**Exhibit 10.15**

 

**OPENERATECHNOLOGIES, INC.**

 

# **2005 EQUITY INCENTIVE PLAN**

# ** **

**1.****                                      Purposeand Duration**

 

1.1                                 *Purpose.*The purpose of the Openera Technologies, Inc.2005 Equity Incentive Plan is to encourage employees and other persons orentities who, in the opinion of the Board, are in a position to contributesignificantly to the success of the Company and its Affiliates (including,without limitation, Non-Employee Directors, consultants, advisers, independentcontractors and other service providers) to enter into and to maintaincontinuing and long-term relationships with the Company. It is *not* a purpose of the Plan to reward Participants for thecompletion of specific projects or discrete periods of Service which may fallbetween consecutive vesting periods of any Award granted under the Plan.

 

1.2                                 *Effective Date.*The Plan is effective as of the date of itsadoption by the Board.

 

1.3                                 *Expiration Date*. The Plan shall expire ten years from thedate of the adoption of the Plan by the Board. In no event shall any Awards bemade under the Plan after such expiration date, but Awards previously granted may extendbeyond such date.

 

**2.****                                      Definitions**

 

As used in the Plan, thefollowing capitalized words shall have the meanings indicated:

 

“Affiliate” means a “parentcorporation” or “subsidiary corporation” of the Company within the meaning of Section 424(e) orSection 424(f), as the case may be, of the Code, and any otherbusiness venture (including without limitation any joint venture or limitedliability company) in which the Company has a significant interest, asdetermined by the Board.

 

“Award” means,individually or collectively, a grant under the Plan of Options or RestrictedStock, or any other equity-based Award made pursuant to Section 8, below.

 

“Award Agreement” meansthe written agreement setting forth the terms and provisions applicable to anAward granted under the Plan.

 

“Board” means the Boardof Directors of the Company.

 

“Cause” has the meaning assigned to it in Section 9.6.2, below.

 

“Code” means the InternalRevenue Code of 1986, as amended.

 

“Committee” means, ifestablished by the Board to administer the Plan, a Compensation

 

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Committee of the Board.If and when the Common Stock is registered under the Exchange Act, the Boardshall appoint a Compensation Committee of not fewer than two members, each ofwhom shall be a Non-Employee Director and an “outside director” within themeaning of Section 162(m) of the Code, or any successor provision.

 

“Common Stock” means theCompany’s common stock, $0.0001 par value per share.

 

“Company” means OpeneraTechnologies, Inc., a Delaware corporation, or any successor thereto.

 

“Director” means anyindividual who is a member of the Board.

 

“Disability” means “disability,” such term is defined in Section 22(e)(3) ofthe Code.

 

“DisqualifyingDisposition” means any disposition (within the meaning of Section 424(c) ofthe Code) of Shares acquired upon the exercise of an ISO before the later of (a) twoyears after the Participant was granted the ISO or (b) one year after theParticipant acquired the Shares by exercising the ISO.

 

“Exchange Act” means theSecurities Exchange Act of 1934, as amended.

 

“Fair Market Value”means, with respect to a Share as of any date of determination, in thediscretion of the Board, (i) the closing price per Share on such date, asreported in the *Wall Street Journal*, on theprincipal exchange for the Shares or the Nasdaq National Market (or successortrading system), (ii) the average closing price per Share, as reported inthe *Wall Street Journal*, during the 20-dayperiod that ends on such date on the principal exchange for the Shares or theNasdaq National Market (or such successor trading system) or (iii) ifShares are not publicly traded, the fair market value of such Share asdetermined by the Board in accordance with a valuation method approved by theBoard in good faith.

 

“Grant Date” means theeffective date of an Award as specified by the Board and set forth in theapplicable Award Agreement.

 

“Incentive Stock Option”or “ISO” means an option to purchase Shares awarded to a Participant under Section 6of the Plan that is intended to meet the requirements of Section 422 ofthe Code.

 

“Non-Employee Director”means a “non-employee director” as that term is defined in Rule 16b-3promulgated under the Exchange Act, or any successor provision.

 

“Nonqualified StockOption” or “NQO” means an option to purchase Shares awarded to a Participantunder Section 6 of the Plan that is not intended to be an ISO.

 

“Option” means an ISO oran NQO.

 

“Participant” means anindividual or entity selected by the Board to receive an Award under the Plan.

 

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“Plan” means the OpeneraTechnologies, Inc. 2005 Equity Incentive Plan set forth in this documentand as hereafter amended from time to time in accordance with Section 10.2.

 

“Restricted Period” meansthe period of time selected by the Board during which Shares of RestrictedStock are subject to forfeiture and/or restrictions on transferability.

 

“Restricted Stock” meansShares awarded to a Participant under Section 7 of the Plan pursuant to anAward that entitles the Participant to acquire Shares for a purchase price(which may be zero if permissible under applicable law), subject to suchconditions as the Board may determine to be appropriate, including aCompany right during a specified period or periods to repurchase the Shares attheir original purchase price (or to require forfeiture of the Shares if thepurchase price was zero and if permissible under applicable law) uponconditions specified in connection with the Award.

 

“Securities Act” meansthe Securities Act of 1933, as amended.

