OpenAir, Inc. 2008 Restricted Stock Unit Plan



 Exhibit 10.5 
 OPENAIR, INC. 
 2008 RESTRICTED STOCK UNIT PLAN 
 1. Purposes of the Plan. The purposes of this Plan are: 
  

	 	•	 	 to attract and retain the best available personnel for positions of substantial responsibility, 


  

	 	•	 	 to provide additional incentive to Employees, Directors and Consultants, and 


  

	 	•	 	 to promote the success of the Company’s business. 


 The Plan permits the grant of Restricted Stock Units. 
 2. Definitions. As used herein, the following
definitions will apply: 
 (a) “Administrator” means the Board or any of its Committees as will be
administering the Plan, in accordance with Section 4 of the Plan. 
 (b) “Applicable Laws” means the
requirements relating to the administration of equity-based awards under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the
applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted under the Plan. 
 (c)
“Award” means, individually or collectively, a grant under the Plan of Restricted Stock Units. 
 (d)
“Award Agreement” means the written or electronic agreement setting forth the terms and provisions applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan. 

(e) “Board” means the Board of Directors of the Company. 
 (f) “Change in 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;

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








 (iii) A change in the composition of the Board occurring within a two (2)-year period, 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, or (B) are elected, or nominated for
election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors to the Company); or 
 (iv) 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; 
 provided, however, that the consummation of the Merger and the transactions
related thereto shall not be considered a Change in Control for purposes of the Plan. 
 (g) “Closing” means
the end of the day of the closing of the Merger. 
 (h) “Code” means the Internal Revenue Code of 1986, as
amended. Any reference to a section of the Code herein will be a reference to any successor or amended section of the Code. 
 (i) “Committee” means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board in accordance with Section 4 hereof. 
 (j) “Common Stock” means, prior to the Closing, the common stock of the Company and, from and after the Closing, the
common stock of NetSuite, Inc. 
 (k) “Company” means OpenAir, Inc, a Delaware corporation, or any successor
thereto. Upon the Closing, “Company” shall mean NetSuite, Inc., a Delaware corporation, as the successor to this Plan and all outstanding Awards. 
 (l) “Consultant” means any person, including an advisor, engaged by the Company or a Parent or Subsidiary to render services to such entity. 
 (m) “Director” means a member of the Board. 
 (n) “Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code, provided that the
Administrator in its discretion may determine whether a permanent and total disability exists in accordance with uniform and non-discriminatory standards adopted by the Administrator from time to time. 
 (o) “Employee” means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of
the Company. Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company. 
  

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 (p) “Exchange Act” means the Securities Exchange Act of 1934, as
amended. 
 (q) “Exchange Program” means a program under which (i) outstanding Awards are surrendered or
cancelled in exchange for Awards of the same type (which may have higher or lower exercise prices and different terms), Awards of a different type, and/or cash, (ii) Participants would have the opportunity to transfer any outstanding Awards to
a financial institution or other person or entity selected by the Administrator, and/or (iii) the exercise price of an outstanding Award is reduced. The Administrator will determine the terms and conditions of any Exchange Program in its sole
discretion. 
 (r) “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 New York Stock Exchange, its Fair Market Value will be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; 
 (ii) If the Common Stock is regularly quoted
by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share will be the mean between the high bid and low asked prices for the Common Stock on the day 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, the Fair Market Value will be determined in good faith by the Administrator. 
 (s) “Fiscal
Year” means the fiscal year of the Company. 
 (t) “Merger” means the transactions contemplated in
the Merger Agreement. 
 (u) “Merger Agreement” means the Agreement and Plan of Merger by and among NetSuite,
Inc., Ark Acquisition Corporation, OpenAir, Inc., and the Securityholder Representative and Escrow Agent (each as defined in the Merger Agreement), whereby OpenAir, Inc. will become a wholly owned subsidiary of NetSuite, Inc. 
 (v) “Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act
and the rules and regulations promulgated thereunder. 
 (w) “Parent” means a “parent corporation,”
whether now or hereafter existing, as defined in Section 424(e) of the Code. 
 (x) “Participant” means
the holder of an outstanding Award. 
  

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 (y) “Plan” means this 2008 Restricted Stock Unit Plan. 
 (z) “Restricted Stock Unit” means a bookkeeping entry representing an amount equal to the Fair Market Value of one Share,
granted pursuant to Section 8. Each Restricted Stock Unit represents an unfunded and unsecured obligation of the Company. 
 (aa) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan. 
 (bb) “Section 16(b)” means Section 16(b) of the Exchange Act. 
 (cc) “Service Provider” means an Employee, Director or Consultant. 
 (dd) “Share” means a share of the Common Stock, as adjusted in accordance with Section 14 of the Plan. 

