SOURCEFORGE, INC.
2007
EQUITY INCENTIVE PLAN
PERFORMANCE
SHARE AWARD AGREEMENT
Unless
otherwise defined herein, the terms defined in the 2007 Equity Incentive Plan
(the “Plan”) will have the same defined meanings in this Performance Share Award
Agreement (the “Award Agreement”).
I. NOTICE
OF GRANT OF PERFORMANCE SHARES
Participant
Name:
Address:
You
have
been granted the right to receive Performance Shares, subject to the terms
and
conditions of the Plan and this Award Agreement, as follows:
| Date of Grant | ____________________ |
| Target Number of Performance Shares | [_________________________] |
| Performance Period | [_________________________] |
| Performance Matrix | The number of Performance Shares in which you may vest in accordance with the Vesting Schedule below will depend upon achievement [Insert Description of Performance Goal(s)] and will be determined in accordance with the Performance Matrix, attached hereto as Exhibit B. [Insert Performance Target(s)]. |
Vesting
Schedule:
The
Performance Shares will vest as follows:
[INSERT
VESTING SCHEDULE.]
In
the
event Participant ceases to be a Service Provider for any or no reason before
Participant vests in the Performance Shares, the Performance Shares and
Participant’s right to acquire any Shares hereunder will immediately
terminate.
By
Participant’s signature and the signature of the representative of SourceForge,
Inc. (the “Company”) below, Participant and the Company agree that this Award of
Performance Shares is granted under and governed by the terms and conditions
of
the Plan and this Award Agreement, including the Terms and Conditions of
Performance Share Grant, attached hereto as Exhibit
A,
all of
which are made a part of this document. Participant has reviewed the Plan and
this Award Agreement
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this Award Agreement and fully understands all provisions of the
Plan and Award Agreement. Participant hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Administrator
upon
any questions relating to the Plan and Award Agreement.
Participant further agrees to notify the Company upon any change in the
residence address indicated below.
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| PARTICIPANT: | SOURCEFORGE, INC. | ||
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Title
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EXHIBIT
A
TERMS
AND CONDITIONS OF PERFORMANCE SHARE GRANT
1. Grant.
The
Company hereby grants to the Participant named in the Notice of
Grant attached
as Part I of this Award Agreement
(the “Participant”) under the Plan an Award of Performance Shares, subject to
all of the terms and conditions in this Award Agreement
and the Plan, which is incorporated herein by reference. Subject to Section
19(c) of the Plan, in the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Award Agreement,
the terms and conditions of the Plan will prevail.
2. Company’s
Obligation to Pay.
Each
Performance Share represents the right to receive a Share on the date it vests.
Unless and until the Performance Shares will have vested in the manner set
forth
in Section 3, Participant will have no right to payment of any such
Performance Shares. Prior to actual payment of any vested Performance Shares,
such Performance Share will represent an unsecured obligation of the Company,
payable (if at all) only from the general assets of the Company. Any Performance
Shares that vest in accordance with Sections 3 or 4 will be paid to Participant
(or in the event of Participant’s death, to his or her estate) in whole Shares,
subject to Participant satisfying any applicable tax withholding obligations
as
set forth in Section 7. Subject to the provisions of Section 4, such vested
Performance Shares shall be paid in Shares as
soon
as practicable after vesting, but in each such case within the period ending
no
later than the date that is two and one half (2½) months from the end of the
Company’s tax year that includes the vesting date.
3. Vesting
Schedule.
Except
as provided in Section 4, and subject to Section 5, the Performance Shares
awarded by this Award Agreement will vest in accordance with the vesting
provisions set forth in the Notice of Grant. Performance Shares scheduled
to vest on a certain date or upon the occurrence of a certain condition will
not
vest in Participant in accordance with any of the provisions of this
Award Agreement,
unless Participant will have been continuously a Service Provider from the
Date
of Grant until the date such vesting occurs.
4. Administrator
Discretion.
The
Administrator, in its discretion, may accelerate the vesting of the balance,
or
some lesser portion of the balance, of the unvested Performance Shares at any
time, subject to the terms of the Plan. If so accelerated, such Performance
Shares will be considered as having vested as of the date specified by the
Administrator.