 

“Service” means theservice of a Participant to the Company or an Affiliate as a common lawemployee, a Director, consultant, adviser, independent contractor or otherservice provider, and includes the continuing relationship of the Participantto the Company or an Affiliate as a Director, consultant, adviser, independentcontractor or other service provider following termination of the Participant’semployment.

 

“Shares” means shares ofthe Company’s Common Stock.

 

“Voting Securities” meanswith respect to any corporation or other entity, securities having the right tovote in an election of the board of directors, or the equivalent of a board ofdirectors, of such corporation or other entity.

 

**3.****                                      Administrationof the Plan**

 

3.1                                 *Administration by the Board*. The Plan shall be administeredby the Board, which shall have the authority to adopt, alter and repeal suchadministrative rules, guidelines and practices governing the operation of thePlan as it shall consider advisable from time to time, to interpret theprovisions of the Plan and any Award and to decide all disputes arising inconnection with the Plan. The Board’s decisions and interpretations shall befinal and binding on all parties. Neither the Company nor any member of theBoard shall be liable for any action or determination relating to the Plan. Inthe event that the Board establishes a Committee, the Plan shall be administeredby the Committee, in which case references in the Plan to the Board shall bereferences to the Committee to the extent the context may so require.

 

3.2                                 *Appointment of a**Committee*. To the extent permitted by applicable law,the Board may delegate any or all of its powers under the Plan to aCommittee. In the event that the Board establishes a Committee,references in the Plan to the “Board” shall be references to the Committee tothe extent of such delegation.

 

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**4.****                                      Eligibilityof Participants**

 

The persons eligible toreceive Awards under the Plan shall be the directors, executive officers,employees, consultants, advisers, independent contractors and other serviceproviders of the Company and its Affiliates who, in the opinion of the Board,are in a position to make a significant contribution to the success of theCompany (or an Affiliate). Participants need not be individuals or employees ofthe Company (or an Affiliate).

 

**5.****                                      StockAvailable for Awards**

 

5.1                                 *Aggregate Number of Shares Available for Awards*. Subject to Section 9.13,Awards may be granted under the Plan in respect of up to 1,033,434 Shares.Shares issued under the Plan may consist in whole or in part ofauthorized but unissued Shares or treasury Shares.

 

5.2                                 *Lapsed, Forfeited or Expired Awards*. If any Award expires oris terminated before exercise or is forfeited for any reason, the Sharessubject to such Award, to the extent of such expiration, termination orforfeiture, shall again be available for award under the Plan.

 

5.3                                 *Maximum**Number of Shares Subjectto any Award*. Subject to Section 9.13, the number of Shares inrespect of which a Participant may receive Awards under the Plan in anyyear shall not exceed 800,000.

 

**6.****                                      StockOptions**

 

6.1                                 *Grant of Options*. Subject to the terms and provisions of thePlan, the Board may award Options and determine the number of Sharessubject to each Option, the exercise price therefor, the term of the Option,and any other conditions and limitations applicable to the exercise of theOption and the holding of any Shares acquired upon exercise of the Option. TheBoard may grant ISOs, NQOs or a combination thereof; *provided,however*, that Participants who are not employees of the Company may notbe granted ISOs. The Company shall have no liability to any Participant, or toany other party, if an Option (or any portion thereof) that is intended to bean ISO is determined not to be an ISO (including, without limitation, due to adetermination that the exercise price per Share of the Option was less than theFair Market Value per Share of the Shares subject to the Option as of the GrantDate).

 

6.2                                 *Exercise Price.*Subject to the provisions of this Section 6,the exercise price for each Option, and the manner of payment thereof, shall bedetermined by the Board in its sole discretion.

 

6.3                                 *Restrictions on Option Transferability and Exercisability.*Exceptas set forth in the applicable Award Agreement, no Option shall be transferableby the Participant other than by will or the laws of descent and distribution,and all Options shall be exercisable, during the Participant’s lifetime, onlyby the Participant. In no event shall ISOs be transferable by the Participantother than by will or the laws of descent and distribution.

 

6.4                                 *Certain Additional Provisions for Incentive Stock Options*

 

6.4.1                        *Exercise Price.*In the case of an ISO, the exercise priceshall be not less

 

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than 100% of the FairMarket Value on the Grant Date of the Shares subject to the Option; *provided, however*, that if on the Grant Date the Participant(together with persons whose stock ownership is attributed to the Participantpursuant to Section 424(d) of the Code) owns stock possessing morethan 10% of the total combined voting power of all classes of stock of theCompany or any Affiliate, the exercise price shall be not less than 110% of theFair Market Value on the Grant Date of the Shares subject to the Option.

 

6.4.2                        *Exercisability*. Subject to Sections 9.3 and 9.4, theaggregate Fair Market Value (determined on the Grant Date(s)) of theShares with respect to which ISOs are exercisable for the first time byany Participant during any calendar year (under all plans of theCompany and its Affiliates) shall not exceed $100,000.

 

6.4.3                        *Eligibility.*ISOs may be granted only to persons whoare employees of the Company or an Affiliate on the Grant Date.

