaged by
the Company or any Related Entity to render consulting or advisory services to the Company or such Related Entity. 


        (k)  "Continuous
Service" means that the provision of services to the Company or a Related Entity in any capacity of Employee, Director or Consultant, is not interrupted or
terminated. Continuous Service shall not be considered interrupted in the case of (i) any approved leave of absence, (ii) transfers among the Company, any Related Entity, or any
successor, in any capacity of Employee, Director or Consultant, or (iii) any change in status as long as the individual remains in the service of the Company or a Related Entity in any capacity
of Employee, Director or Consultant (except as otherwise provided in the Award Agreement). An approved leave of absence shall include sick leave, military leave, or any other authorized personal
leave. For purposes of each Incentive Stock Option granted under the Plan, if such leave exceeds ninety (90) days, and reemployment upon expiration of such leave is not guaranteed by statute or
contract, then the Incentive Stock Option shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1) day following the expiration of such ninety
(90) day period. 






 




        (l)    "Corporate
Transaction" means any of the following transactions to which the Company is a party: 



          (i)  a
merger or consolidation in which the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which the
Company is incorporated; 


        (ii)  the
sale, transfer or other disposition of all or substantially all of the assets of the Company (including the capital stock of the Company's subsidiary corporations); 


        (iii)  approval
by the Company's shareholders of any plan or proposal for the complete liquidation or dissolution of the Company; 


        (iv)  any
reverse merger in which the Company is the surviving entity but in which securities possessing more than fifty percent (50%) of the total combined voting power of
the Company's outstanding securities are transferred to a person or persons different from those who held such securities immediately prior to such merger; or 



        (v)  acquisition
by any person or related group of persons (other than the Company or by a Company-sponsored employee benefit plan) of beneficial ownership (within the
meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company's outstanding securities, but
excluding any such transaction that the Administrator determines shall not be a Corporate Transaction. 




        (m)  "Director"
means a member of the Board or the board of directors of any Related Entity. 


        (n)  "Disability"
means a Grantee would qualify for benefit payments under the long-term disability policy of the Company or the Related Entity to which the
Grantee provides services regardless of whether the Grantee is covered by such policy. If the Company or the Related Entity to which the Grantee provides service does not have a long-term
disability plan in place, "Disability" means that a Grantee is permanently unable to carry out the responsibilities and functions of the position held by the Grantee by reason of any medically
determinable physical or mental impairment. A Grantee will not be considered to have incurred a Disability unless he or she furnishes proof of such impairment sufficient to satisfy the Administrator
in its discretion. 



        (o)  "Employee"
means any person, including an Officer or Director, who is an employee of the Company or any Related Entity. The payment of a director's fee by the Company or
a Related Entity shall not be sufficient to constitute "employment" by the Company. 


        (p)  "Exchange
Act" means the Securities Exchange Act of 1934, as amended. 


        (q)  "Fair
Market Value" means, as of any date, the value of Common Stock determined as follows: 



          (i)  Where
there exists a public market for the Common Stock, the Fair Market Value shall be (A) the closing price for a Share for the last market trading day prior
to the time of the determination (or, if no closing price was reported on that date, on the last trading date on which a closing price was reported) on the stock exchange determined by the
Administrator to be the primary market for the Common Stock or the Nasdaq National Market, whichever is applicable or (B) if the Common Stock is not traded on any such exchange or national
market system, the average of the closing bid and asked prices of a Share on the Nasdaq Small Cap Market for the day prior to the time of the determination (or, if no such prices were reported on that
date, on the last date on which such prices were reported), in each case, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or 




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        (ii)  In
the absence of an established market for the Common Stock of the type described in (i), above, the Fair Market Value thereof shall be determined by the Administrator
in good faith and in a manner consistent with Section 260.140.50 of Title 10 of the California Code of Regulations. 




        (r)  "Grantee"
means an Employee, Director or Consultant who receives an Award under the Plan. 