Notwithstanding
anything in the Plan or this Award Agreement to the contrary, if the
vesting
of the balance, or some lesser portion of the balance, of the Performance Shares
is accelerated in connection with Participant’s termination as
a Service Provider (provided
that such termination is a “separation from service” within the meaning of
Section 409A, as determined by the Company),
other
than due to death,
and
if
(x) Participant is a “specified employee” within the meaning of Section 409A at
the time of such termination as a Service Provider and (y) the payment of such
accelerated Performance Shares will result in the imposition of additional
tax
under Section 409A if paid to Participant on or within the six (6) month period
following Participant’s termination as a Service Provider, then the payment of
such accelerated Performance Shares will not be made until the date six (6)
months and one (1) day following the date of Participant’s termination as a
Service Provider,
unless the Participant dies following his or her termination as a Service
Provider, in which case, the Performance Shares will be paid in Shares to the
Participant’s estate as soon as practicable following his or her
death.
It
is the
intent of this Award
Agreement
to comply with the requirements of Section 409A
so that none of the Performance Shares provided under this Award Agreement
or
Shares issuable thereunder will be subject to the additional tax imposed under
Section 409A,
and any
ambiguities herein will be interpreted to so comply.
For
purposes of this Award
Agreement,
“Section 409A” means Section 409A of the Code, and any
proposed, temporary or final Treasury Regulations and Internal Revenue Service
guidance thereunder,
as each
may be amended from time to time.
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5. Forfeiture
upon Termination of Status as a Service Provider.
Notwithstanding any contrary provision of this Award Agreement, the balance
of
the Performance Shares that have not vested as of the time of Participant’s
termination as a Service Provider for any or no reason and Participant’s right
to acquire any Shares hereunder will immediately terminate.
6. Death
of Participant.
Any distribution or delivery to be made to Participant under this Award
Agreement
will, if Participant is then deceased, be made to Participant’s designated
beneficiary, or if no beneficiary survives Participant, the administrator or
executor of Participant’s estate. Any such transferee must furnish the Company
with (a) written notice of his or her status as transferee, and
(b) evidence satisfactory to the Company to establish the validity of the
transfer and compliance with any laws or regulations pertaining to said
transfer.
7. Withholding
of Taxes.
Notwithstanding any contrary provision of this Award Agreement,
no certificate representing the Shares will be issued to Participant, unless
and
until satisfactory arrangements (as determined by the Administrator) will have
been made by Participant with respect to the payment of income, employment
and
other taxes which the Company determines must be withheld with respect to such
Shares. The Administrator, in its sole discretion and pursuant to such
procedures as it may specify from time to time, may permit Participant to
satisfy such tax withholding obligation, in whole or in part (without
limitation) by (a) paying cash, (b) electing to have the Company
withhold otherwise deliverable Shares having a Fair Market Value equal to the
minimum amount required to be withheld, (c) delivering to the Company
already vested and owned Shares having a Fair Market Value equal to the amount
required to be withheld, or (d) selling a sufficient number of such Shares
otherwise deliverable to Participant through such means as the Company may
determine in its sole discretion (whether through a broker or otherwise) equal
to the amount required to be withheld. To
the extent determined appropriate by the Company in its discretion, it shall
have the right (but not the obligation) to satisfy any tax withholding
obligations by reducing the number of Shares otherwise deliverable to
Participant. If Participant fails to make satisfactory arrangements for the
payment of any required tax withholding obligations hereunder at the time any
applicable Performance Shares otherwise are scheduled to vest pursuant to
Sections 3 or 4, Participant will permanently forfeit such Performance Shares
and any right to receive Shares thereunder and the Performance Shares will
be
returned to the Company at no cost to the Company.
8. Rights
as Stockholder.
Neither
Participant nor any person claiming under or through Participant will have
any
of the rights or privileges of a stockholder of the Company in respect of any
Shares deliverable hereunder unless and until certificates representing such
Shares will have been issued, recorded on the records of the Company or its
transfer agents or registrars, and delivered to Participant. After such
issuance, recordation and delivery, Participant will have all the rights of
a
stockholder of the Company with respect to voting such Shares and receipt of
dividends and distributions on such Shares.
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9. No
Guarantee of Continued Service.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE PERFORMANCE SHARES
PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A
SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY
EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED,
BEING GRANTED THIS AWARD OF PERFORMANCE SHARES OR ACQUIRING SHARES HEREUNDER.
PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN
DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL
NOT
INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR
THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE
PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
10. Address
for Notices.
Any
notice to be given to the Company under the terms of this Award Agreement will
be addressed to the Company, in care of its Legal Services at SourceForge,
Inc.,
000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxxxxxx, 00000, or at such
other
address as the Company may hereafter designate in writing.
11. Grant
is Not Transferable.