 

6.4.4                        *Expiration*. No ISO may be exercised after theexpiration of ten years from the Grant Date; *provided, however*,that if the Option is granted to a Participant who, together with persons whosestock ownership is attributed to the Participant pursuant to Section 424(d) ofthe Code, owns stock possessing more than 10% of the total combined votingpower of all classes of stock of the Company or any Affiliate, the ISO may notbe exercised after the expiration of five years from the Grant Date.

 

6.4.5                        *Compliance with Section 422 of the Code*. The terms andconditions of ISOs shall be subject to and comply with Section 422 of theCode or any successor provision.

 

6.4.6                        *Notice to Company of Disqualifying Disposition*. EachParticipant who receives an ISO agrees to notify the Company in writing withinten days after the Participant makes a Disqualifying Disposition of any Sharesreceived pursuant to the exercise of the ISO.

 

6.4.7                        *Substitute Options.*Notwithstanding the provisions of Section 6.4.1,in the event that the Company or any Affiliate consummates a transactiondescribed in Section 424(a) of the Code (relating to the acquisitionof property or stock from an unrelated corporation), individuals who becomeemployees or consultants of the Company or any Affiliate on account of suchtransaction may be granted ISOs in substitution for options granted bytheir former employer. The Board, in its sole discretion and consistent with Section 424(a) ofthe Code, shall determine the exercise price of such substitute Options.

 

6.5                                 *NQO Presumption*. An Option granted pursuant to the Planshall be presumed to be a NQO unless expressly designated an ISO in theapplicable Award Agreement.

 

**7.****                                      RestrictedStock**

 

7.1                                 *Grant of Restricted Stock.*The Board may award Sharesof Restricted Stock and determine the purchase price, if any, therefor, theduration of the Restricted Period, if any, the conditions, if any, under whichthe Shares may be forfeited to or repurchased by the Company and any otherterms and conditions of the Awards. The Board may modify or waive anyrestrictions, terms and conditions with respect to any Restricted Stock. Sharesof Restricted Stock may be issued

 

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for such consideration,if any, as is determined by the Board, subject to applicable law.

 

7.2                                 *Transferability.*Except as set forth in the applicable AwardAgreement, Shares of Restricted Stock may not be sold, assigned,transferred, pledged or otherwise encumbered.

 

7.3                                 *Evidence of Award.*Shares of Restricted Stock shall beevidenced in such manner as the Board may determine. Any certificatesissued in respect of Shares of Restricted Stock shall be registered in the nameof the Participant and, unless otherwise determined by the Board, deposited bythe Participant, together with a stock power endorsed in blank, with theCompany (or its designee). At the expiration of the Restricted Period(s), theCompany (or such designee) shall deliver the certificates no longer subject tosuch restrictions to the Participant.

 

7.4                                 *Shareholder Rights.*A Participant shall have all the rightsof a shareholder with respect to Restricted Stock awarded, including voting anddividend rights, unless otherwise provided in the Award Agreement.

 

**8.**                                      **Other Stock-Based Awards**

 

The Board shall have theright to grant other Awards based upon the Common Stock having such terms andconditions as the Board may determine, including, without limitation, thegrant of Shares based upon certain conditions, the grant of securitiesconvertible into Common Stock and the grant of warrants to purchase CommonStock, stock appreciation rights, phantom stock awards or stock units.

 

**9.****                                      GeneralProvisions Applicable to Awards**

 

9.1                                 *Legal and Regulatory Matters.*The delivery of Shares shallbe subject to compliance with (i) applicable federal and state laws andregulations, (ii) if the outstanding Shares are listed at the time on anystock exchange, the listing requirements of such exchange and (iii) theCompany’s counsel’s approval of all other legal matters in connection with theissuance and delivery of the Shares. If the sale of the Shares has not beenregistered under the Securities Act, the Company may require, as acondition to delivery of the Shares, such representations or agreements ascounsel for the Company may consider appropriate to avoid violation ofsuch Act and may require that the certificates evidencing the Shares bearan appropriate legend restricting transfer.

 

9.2                                 *Written Award Agreement.*The terms and provisions of anAward shall be set forth in an Award Agreement approved by the Board anddelivered or made available to the Participant as soon as practicable followingthe Grant Date. If the Award is an Option Award, the Award Agreement shallspecify whether the Option is intended to be an ISO or a NQO.

 

9.3                                 *Determination of Restrictions on the Award.*The vesting,exercisability, payment and other restrictions applicable to an Award (which may include,without limitation, restrictions on transferability or provision for mandatoryresale to the Company) shall be determined by the Board and set forth in theapplicable Award Agreement. Notwithstanding the foregoing, the Board may accelerate(i) the vesting or payment of any Award (including an ISO), (ii) thelapse of restrictions on any Award (including an Award of Restricted Stock) and(iii) the date on which any Option first becomes exercisable.