        (s)  "Incentive
Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code. 


        (t)    "Non-Qualified
Stock Option" means an Option not intended to qualify as an Incentive Stock Option. 


        (u)  "Officer"
means a person who is an officer of the Company or a Related Entity within the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder. 


        (v)  "Option"
means an option to purchase Shares pursuant to an Award Agreement granted under the Plan. 


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


        (x)  "Plan"
means this 2000 Stock Incentive Plan. 


        (y)  "Post-Termination
Exercise Period" means the period specified in the Award Agreement of not less than three (3) months commencing on the date of
termination of the Grantee's Continuous Service, or such longer period as may be applicable upon death or Disability. 



        (z)  "Registration
Date" means the first to occur of (i) the closing of the first sale to the general public of (A) the Common Stock or (B) the same
class of securities of a successor corporation (or its Parent) issued pursuant to a Corporate Transaction in exchange for or in substitution of the Common Stock, pursuant to a registration statement
filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended; and (ii) in the event of a Corporate Transaction, the date of the
consummation of the Corporate Transaction if the same class of securities of the successor corporation (or its Parent) issuable in such Corporate Transaction shall have been sold to the general public
pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended, on or prior to the date of consummation
of such Corporate Transaction. 


        (aa) "Related
Entity" means any Parent, Subsidiary and any business, corporation, partnership, limited liability company or other entity in which the Company, a Parent or a
Subsidiary holds a substantial ownership interest, directly or indirectly. 


        (bb) "Restricted
Stock" means Shares issued under the Plan to the Grantee for such consideration, if any, and subject to such restrictions on transfer, rights of first
refusal, repurchase provisions, forfeiture provisions, and other terms and conditions as established by the Administrator. 


        (cc) "Share"
means a share of the Common Stock. 


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



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        3.    Stock Subject to the Plan.    



        (a)  Subject
to the provisions of Section 11(a) below, the maximum aggregate number of Shares which may be issued pursuant to all Awards (including Incentive Stock
Options) is 4,400,000 Shares. The Shares may be authorized, but unissued, or reacquired Common Stock. 


        (b)  Any
Shares covered by an Award (or portion of an Award) which is forfeited or canceled, expires or is settled in cash, shall be deemed not to have been issued for
purposes of determining the maximum aggregate number of Shares which may be issued under the Plan. Shares that actually have been issued under the Plan pursuant to an Award shall not be returned to
the Plan and shall not become available for future issuance under the Plan, except that if unvested Shares are forfeited, or repurchased by the Company at their original purchase price, such Shares
shall become available for future grant under the Plan. 




        4.    Administration of the Plan.    



        (a)    Plan Administrator.    With respect to grants of Awards to Employees, Directors, or Consultants, the Plan shall
be administered by (A) the Board or (B) a Committee (or a subcommittee of the Committee) designated by the Board, which Committee shall be constituted in such a manner as to satisfy
Applicable Laws. Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board. The Board may authorize one or more Officers to grant Awards
subject to such limitations as the Board determines from time to time. 



        (b)    Multiple Administrative Bodies.    The Plan may be administered by different bodies with respect to Directors,
Officers, Consultants, and Employees who are neither Directors nor Officers. 


        (c)    Powers of the Administrator.    Subject to Applicable Laws and the provisions of the Plan (including any other
powers given to the Administrator hereunder), and except as otherwise provided by the Board, the Administrator shall have the authority, in its discretion: 



          (i)  to
select the Employees, Directors and Consultants to whom Awards may be granted from time to time hereunder; 


        (ii)  to
determine whether and to what extent Awards are granted hereunder; 


        (iii)  to
determine the number of Shares or the amount of other consideration to be covered by each Award granted hereunder; 


        (iv)  to
approve forms of Award Agreements for use under the Plan; 


        (v)  to
determine the terms and conditions of any Award granted hereunder; 