Except
to the limited extent provided in Section 6, this grant and the rights and
privileges conferred hereby will not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and will
not
be subject to sale under execution, attachment or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this
grant, or any right or privilege conferred hereby, or upon any attempted sale
under any execution, attachment or similar process, this grant and the rights
and privileges conferred hereby immediately will become null and
void.
12. Binding
Agreement.
Subject
to the limitation on the transferability of this grant contained herein, this
Award Agreement
will be binding upon and inure to the benefit of the heirs, legatees, legal
representatives, successors and assigns of the parties hereto.
13. Additional
Conditions to Issuance of Stock.
If at
any time the Company will determine, in its discretion, that the listing,
registration or qualification of the Shares upon any securities exchange or
under any state or federal law, or the consent or approval of any governmental
regulatory authority is necessary or desirable as a condition to the issuance
of
Shares to Participant (or his or her estate), such issuance will not occur
unless and until such listing, registration, qualification, consent or approval
will have been effected or obtained free of any conditions not acceptable to
the
Company. Where
the Company determines that the delivery of the payment of any Shares will
violate federal securities laws or other applicable laws, the Company will
defer
delivery until the earliest date at which the Company reasonably anticipates
that the delivery of Shares will no longer cause such violation. The
Company will make all reasonable efforts to meet the requirements of any such
state or federal law or securities exchange and to obtain any such consent
or
approval of any such governmental authority.
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14. Plan
Governs.
This
Award Agreement is subject to all terms and provisions of the Plan. In the
event
of a conflict between one or more provisions of this Award Agreement and one
or
more provisions of the Plan, the provisions of the Plan will govern. Capitalized
terms used and not defined in this Award Agreement will have the meaning set
forth in the Plan.
15. Administrator
Authority.
The
Administrator will have the power to interpret the Plan and this Award Agreement
and to adopt such rules for the administration, interpretation and application
of the Plan as are consistent therewith and to interpret or revoke any such
rules (including, but not limited to, the determination of whether or not any
Performance Shares have vested). All actions taken and all interpretations
and
determinations made by the Administrator in good faith will be final and binding
upon Participant, the Company and all other interested persons. No member of
the
Administrator will be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or this
Award Agreement.
16. Electronic
Delivery.
The
Company may, in its sole discretion, decide to deliver any documents related
to
Performance
Shares
awarded
under the Plan or future Performance
Shares
that may
be awarded under the Plan by electronic means or request Participant’s consent
to participate in the Plan by electronic means. Participant hereby consents
to
receive such documents by electronic delivery and agrees to participate in
the
Plan through any on-line or electronic system established and maintained by
the
Company or another third party designated by the Company.
17. Captions.
Captions provided herein are for convenience only and are not to serve as a
basis for interpretation or construction of this Award Agreement.
18. Agreement
Severable.
In the
event that any provision in this Award Agreement
will be held invalid or unenforceable, such provision will be severable from,
and such invalidity or unenforceability will not be construed to have any effect
on, the remaining provisions of this Award Agreement.
19. Modifications
to the Agreement.
This
Award Agreement
constitutes the entire understanding of the parties on the subjects covered.
Participant expressly warrants that he or she is not accepting this
Award Agreement
in reliance on any promises, representations, or inducements other than those
contained herein. Modifications to this Award Agreement or the Plan can be
made
only in an express written contract executed by a duly authorized officer of
the
Company. Notwithstanding anything to the contrary in the Plan or this
Award Agreement,
the Company reserves the right to revise this Award Agreement as it deems
necessary or advisable, in its sole discretion and without the consent of
Participant, to comply with Section 409A or to otherwise avoid imposition of
any
additional tax or income recognition under Section 409A in connection to this
Award of Performance Shares.
20. Amendment,
Suspension or Termination of the Plan.
By
accepting this Award, Participant expressly warrants that he or she has received
an Award of Performance Shares under the Plan, and has received, read and
understood a description of the Plan. Participant understands that the Plan
is
discretionary in nature and may be amended, suspended or terminated by the
Company at any time.
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21. Governing
Law.
This
Award Agreement shall be governed by the laws of the State of California,
without giving effect to the conflict of law principles thereof. For purposes
of
litigating any dispute that arises under this Award of Performance
Shares
or this
Award Agreement, the parties hereby submit to and consent to the jurisdiction
of
the State of California,
and
agree that such litigation shall be conducted in the courts of Santa Xxxxx
County, California,
or the
federal courts for the United States for the Northern District of California,
and no other courts, where this Award of Performance Shares is made and/or
to be
performed.
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EXHIBIT
B
PERFORMANCE
MATRIX
[INSERT
PERFORMANCE MATRIX]
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