 

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9.4                                 *Change in Control*. Notwithstanding any other provision ofthe Plan, but subject to the provisions of any particular Award Agreement, inthe event of any Change in Control (as defined below) of the Company, and inanticipation thereof if required by the circumstances, the Board, in its solediscretion (and in addition to or in lieu of any actions permitted to be takenby the Company under the terms of any particular Award Agreement), may, oneither an overall or a Participant by Participant basis, (i) acceleratethe exercisability, prior to the effective date of such Change in Control, ofany outstanding Options (and terminate the restrictions applicable to anyShares of Restricted Stock), (ii) upon written notice, provide that anyoutstanding Options must be exercised, to the extent then exercisable, within aspecified number of days after the date of such notice, at the end of whichperiod such Options shall terminate, (iii) if there is a surviving oracquiring entity, and subject to the consummation of such Change in Control,cause that entity or an affiliate of that entity to grant replacement awardshaving such terms and conditions as the Board determines to be appropriate inits sole discretion, upon which replacement the replaced Options or RestrictedStock shall be terminated or cancelled, as the case may be, (iv) terminateany outstanding Options and make such payments, if any, therefor (or cause thesurviving or acquiring entity to make such payments, if any, therefor) as theBoard determines to be appropriate in its sole discretion (including, withoutlimitation, with respect to only the then exercisable portion of such Optionsbased on the Fair Market Value of the underlying Shares as determined by the Boardin good faith), upon which termination such Options shall immediately cease tohave any further force or effect, (v) repurchase (or cause the survivingor acquiring entity to purchase) any Shares of Restricted Stock for suchamounts, if any, as the Board determines to be appropriate in its solediscretion (including, without limitation, an amount with respect to only thevested portion of such Shares (i.e., the portion that is not then subject toforfeiture or repurchase at a price less than their value), based on the FairMarket Value of such vested portion as determined by the Board in good faith),upon which purchase the holder of such Shares shall surrender such Shares tothe purchaser, or (vi) take any combination (or none) of the foregoingactions. For purposes of this Plan, a “Change in Control” shall mean andinclude any of the following:

 

9.4.1                        a mergeror consolidation of the Company with or into any other corporation or otherentity in which holders of the Company’s Voting Securities immediately prior tosuch merger or consolidation will not continue to hold at least a majority ofthe outstanding Voting Securities of the Company;

 

9.4.2                        a sale,lease, exchange or other transfer (in one transaction or a related series oftransactions, but excluding any merger or consolidation not having an effectdescribed in Section 9.4.1) of all or substantially all of the Company’sassets;

 

9.4.3                        theacquisition by any person or any group of persons, acting together in anytransaction or related series of transactions, of such quantity of theCompany’s Voting Securities as causes such person, or group of persons, to ownbeneficially, directly or indirectly, as of the time immediately after suchtransaction or series of transactions, 50% or more of the combined votingpower of the Voting Securities of the Company other than as a result of (i) anacquisition of securities directly from the Company or (ii) an acquisitionof securities by the Company which by reducing the Voting Securitiesoutstanding increases the proportionate voting power represented by the VotingSecurities owned by any such person or group of persons to

 

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50% or more of thecombined voting power of such Voting Securities; or

 

9.4.4                        theliquidation or dissolution of the Company.

 

9.5                                 *Assumption of Options Upon Certain Events*. In connectionwith a merger or consolidation of an entity with the Company or the acquisitionby the Company of property or stock of an entity, the Board may grantAwards under the Plan in substitution for stock and stock-based awards issuedby such entity or an affiliate thereof. The substitute Awards shall be grantedon such terms and conditions as the Board considers appropriate in thecircumstances. The Awards so granted shall not reduce the number of Shares thatwould otherwise be available for Awards under the Plan.

 

9.6                                 *Termination of Service.*

 

9.6.1                        *Termination of Service in General*. Except as set forth inthe applicable Award Agreement or as otherwise determined by the Board, uponthe termination of the Service of a Participant, the Participant’s Optionsshall expire on the earliest of the following occasions:

 

(i)            inthe case of an ISO, the expiration date determined pursuant to Section 6.4.4;

 

(ii)           subjectto Section 9.6.2, below, the date that is three months after the voluntarytermination of the Participant’s Service or the termination of the Participant’sService by the Company (or by an Affiliate) other than for Cause;

 

(iii)          thedate of the termination of the Participant’s Service by the Company (or by anAffiliate) for Cause;

 

(iv)          thedate one year after the termination of the Participant’s Service by reason ofDisability; or

 

(v)           thedate one year after the termination of the Participant’s Service by reason ofthe Participant’s death.

 

The Participant may exerciseall or any part of the Participant’s Options at any time before theexpiration of such Options under this Section 9.6.1, but only to theextent that such Options had become exercisable before the Participant’sService terminated (or became exercisable as a result of the termination) andthe underlying Shares had vested before the Participant’s Service terminated(or vested as a result of the termination). The balance of such Options shalllapse when the Participant’s Service terminates. In the event that theParticipant dies during the Participant’s Service, or after the termination ofthe Participant’s Service but before the expiration of the Participant’sOptions, all or part of such Options may be exercised (prior toexpiration) by the executors or administrators of the Participant’s estate orby any person who has acquired such Options directly from the Participant bybeneficiary designation, bequest or inheritance, but only to the extent thatsuch Options had become exercisable before the Participant’s Service terminated(or became exercisable as a result of the termination) and the

 

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underlying Shares hadvested before the Participant’s Service terminated (or vested as a result ofthe termination).