        (vi)  to
establish additional terms, conditions, rules or procedures to accommodate the rules or laws of applicable foreign jurisdictions and to afford Grantees favorable
treatment under such rules or laws; provided, however, that no Award shall be granted under any such additional terms, conditions, rules or procedures with terms or conditions which are inconsistent
with the provisions of the Plan; 


      (vii)  to
amend the terms of any outstanding Award granted under the Plan, provided that any amendment that would adversely affect the Grantee's rights under an outstanding
Award shall not be made without the Grantee's written consent; 


      (viii)  to
construe and interpret the terms of the Plan and Awards, including without limitation, any notice of award or Award Agreement, granted pursuant to THE Plan; and 


        (ix)  to
take such other action, not inconsistent with the terms of the Plan, as the Administrator deems appropriate. 




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        5.    Eligibility.    Awards other than Incentive Stock Options may be granted to Employees, Directors and
Consultants. Incentive Stock Options may be granted only to Employees of the Company, a Parent or a Subsidiary. An Employee, Director or Consultant who has been granted an Award may, if otherwise
eligible, be granted additional Awards. Awards may be granted to such Employees, Directors or Consultants who are residing in foreign jurisdictions as the Administrator may determine from time to
time. 


        6.    Terms and Conditions of Awards.    



        (a)    Type of Awards.    The Administrator is authorized under the Plan to award any type of arrangement to an
Employee, Director or Consultant that is not inconsistent with the provisions of the Plan and that by its terms involves or might involve the issuance of (i) Shares, (ii) an Option, or
similar right with a fixed or variable price related to the Fair Market Value of the Shares and with an exercise or conversion privilege related to the passage of time, the occurrence of one or more
events, or the satisfaction of performance criteria or other conditions, or (iii) any other security with the value derived from the value of the Shares. Such awards include, without
limitation, Options, or sales or bonuses of Restricted Stock, and an Award may consist of one such security or benefit, or two (2) or more of them in any combination or alternative. 


        (b)    Designation of Award.    Each Award shall be designated in the Award Agreement. In the case of an Option, the
Option shall be designated as either an Incentive Stock Option or a Non-Qualified Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market
Value of Shares subject to Options designated as Incentive Stock Options which become exercisable for the first time by a Grantee during any calendar year (under all plans of the Company or any Parent
or Subsidiary) exceeds $100,000, such excess Options, to the extent of the Shares covered thereby in excess of the foregoing limitation, shall be treated as Non-Qualified Stock Options.
For this purpose, Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the Shares shall be determined as of the grant date of the
relevant Option. 


        (c)    Conditions of Award.    Subject to the terms of the Plan, the Administrator shall determine the provisions,
terms, and conditions of each Award including, but not limited to, the Award vesting schedule, repurchase provisions, rights of first refusal, forfeiture provisions, form of payment (cash, Shares, or
other consideration) upon settlement of the Award, payment contingencies, and satisfaction of any performance criteria. The performance criteria established by the Administrator may be based on any
one of, or combination of, increase in share price, earnings per share, total shareholder return, return on equity, return on assets, return on investment, net operating income, cash flow, revenue,
economic value added, personal management objectives, or other measure of performance selected by the Administrator. Partial achievement of the specified criteria may result in a payment or vesting
corresponding to the degree of achievement as specified in the Award Agreement. 


        (d)    Acquisitions and Other Transactions.    The Administrator may issue Awards under the Plan in settlement,
assumption or substitution for, outstanding awards or obligations to grant future awards in connection with the Company or a Related Entity acquiring another entity, an interest in another entity or
an additional interest in a Related Entity whether by merger, stock purchase, asset purchase or other form of transaction. 