(ee) “Subsidiary” means a “subsidiary corporation”, whether now or hereafter existing, as defined in
Section 424(f) of the Code. 
 3. Stock Subject to the Plan. 
 (a) Stock Subject to the Plan. Subject to the provisions of Section 14 of the Plan, the maximum aggregate
number of Shares that may be issued under the Plan is 219,711 Shares. The Shares may be authorized, but unissued, or reacquired Common Stock. 
 (b) Lapsed Awards. If an Award expires or becomes unexercisable without having been exercised in full, is surrendered pursuant to an Exchange Program, or is forfeited to or repurchased by the Company due to
failure to vest, the forfeited or repurchased Shares, which were subject thereto will become available for future grant or sale under the Plan (unless the Plan has terminated). Shares that have actually been issued under the Plan under any Award
will not be returned to the Plan and will not become available for future distribution under the Plan; provided, however, that if Shares issued pursuant to Awards are repurchased by the Company or are forfeited to the Company, such Shares will
become available for future grant under the Plan. Shares used to pay the exercise price of an Award or to satisfy the tax withholding obligations related to an Award will become available for future grant or sale under the Plan. To the extent an
Award under the Plan is paid out in cash rather than Shares, such cash payment will not result in reducing the number of Shares available for issuance under the Plan. 
 (c) Share Reserve. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as
will be sufficient to satisfy the requirements of the Plan. 
 4. Administration of the Plan. 
 (a) Procedure. 
 (i) Multiple Administrative Bodies. Different Committees with respect to different groups of Service Providers may administer the Plan. 
  

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 (ii) Section 162(m). To the extent that the Administrator determines it to be
desirable to qualify Awards granted hereunder as “performance-based compensation” within the meaning of Section 162(m) of the Code, the Plan will be administered by a Committee of two (2) or more “outside directors”
within the meaning of Section 162(m) of the Code. 
 (iii) Rule 16b-3. To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder will be structured to satisfy the requirements for exemption under Rule 16b-3. 
 (iv) Other Administration. Other than as provided above, the Plan will be administered by (A) the Board or (B) a
Committee, which committee will be constituted to satisfy Applicable Laws. 
 (b) Powers of the Administrator. Subject
to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated by the Board to such Committee, the Administrator will have the authority, in its discretion: 
 (i) to determine the Fair Market Value; 
 (ii) to select the Service Providers to whom Awards may be granted hereunder; 
 (iii) to
determine the number of Shares 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, not inconsistent with the terms of the Plan, of any Award
granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Awards may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Award or the Shares relating thereto, based in each case on such factors as the Administrator will determine; 
 (vi) to determine the terms and conditions of any, and to institute any Exchange Program; 
 (vii) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan; 
 (viii) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign laws; 
 (ix) to modify or amend each Award (subject to
Section 19(c) of the Plan), including but not limited to the discretionary authority to extend the post-termination exercisability period of Awards and to extend the maximum term of an Award; 
  

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 (x) to allow Participants to satisfy withholding tax obligations in such manner as
prescribed in Section 15; 
 (xi) to authorize any person to execute on behalf of the Company any instrument required to
effect the grant of an Award previously granted by the Administrator; 
 (xii) to allow a Participant to defer the receipt of
the payment of cash or the delivery of Shares that would otherwise be due to such Participant under an Award; and 
 (xiii) to
make all other determinations deemed necessary or advisable for administering the Plan. 
 (c) Effect of
Administrator’s Decision. The Administrator’s decisions, determinations and interpretations will be final and binding on all Participants and any other holders of Awards. 
 5. Eligibility. Restricted Stock Units may be granted to Service Providers. 
 6. [Intentionally Left Blank]. 
 7.
[Intentionally Left Blank]. 
 8. Restricted Stock Units. 
 (a) Grant. Restricted Stock Units may be granted at any time and from time to time as determined by the Administrator. After the
Administrator determines that it will grant Restricted Stock Units under the Plan, it will advise the Participant in an Award Agreement of the terms, conditions, and restrictions related to the grant, including the number of Restricted Stock Units.

 (b) Vesting Criteria and Other Terms. The Administrator will set vesting criteria in its discretion, which,
depending on the extent to which the criteria are met, will determine the number of Restricted Stock Units that will be paid out to the Participant. The Administrator may set vesting criteria based upon the achievement of Company-wide, business
unit, or individual goals (including, but not limited to, continued employment), or any other basis determined by the Administrator in its discretion. 
 (c) Earning Restricted Stock Units. Upon meeting the applicable vesting criteria, the Participant will be entitled to receive a payout as determined by the Administrator. Notwithstanding the foregoing, at any
time after the grant of Restricted Stock Units, the Administrator, in its sole discretion, may reduce or waive any vesting criteria that must be met to receive a payout. 
 (d) Form and Timing of Payment. Payment of earned Restricted Stock Units will be made as soon as practicable after the date(s)
determined by the Administrator and set forth in the Award Agreement. The Administrator, in its sole discretion, may only settle earned Restricted Stock Units in cash, Shares, or a combination of both. 
  