 

9.6.2                        *Definition of Cause*. “Cause” means and includes dishonesty,theft, insubordination, substantial malfeasance or non-feasance of duty,unauthorized disclosure of confidential information, breach of a contract withthe Company by an employee or consultant, failure or refusal of an employee orconsultant to perform duties that have been properly assigned to suchemployee or consultant, any violation by an employee or consultant of anycompany policies and conduct substantially prejudicial to the Company or anyAffiliate, as determined by the Board, whose determination shall be final andbinding on the Company and the Participant. Notwithstanding anything to thecontrary in the Plan, if the Board determines after the termination of theParticipant’s Service that the Participant has engaged in conduct constitutingCause (whether before or after the termination of the Participant’s Service),the Participant’s Options shall terminate immediately to the extent not exercisedin accordance with the terms of this Agreement.

 

9.6.3                        *Date of Termination of Service*. The date of the terminationof a Participant’s Service for any reason shall be determined by the Board inits sole discretion. For purposes of the Plan, however, the following eventsshall not be deemed a termination of Service of a Participant: (i) atransfer of Service from the Company to an Affiliate, from an Affiliate to theCompany, or from one Affiliate to another Affiliate; or (ii) a leave ofabsence for military service or sickness, or for any other purpose approved bythe Company, if the Participant’s right to employment is guaranteed either by astatute or by contract or under the policy pursuant to which the leave ofabsence was granted or if the Board otherwise so provides in writing; *provided, however*, that if the Participant fails to resumehis or her active Service to the Company upon the completion of such leave ofabsence, then the Board may, to the extent permitted by applicable law, deemsuch Participant’s Service to have terminated as of the commencement of suchleave of absence. For purposes of the Plan, employees of an Affiliate shall bedeemed to have terminated their Service on the date on which such Affiliateceases to be an Affiliate.

 

9.7                                 *Effect of Termination of Service.*The Board shall have fullauthority to determine and specify in the applicable Award Agreement theeffect, if any, that a Participant’s termination of Service for any reason willhave on the vesting, exercisability, payment or lapse of restrictionsapplicable to an outstanding Award.

 

9.8                                 *Grant of Awards*. Each Award may be made alone, inaddition to or in relation to any other Award. The terms of each Award need notbe identical, and the Board need not treat Participants uniformly.

 

9.9                                 *Settlement of Awards*.

 

*9.9.1**                     General.*NoShares shall be delivered in connection with any Award unless and until (i) therequirements of Section 9.1 of this Plan and of the relevant AwardAgreement have been satisfied and (ii) payment in full of the pricetherefor, if any, is received by the Company. Such payment may be made inwhole or in part in cash or by check or, to the extent permitted by theBoard at or after the Grant Date, by delivery of (i) a promissory notethat (x) bears interest at a rate determined by the Board to be a fair marketrate for the individual Participant at the time the

 

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Shares are issued, (y) isfull recourse (including with respect to the payment of interest) to the Participant,and (z) contains such other terms as may be determined by the Board (and,if required by applicable law, delivery by the Participant of cash or check inan amount equal to the aggregate par value of the Shares purchased), (ii) Shares,including Restricted Stock, valued at their Fair Market Value on the date ofexercise, or (iii) such other lawful consideration as the Board shalldetermine.

 

*9.9.2**                    **Certain Indebtedness to theCompany.*No Option or other Award may be exercised at any timeafter the Board has determined, in good faith, that the Participant is indebtedto the Company or any Affiliate for advances of salary, advances of expenses,recoverable draws or other amounts unless and until either (a) suchindebtedness is satisfied in full or (b) such condition is waived by theBoard. The period during which any Option or other Award may by its termsbe exercised shall not be extended during any period in which the Participantis prohibited from such exercise by the preceding sentence, and the Companyshall have no liability to any Participant, or to any other party, if anyOption or other Award expires unexercised in whole or in part during suchperiod or if any Option that is intended to be an ISO is deemed to be a NQObecause such Option is not exercised within three months after the terminationof the Participant’s employment with the Company or an Affiliate.

 

9.10                           *Withholding Requirements and Arrangements.*

 

9.10.1                  *NQOs.*In the case of any NQO, the Board may require theParticipant to remit to the Company an amount sufficient to satisfy the minimumstatutory federal, state and local withholding tax obligations of the Companywith respect to the exercise of such NQO (or make other arrangementssatisfactory to the Board with regard to such taxes, including withholding fromregular cash compensation, providing other security to the Company, orremitting or foregoing the receipt of Shares having a Fair Market Value on thedate of delivery sufficient to satisfy such minimum statutory obligations) priorto the delivery of any Shares in respect of such NQO.

 

9.10.2                  *ISOs*. In the case of an ISO, if at the time the ISO isexercised the Board determines that under applicable law and regulations theCompany could be liable for the withholding of any federal, state or local taxwith respect to a disposition of the Shares received upon exercise, the Board may requirethe Participant to agree to give such security as the Board deems adequate tomeet the potential liability of the Company for the withholding of tax, and toaugment such security from time to time in any amount reasonably deemednecessary by the Board to preserve the adequacy of such security.