        (e)    Deferral of Award Payment.    The Administrator may establish one or more programs under the Plan to permit
selected Grantees the opportunity to elect to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event that absent the election would entitle the
Grantee to payment or receipt of Shares or other consideration under an Award. The Administrator may establish the election procedures, the timing of such elections, the mechanisms for payments of,
and accrual of interest or other 



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earnings, if any, on amounts, Shares or other consideration so deferred, and such other terms, conditions, rules and procedures that the Administrator deems advisable for the administration of any
such deferral program. 


        (f)    Award Exchange Programs.    The Administrator may establish one or more programs under the Plan to permit
selected Grantees to exchange an Award under the Plan for one or more other types of Awards under the Plan on such terms and conditions as determined by the Administrator from time to time. 


        (g)    Separate Programs.    The Administrator may establish one or more separate programs under the Plan for the
purpose of issuing particular forms of Awards to one or more classes of Grantees on such terms and conditions as determined by the Administrator from time to time. 



        (h)    Early Exercise.    The Award Agreement may, but need not, include a provision whereby the Grantee may elect at
any time while an Employee, Director or Consultant to exercise any part or all of the Award prior to full vesting of the Award. Any unvested Shares received pursuant to such exercise may be subject to
a repurchase right in favor of the Company or a Related Entity or to any other restriction the Administrator determines to be appropriate. 


        (i)    Term of Award.    The term of each Award shall be the term stated in the Award Agreement, provided, however,
that the term shall be no more than ten (10) years from the date of grant thereof. However, in the case of an Incentive Stock Option granted to a Grantee who, at the time the Option is granted,
owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be five
(5) years from the date of grant thereof or such shorter term as may be provided in the Award Agreement. 


        (j)    Transferability of Awards.    Non-Qualified Stock Options shall be transferable (i) to the
extent provided in the Award Agreement and in a manner consistent with Section 260.140.41 of Title 10 of the California Code of Regulations and (ii) by will, and by the laws of descent
and distribution. Incentive Stock Options and other Awards may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Grantee, only by the Grantee. 


        (k)    Time of Granting Awards.    The date of grant of an Award shall for all purposes be the date on which the
Administrator makes the determination to grant such Award, or such other date as is determined by the Administrator. Notice of the grant determination shall be given to each Employee, Director or
Consultant to whom an Award is so granted within a reasonable time after the date of such grant. 




        7.    Award Exercise or Purchase Price, Consideration and Taxes.    



        (a)    Exercise or Purchase Price.    The exercise or purchase price, if any, for an Award shall be as follows: 



          (i)  In
the case of an Incentive Stock Option: 



        (A)  granted
to an Employee who, at the time of the grant of such Incentive Stock Option owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price shall be not less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant;
or 





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        (B)  granted
to any Employee other than an Employee described in the preceding paragraph, the per Share exercise price shall be not less than one hundred percent (100%) of
the Fair Market Value per Share on the date of grant. 




        (ii)  In
the case of a Non-Qualified Stock Option: 



        (A)  granted
to a person who, at the time of the grant of such Option, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be not less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant; or 


        (B)  granted
to any person other than a person described in the preceding paragraph, the per Share exercise price shall be not less than eighty-five percent (85%)
of the Fair Market Value per Share on the date of grant. 




        (iii)  In
the case of the sale of Shares: 



        (A)  granted
to a person who, at the time of the grant of such Award, or at the time the purchase is consummated, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share purchase price shall be not less than one hundred percent (100%) of the Fair Market Value per Share on
the date of grant; or 


        (B)  granted
to any person other than a person described in the preceding paragraph, the per Share purchase price shall be not less than eighty-five percent (85%)
of the Fair Market Value per Share on the date of grant. 




        (iv)  In
the case of other Awards, such price as is determined by the Administrator. 


        (v)  Notwithstanding
the foregoing provisions of this Section 7(a), in the case of an Award issued pursuant to Section 6(d), above, the exercise or purchase
price for the Award shall be determined in accordance with the principles of Section 424(a) of the Code. 