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 (e) Cancellation. On the date set forth in the Award Agreement, all unearned
Restricted Stock Units will be forfeited to the Company. 
 9. [Intentionally Left Blank]. 
 10. [Intentionally Left Blank]. 
 11.
[Intentionally Left Blank]. 
 12. Leaves of Absence/Transfer Between Locations. Unless the Administrator provides otherwise, vesting
of Awards granted hereunder will be suspended during any unpaid leave of absence. A Service Provider will not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of
the Company or between the Company, its Parent, or any Subsidiary. 
 13. Transferability of Awards. Unless determined otherwise by
the Administrator, an Award 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 Participant, only
by the Participant. If the Administrator makes an Award transferable, such Award will contain such additional terms and conditions as the Administrator deems appropriate. 
 14. Adjustments; Dissolution or Liquidation; Merger or Change in Control. 
 (a)
Adjustments. In the event that, after the execution of the Merger Agreement, any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, in each case other
than the Merger itself, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan, will adjust the number and class of Shares that may be delivered under the
Plan and/or the number, class, and price of Shares covered by each outstanding Award, the numerical Share limits in Section 3 of the Plan. 
 (b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify each Participant as soon as practicable prior to the effective date of such
proposed transaction. To the extent it has not been previously exercised, an Award will terminate immediately prior to the consummation of such proposed action. 
 (c) Change in Control. In the event of a merger (other than the Merger) or Change in Control, each outstanding Award will be
treated as the Administrator determines, including, without limitation, that each Award be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. The Administrator
will not be required to treat all Awards similarly in the transaction. 
  

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 In the event that the successor corporation does not assume or substitute for the Award, the Participant
will fully vest in and have the right to exercise all of his or her outstanding Awards and all restrictions on Restricted Stock Units will lapse. 
 For the purposes of this subsection (c), an Award will be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the Change in
Control, the consideration (whether stock, cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the payout of a Restricted Stock Unit, for each Share subject to such Award, to be solely common stock of the successor
corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the Change in Control. 
 Notwithstanding anything in this Section 14(c) to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals will not be considered assumed if the Company or its successor modifies
any of such performance goals without the Participant’s consent; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to
invalidate an otherwise valid Award assumption. 
 15. Tax Withholding. 
 (a) Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof), the Company
will have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, local, foreign or other taxes (including the Participant’s FICA obligation) required to
be withheld with respect to such Award (or exercise thereof). 
 (b) Withholding Arrangements. The Administrator, in
its sole discretion and pursuant to such procedures as it may specify from time to time, may permit a Participant to satisfy such tax withholding obligation, in whole or in part by (without limitation) (a) paying cash, (b) electing to have
the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the minimum statutory amount required to be withheld, or (c) delivering to the Company already-owned Shares having a Fair Market Value equal to the
minimum statutory amount required to be withheld. The Fair Market Value of the Shares to be withheld or delivered will be determined as of the date that the taxes are required to be withheld. 
 16. No Effect on Employment or Service. Neither the Plan nor any Award will confer upon a Participant any right with respect to continuing the
Participant’s relationship as a Service Provider with the Company, nor will they interfere in any way with the Participant’s right or the Company’s right to terminate such relationship at any time, with or without cause, to the extent
permitted by Applicable Laws. 
  

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 17. Date of Grant. The date of grant of an Award will be, for all purposes, the date on which the
Administrator makes the determination granting such Award, or such other later date as is determined by the Administrator. Notice of the determination will be provided to each Participant within a reasonable time after the date of such grant.

 18. Term of Plan. Subject to Section 22 of the Plan, the Plan will become effective upon its adoption by the Board. It will
continue in effect for a term of ten (10) years from the date adopted by the Board, unless terminated earlier under Section 19 of the Plan. 
 19. Amendment and Termination of the Plan. 
 (a) Amendment and Termination. The
Board may at any time amend, alter, suspend or terminate the Plan. 
 (b) Stockholder Approval. The Company will obtain
stockholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws. 
 (c)
Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan will impair the rights of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement
must be in writing and signed by the Participant and the Company. Termination of the Plan will not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date
of such termination. 
 20. Conditions Upon Issuance of Shares. 
 (a) Legal Compliance. Shares will not be issued pursuant to the exercise of an Award unless the exercise of such Award and the
issuance and delivery of such Shares will comply with Applicable Laws and will be further subject to the approval of counsel for the Company with respect to such compliance. 
 (b) Investment Representations. 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. 
 21. Inability to Obtain Authority. 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, will relieve the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority will not have been obtained. 
 22. [Intentionally Left Blank]. 
  

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