 

9.10.3                  *Restricted Stock*. In the case of any Shares of RestrictedStock that are “substantially vested” (within the meaning of TreasuryRegulations Section 1.83-3(b)) upon issuance, the Board may requirethe Participant to remit to the Company an amount sufficient to satisfy theminimum statutory federal, state or local withholding tax requirements (or makeother arrangements satisfactory to the Company with regard to such taxes,including withholding from regular cash compensation, providing other securityto the Company, or remitting or foregoing the receipt of Shares having a FairMarket Value on the date of delivery sufficient to satisfy such obligations)prior to the issuance of any such Shares. In the case of any Shares ofRestricted Stock that are not “substantially vested” upon issuance, if theBoard determines that under

 

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applicable law andregulations the Company could be liable for the withholding of any federal orstate tax with respect to such Shares, the Board may require theParticipant to remit to the Company an amount sufficient to satisfy any suchpotential liability (or make other arrangements satisfactory to the Companywith respect to such taxes, including withholding from regular cashcompensation, providing other security to the Company, or remitting orforegoing the receipt of Shares having a Fair Market Value on the date ofdelivery sufficient to satisfy such obligations) at the time such Shares ofRestricted Stock are delivered to the Participant, at the time the Participantmakes an election under 83(b) of the Code with respect to such Sharesand/or at the time such Shares become “substantially vested,” and to agree toaugment such security from time to time in any amount reasonably deemednecessary by the Board to preserve the adequacy of such security.

 

9.10.4                  *Retention of Shares*. With respect to any Participant subjectto Section 16(a) of the Exchange Act, any retention of Shares by theCompany to satisfy a tax obligation with respect to such Participant shall bemade in compliance with any applicable requirements of Rule 16b-3(e) orany successor rule under the Exchange Act.

 

9.10.5                  *Offset Against Payments*. The Company may, to the extentpermitted by law, deduct any tax obligations of a Participant from any paymentof any kind otherwise due to the Participant.

 

9.11                           *No Effect on Employment.*The Plan shall not give rise to anyright on the part of any Participant to continue in the employ of theCompany or any Affiliate. The loss of existing or potential profit in Awardsgranted under the Plan shall not constitute an element of damages in the eventof termination of the relationship of a Participant even if the termination isin violation of an obligation of the Company to the Participant by contract orotherwise.

 

9.12                           *No Rights as Shareholder*. Subject to the provisions of thePlan and the applicable Award Agreement, no Participant shall have any rightsas a shareholder with respect to any Shares to be distributed under the Planuntil he or she becomes the holder thereof.

 

9.13                           *Adjustments.*Upon the happening of any of the followingdescribed events, a Participant’s rights with respect to Awards grantedhereunder shall be adjusted as hereinafter provided, unless otherwisespecifically provided in the Award Agreement.

 

9.13.1                  *Stock Splits and Recapitalizations.*In the event the Companyissues any of its Shares as a stock dividend upon or with respect to theShares, or in the event Shares shall be subdivided or combined into a greateror smaller number of Shares, or if, upon a merger or consolidation (exceptthose described in Section 9.4), reorganization, split-up, liquidation,combination, recapitalization or the like of the Company, Shares shall beexchanged for other securities of the Company, securities of another entity,cash or other property, each Participant upon exercising an Option (for thepurchase price to be paid under the Option) shall be entitled to purchase suchnumber of Shares, other securities of the Company, securities of such otherentity, cash or other property as the Participant would have received if theParticipant had been the holder of the Shares with respect to which the Awardis exercised at all times between the Grant Date of the Award and the date ofits exercise, and appropriate adjustments shall be made in the purchase priceper Share. In determining whether any Award granted hereunder has vested,appropriate

 

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adjustments will be madefor distributions and transactions described in this Section 9.13.1.

 

9.13.2                  *Restricted Stock*. If any person owning Restricted Stockreceives new or additional or different shares or securities (“New Securities”)in connection with a corporate transaction or stock dividend described in Section 9.13.1as a result of owning such Restricted Stock, the New Securities shall besubject to all of the conditions and restrictions applicable to the RestrictedStock with respect to which such New Securities were issued.

 

9.13.3                  *Fractional Shares*. No fractional Shares shall be issuedunder the Plan. Any fractional Shares which, but for this Section, would havebeen issued shall be deemed to have been issued and immediately sold to theCompany for their Fair Market Value, and the Participant shall receive from theCompany cash in lieu of such fractional Shares.

 

9.13.4                  *Recapitalization.*The Board may adjust the number ofShares subject to outstanding Awards and the exercise price and the terms ofoutstanding Awards to take into consideration material changes in accountingpractices or principles, extraordinary dividends, acquisitions or dispositions ofstock or property, or any other event if it is determined by the Board thatsuch adjustment is appropriate to avoid distortion in the operation of thePlan.

 

9.13.5                  *Further Adjustment*. Upon the happening of any of theevents described in Sections 9.13.1 or 9.13.4, the class andaggregate number of Shares set forth in Section 5.1 hereof that aresubject to Awards which previously have been or subsequently may begranted under the Plan, and the number of Shares set forth in Section 5.3hereof that may be granted to a Participant in any year shall beappropriately adjusted to reflect the events described in such Sections. TheBoard shall determine the specific adjustments to be made under this Section 9.13.5.