        (b)    Consideration.    Subject to Applicable Laws, the consideration to be paid for the Shares to be issued upon
exercise or purchase of an Award including the method of payment, shall be determined by the Administrator (and, in the case of an Incentive Stock Option, shall be determined at the time of grant). In
addition to any other types of consideration the Administrator may determine, the Administrator is authorized to accept as consideration for Shares issued under the Plan the following: 



          (i)  cash;



        (ii)  check;



        (iii)  delivery
of Grantee's promissory note with such recourse, interest, security, and redemption provisions as the Administrator determines as appropriate; 


        (iv)  if
the exercise or purchase occurs on or after the Registration Date, surrender of Shares or delivery of a properly executed form of attestation of ownership of Shares
as the Administrator may require (including withholding of Shares otherwise deliverable upon exercise of the Award) which have a Fair Market Value on the date of surrender or attestation equal to the
aggregate exercise price of the Shares as to which said Award shall be exercised (but only to the extent that such exercise of the Award would not result in an accounting compensation charge with
respect to the Shares used to pay the exercise price unless otherwise determined by the Administrator); 




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        (v)  with
respect to Options, if the exercise occurs on or after the Registration Date, payment through a broker-dealer sale and remittance procedure pursuant to which the
Grantee (A) shall provide written instructions to a Company designated brokerage firm to effect the immediate sale of some or all of the purchased Shares and remit to the Company, out of the
sale proceeds available on the settlement date, sufficient funds to cover the aggregate exercise price payable for the purchased Shares and (B) shall provide written directives to the Company
to deliver the certificates for the purchased Shares directly to such brokerage firm in order to complete the sale transaction; or 


        (vi)  any
combination of the foregoing methods of payment. 




        (c)    Taxes.    No Shares shall be delivered under the Plan to any Grantee or other person until such Grantee or
other person has made arrangements acceptable to the Administrator for the satisfaction of any foreign, federal, state, or local income and employment tax withholding obligations, including, without
limitation, obligations incident to the receipt of Shares or the disqualifying disposition of Shares received on exercise of an Incentive Stock Option. Upon exercise of an Award the Company shall
withhold or collect from Grantee an amount sufficient to satisfy such tax obligations. 




        8.    Exercise of Award.    



        (a)  Procedure
for Exercise; Rights as a Shareholder. 



          (i)  Any
Award granted hereunder shall be exercisable at such times and under such conditions as determined by the Administrator under the terms of the Plan and specified in
the Award Agreement but in the case of an Option, in no case at a rate of less than twenty percent (20%) per year over five (5) years from the date the Option is granted, subject to reasonable
conditions such as continued employment. Notwithstanding the foregoing, in the case of an Option granted to an Officer, Director or Consultant, the Award Agreement may provide that the Option may
become exercisable, subject to reasonable conditions such as such Officer's, Director's or Consultant's Continuous Service, at any time or during any period established in the Award Agreement. 



        (ii)  An
Award shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Award by the person
entitled to exercise the Award and full payment for the Shares with respect to which the Award is exercised, including, to the extent selected, use of the broker-dealer sale and remittance procedure
to pay the purchase price as provided in Section 7(b)(v). Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to Shares subject to an Award,
notwithstanding the exercise of an Option or other Award. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued,
except as provided in the Award Agreement or Section 11(a), below. 




        (b)    Exercise of Award Following Termination of Continuous Service.    In the event of termination of a Grantee's
Continuous Service for any reason other than Disability or death (but not in the event of a Grantee's change of status from Employee to Consultant or from Consultant to Employee), such Grantee may,
but only during the Post-Termination Exercise Period (but in no event later than the expiration date of the term of such Award as set forth in the Award Agreement), exercise the Award to
the extent that the Grantee was entitled to exercise it at the date of such termination or to such other extent as may be determined by the Administrator In the event of a Grantee's change of status
from Employee to Consultant, an Employee's Incentive 



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Stock Option shall convert automatically to a Non-Qualified Stock Option on the day three (3) months and one day following such change of status. To the extent that the Grantee is
not entitled to exercise the Award at the date of termination, or if the Grantee does not exercise such Award to the extent so entitled within the Post-Termination Exercise Period, the
Award shall terminate. 


        (c)    Disability of Grantee.    In the event of termination of a Grantee's Continuous Service as a result of his or
her Disability, Grantee may, but only within six (6) months from the date of such termination (and in no event later than the expiration date of the term of such Award as set forth in the Award
Agreement), exercise the Award to the extent that the Grantee was otherwise entitled to exercise it at the date of such termination; provided, however, that if such Disability is not a "disability" as
such term is defined in Section 22(e)(3) of the Code, in the case of an Incentive Stock Option such Incentive Stock Option shall automatically convert to a Non-Qualified Stock
Option on the day three (3) months and one day following such termination. To the extent that the Grantee is not entitled to exercise the Award at the date of termination, or if Grantee does
not exercise such Award to the extent so entitled within the time specified herein, the Award shall terminate. 


        (d)    Death of Grantee.    In the event of a termination of the Grantee's Continuous Service as a result of his or
her death, or in the event of the death of the Grantee during the Post-Termination Exercise Period or during the twelve (12) month period following the Grantee's termination of
Continuous Service as a result of his or her Disability, the Grantee's estate or a person who acquired the right to exercise the Award by bequest or inheritance may exercise the Award, but only to the
extent that the Grantee was entitled to exercise the Award as of the date of termination, within twelve (12) months from the date of death (but in no event later than the expiration of the term
of such Award as set forth in the Award Agreement). To the extent that, at the time of death, the Grantee was not entitled to exercise the Award, or if the Grantee's estate or a person who acquired
the right to exercise the Award by bequest or inheritance does not exercise such Award to the extent so entitled within the time specified herein, the Award shall terminate. 




        9.    Conditions Upon Issuance of Shares.    



        (a)  Shares
shall not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and delivery of such Shares pursuant thereto shall
comply with all Applicable Laws, and shall be further subject to the approval of counsel for the Company with respect to such compliance. 


        (b)  As
a condition to the exercise of an Award, the Company may require the person exercising such Award 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 Applicable Laws. 




        10.    Repurchase Rights.    If the provisions of an Award Agreement grant to the Company the right to repurchase
Shares upon termination of the Grantee's Continuous Service, the Award Agreement shall (or may, with respect to Awards granted or issued to Officers, Directors or Consultants) provide that: 



        (a)  the
right to repurchase must be exercised, if at all, within ninety (90) days of the termination of the Grantee's Continuous Service (or in the case of Shares
issued upon exercise of Awards after the date of termination of the Grantee's Continuous Service, within ninety (90) days after the date of the Award exercise); 



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        (b)  the
consideration payable for the Shares upon exercise of such repurchase right shall be made in cash or by cancellation of purchase money indebtedness within the ninety
(90) day periods specified in Section 10(a); 


        (c)  the
amount of such consideration shall (i) be equal to the original purchase price paid by Grantee for each such Share; provided, that the right to repurchase
such Shares at the original purchase price shall lapse at the rate of at least twenty percent (20%) of the Shares subject to the Award per year over five (5) years from the date the Award is
granted (without respect to the date the Award was exercised or became exercisable), and (ii) with respect to Shares, other than Shares subject to repurchase at the original purchase price
pursuant to clause (i) above, not less than the Fair Market Value of the Shares to be repurchased on the date of termination of Grantee's Continuous Service; and 



        (d)  the
right to repurchase Shares, other than the right to repurchase Shares at the original purchase price pursuant to clause (i) of Section 10(c), shall
terminate on the Registration Date. 