 

9.14                           *Other Transfer Restrictions.*Notwithstanding any otherprovision of the Plan, in order to qualify for the exemption provided by Rule 16b-3under the Exchange Act, and any successor provision, (i) any RestrictedStock offered under the Plan to a Participant subject to Section 16 of theExchange Act (a “Section 16 Participant”) may not be sold for sixmonths after acquisition; (ii) any Shares or other equity securityacquired by a Section 16 Participant upon exercise of an Option may notbe sold for six months after the date of grant of the Option; and (iii) anyOption or other similar right related to an equity security issued under thePlan shall not be transferable except in accordance with the rules under Section 16of the Exchange Act, subject to any other applicable transfer restrictionsunder the Plan or the Award Agreement. The Board shall have no authority totake any action if the authority to take such action, or the taking of suchaction, would disqualify a transaction under the Plan from the exemptionprovided by Rule 16b-3 under the Act, or any successor provision.

 

**10.****                               Amendmentand Termination**

 

10.1                           *Amendment, Suspension, Termination of the Plan.*The Board may amend,suspend or terminate the Plan in whole or in part at any time and for anyreason; *provided, however*, that any amendment ofthe Plan which is necessary to comply with any applicable tax or regulatoryrequirement, including any requirements for exemptive relief under Section 16(b) ofthe Exchange Act or any successor provision, shall be subject to the approvalof the Company’s stockholders. Stockholder approval shall not be required forany other amendment of the Plan. No amendment,

 

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suspension or terminationof the Plan shall materially adversely affect the rights of a Participant,without such Participant’s consent, with respect to any Award previously made.

 

10.2                           *Amendment, Suspension, Termination of an Award.*The Board may modify,amend or terminate any outstanding Award, including, without limitation,substituting therefor another Award of the same or a different type, changingthe date of exercise or realization and converting an ISO to a NQO; *provided, however*, that the Participant’s consent to suchaction shall be required unless the Board determines that the action, takinginto account any related action, would not materially adversely affect theParticipant.

 

**11.****                               Authorizationof Sub-Plans**

 

The Board may from time to time establish one ormore sub-plans under the Plan for purposes of satisfying applicable blue sky,securities or tax laws of various jurisdictions. The Board shall establish suchsub-plans by adopting supplements to this Plan containing (i) suchlimitations on the Board’s discretion under the Plan as the Board deemsnecessary or desirable or (ii) such additional terms and conditions nototherwise inconsistent with the Plan as the Board shall deem necessary ordesirable. All supplements adopted by the Board shall be deemed to be part ofthe Plan, but each supplement shall apply only to Participants within the affectedjurisdiction and the Company shall not be required to provide copies of anysupplement to Participants in any jurisdiction which is not the subject of suchsupplement.

 

**12.****                               LegalConstruction**

 

12.1                           *Captions*. The captions provided herein are included solelyfor convenience of reference and shall not affect the meaning of any of theprovisions of the Plan or serve as a basis for interpretation or constructionof the Plan.

 

12.2                           *Severability*. In the event any provision of the Plan is heldinvalid or illegal for any reason, the illegality or invalidity shall notaffect the remaining provisions of the Plan, and the Plan shall be construedand enforced as if the illegal or invalid provision had not been included.

 

12.3                           *Governing Law.*The Plan and all rights under the Plan shallbe construed in accordance with and governed by the internal laws ofDelaware, without giving effect to the principles of the conflicts of lawsthereof.

 

12.4                           *Variation of Pronouns*. When used herein, pronouns andvariations thereof shall be deemed to refer to the masculine, feminine orneuter or to the singular or plural as the identity of the person or personsreferenced or the context may require.

 

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**OPENERA TECHNOLOGIES, INC.**

 

# **2005 EQUITY INCENTIVE PLAN**

# ** **

**INDIA SUPPLEMENT**

 

Pursuantto Section 11 of the Openera Technologies, Inc. 2005 Equity IncentivePlan (the “Plan”), the Board hereby adopts the following India Supplement inrespect of eligible Participants of its Indian Affiliate, OpeneraCommunications Pvt. Ltd. All other provisions of the Plan, other than asamended/substituted/deleted in this India Supplement, shall continue to beapplicable to the India Supplement. Terms not otherwise defined herein shallhave the meaning ascribed to each such term in the Plan. Notwithstandinganything to the contrary contained herein, terms used in this India Supplement which havenot been defined in the Plan shall have the same meaning as defined inNotification 323-2001, dated October 11, 2001, issued by the CentralBoard of Direct Taxes of India.

 

Section 1of the Plan is hereby deleted in its entirety and replaced with the following:

 

**1.****                                     ****Purpose and Duration**

 

1.1                                 *Purpose.*The purpose of the Openera Technologies, Inc.2005 Equity Incentive Plan is to encourage employees who, in the opinion of theBoard, are in a position to contribute significantly to the success of theCompany and its Affiliates (including, without limitation, Non-EmployeeDirectors,) to enter into and to maintain continuing and long-termrelationships with the Company. A Director of Openera Communications Pvt. Ltd.,who either by himself or through his relatives or through any body corporate,directly or indirectly holds more than 10% of the outstanding common stock ofthe Company shall not be eligible to participate in the Plan. Also, an employeeof Openera Communications Pvt. Ltd. who is a Promoter or who belongs to thePromoter Group shall not be eligible to participate in the Plan. It is *not* a purpose of the Plan to reward Participants for thecompletion of specific projects or discrete periods of Service which may fallbetween consecutive vesting periods of any Award granted under the Plan.