        11.    Adjustments Upon Changes in Capitalization or Corporate Transaction.    



        (a)    Adjustments upon Changes in Capitalization.    Subject to any required action by the shareholders of the
Company, the number of Shares covered by each outstanding Award, and the number of Shares which have been authorized for issuance under the Plan but as to which no Awards have yet been
granted or which have been returned to the Plan, the exercise or purchase price of each such outstanding Award, as well as any other terms that the Administrator determines require adjustment shall be
proportionately adjusted for (i) any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of
the Shares, or similar transaction affecting the Shares, (ii) any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company, or
(iii) as the Administrator may determine in its discretion, any other transaction with respect to Common Stock to which Section 424(a) of the Code applies or a similar transaction;
provided, however that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be made by the
Administrator and its determination shall be final, binding and conclusive. Except as the Administrator determines, no issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment by reason hereof shall be made with respect to, the number or price of Shares subject to an Award. 


        (b)    Corporate Transaction.    



        Termination
of Award if Not Assumed. In the event of a Corporate Transaction, each Award will terminate upon the consummation of the Corporate Transaction, unless the Award is assumed by
the successor corporation or Parent thereof in connection with the Corporate Transaction. 


        Acceleration
of Award Upon Corporate Transaction. Except as provided otherwise in an individual Award Agreement, in the event of any Corporate Transaction, there will not be any
acceleration of vesting or exercisability of any Award. 




        12.    Effective Date and Term of Plan.    The Plan shall become effective upon the earlier to occur of its adoption
by the Board or its approval by the shareholders of the Company. It shall continue in effect for a term of ten (10) years unless sooner terminated. Subject to Section 17, below, and
Applicable Laws, Awards may be granted under the Plan upon its becoming effective. 


        13.    Amendment, Suspension or Termination of the Plan.    



        (a)  The
Board may at any time amend, suspend or terminate the Plan. To the extent necessary to comply with Applicable Laws, the Company shall obtain shareholder approval of
any Plan amendment in such a manner and to such a degree as required. 



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        (b)  No
Award may be granted during any suspension of the Plan or after termination of the Plan. 


        (c)  Any
amendment, suspension or termination of the Plan (including termination of the Plan under Section 12, above) shall not affect Awards already granted, and such
Awards shall remain in full force and effect as if the Plan had not been amended, suspended or terminated, unless mutually agreed otherwise between the Grantee and the Administrator, which agreement
must be in writing and signed by the Grantee and the Company. 




        14.    Reservation of Shares.    



        (a)  The
Company, during the term of the Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the
Plan. 


        (b)  The
inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have
been obtained. 




        15.    No Effect on Terms of Employment/Consulting Relationship.    The Plan shall not confer upon any Grantee any
right with respect to the Grantee's Continuous Service, nor shall it interfere in any way with his or her right or the Company's right to terminate the Grantee's Continuous Service at any time, and
with or without notice. 


        16.    No Effect on Retirement and Other Benefit Plans.    Except as specifically provided in a retirement or other
benefit plan of the Company or a Related Entity, Awards shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or a Related
Entity, and shall not affect any benefits under any other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related to level of
compensation. The Plan is not a "Retirement Plan" or "Welfare Plan" under the Employee Retirement Income Security Act of 1974, as amended. 


        17.    Shareholder Approval.    Continuance of the Plan shall be subject to approval by the shareholders of the
Company within twelve (12) months before or after the date the Plan is adopted. Such shareholder approval shall be obtained in the degree and manner required under Applicable Laws. Any Award
exercised before shareholder approval is obtained shall be rescinded if shareholder approval is not obtained within the time prescribed, and Shares issued on the exercise of any such Award shall not
be counted in determining whether shareholder approval is obtained. 


        18.    Information to Grantees.    The Company shall provide to each Grantee, during the period for which such Grantee
has one or more Awards outstanding, copies of financial statements at least annually. 


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Exhibit 4.9


ESCENE NETWORKS, INC. 2000 STOCK INCENTIVE PLAN