 

1.2                                 *Effective Date.*ThePlan is effective as of the date of its adoption by the Board..

 

1.3                                 *Shareholders’ approval:*  The approval of the shareholders of theCompany and of Openera Communications Pvt. Ltd., to which this Plan shall beapplicable, shall be obtained in a General Meeting of the Shareholders withinsix months of the Effective Date

 

1.4                                 *Expiration Date*. The Plan shall expire ten years from thedate of the adoption of the Plan by the Board. In no event shall any Awards bemade under the Plan after such expiration date, but Awards previously granted may extendbeyond such date.

 

Thedefinitions of “Fair Market Value”, “Participant”, and “Service” in Section 2of the Plan are hereby deleted and replaced with the following:

 

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“FairMarket Value” means, with respect to a Share as of any date of determination,in the discretion of the Board, (i) the closing price per Share on suchdate, as reported in the *Wall Street Journal*,on the principal exchange for the Shares or the Nasdaq National Market (orsuccessor trading system), (ii) the average closing price per Share, asreported in the *Wall Street Journal*, during the20-day period that ends on such date on the principal exchange for the Sharesor the Nasdaq National Market (or such successor trading system) or (iii) ifShares are not publicly traded, the fair market value of such Share asdetermined by the Board in accordance with a valuation method approved by theBoard in good faith. The valuation method adopted shall, however, be based onthe Company’s financial statements for the three financial years immediatelypreceding the date of determination, wherever possible.

 

“Participant”means an individual selected by the Board to receive an Award under the Plan.

 

“Service”means the service of a Participant to the Company or to Openera CommunicationsPvt. Ltd. as a common law employee or a Director,

 

Section 4of the Plan is deleted in its entirety and replaced with the following:

 

**4.****                                     ****Eligibility of Participants**

 

Thepersons eligible to receive Awards under the Plan shall be the directors,executive officers, employees, of the Company and Openera Communications Pvt.Ltd. who, in the opinion of the Board, are in a position to make asignificant contribution to the success of the Company (or OpeneraCommunications Pvt. Ltd..

 

Section 6.1of the Plan is deleted in its entirety and replaced with the following:

 

6.1                                 *Grant of Options*. Subject to the terms and provisions of thePlan, the Board may award Options and determine the number of Sharessubject to each Option, the exercise price therefor, the term of the Option,and any other conditions and limitations applicable to the exercise of theOption and the holding of any Shares acquired upon exercise of the Option. TheBoard may grant ISOs, NQOs or a combination thereof. The Company shallhave no liability to any Participant, or to any other party, if an Option (orany portion thereof) that is intended to be an ISO is determined not to be anISO (including, without limitation, due to a determination that the exerciseprice per Share of the Option was less than the Fair Market Value per Share of theShares subject to the Option as of the Grant Date).

 

Section 6.4.1of the Plan is deleted in its entirety and replaced with the following:

 

6.4.1                        *Exercise Price.*In the case of an ISO, the exercise priceshall be not less than 100% of the Fair Market Value on the Grant Date of theShares subject to the Option. In the case of a NQO, the exercise price shall benot less than 100% of the Fair Market Value on the Grant Date of the Sharessubject to the Option.

 

Section 6.4.4of the Plan is deleted in its entirety and replaced with the following:

 

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6.4.4                        *Expiration*. No ISO may be exercised after theexpiration of ten years from the Grant Date;

 

Section 6.4.7of the Plan is deleted in its entirety and replaced with the following:

 

6.4.7                        *Substitute Options.*Notwithstanding the provisions of Section 6.4.1,in the event that the Company or any Affiliate consummates a transactiondescribed in Section 424(a) of the Code (relating to the acquisitionof property or stock from an unrelated corporation), individuals who becomeemployees of the Company or any Affiliate on account of such transaction may begranted ISOs in substitution for options granted by their former employer. TheBoard, in its sole discretion and consistent with Section 424(a) ofthe Code, shall determine the exercise price of such substitute Options.

 

Section 7.1of the Plan is deleted in its entirety and replaced with the following:

 

7.1                                 *Grant of Restricted Stock.*The Board may award Sharesof Restricted Stock and determine the purchase price, if any, therefor, theduration of the Restricted Period, if any, the conditions, if any, under whichthe Shares may be forfeited to or repurchased by the Company and any otherterms and conditions of the Awards. Inthe case of Shares of Restricted Stock, the exercise price shall be not lessthan 100% of the Fair Market Value on the Grant Date of the Shares ofRestricted Stock subject to the Award. The Board may modify orwaive any restrictions, terms and conditions with respect to any RestrictedStock. Shares of Restricted Stock may be issued for such consideration, ifany, as is determined by the Board, subject to applicable law.

 

Section 10.1.1of the Plan is deleted in its entirety:

 

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