SOURCEFORGE, INC.
2007
EQUITY INCENTIVE PLAN
Unless
otherwise defined herein, the terms defined in the SourceForge, Inc. 2007 Equity
Incentive Plan (the “Plan”) will have the same defined meanings in this
Restricted Stock Award Agreement (the “Award Agreement”).
I. NOTICE
OF RESTRICTED STOCK GRANT
Participant
Name:
Address:
You
have
been granted the right to receive an Award of Restricted Stock, subject to
the
terms and conditions of the Plan and this Award Agreement, as
follows:
| Grant Number | ____________________ |
| Date of Grant | ____________________ |
| Vesting Commencement Date | ____________________ |
| Total Number of Shares Granted | ____________________ |
Vesting
Schedule:
Subject
to any acceleration provisions contained in the Plan or set forth below, the
Restricted Stock will vest and the Company’s right to reacquire the Restricted
Stock will lapse in accordance with the following schedule:
[INSERT
VESTING SCHEDULE]
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
Restricted Stock is granted under and governed by the terms and conditions
of
the Plan and this Award Agreement, including the Terms and Conditions of
Restricted Stock 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 RESTRICTED STOCK GRANT
1. Grant
of Restricted Stock.
The
Company hereby grants to the individual named in the Notice of Grant attached
as
Part I of this Award Agreement (the “Participant”) under the Plan for past
services and as a separate incentive in connection with his or her services
and
not in lieu of any salary or other compensation for his or her services, an
Award of Shares of Restricted Stock, 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. Escrow
of Shares.
(a) All
Shares of Restricted Stock will, upon execution of this Award Agreement, be
delivered and deposited with an escrow holder designated by the Company (the
“Escrow Holder”). The Shares of Restricted Stock will be held by the Escrow
Holder until such time as the Shares of Restricted Stock vest or the date
Participant ceases to be a Service Provider.
(b) The
Escrow Holder will not be liable for any act it may do or omit to do with
respect to holding the Shares of Restricted Stock in escrow while acting in
good
faith and in the exercise of its judgment.
(c) Upon
Participant’s termination as a Service Provider for any reason, the Escrow
Holder, upon receipt of written notice of such termination, will take all steps
necessary to accomplish the transfer of the unvested Shares of Restricted Stock
to the Company. Participant hereby appoints the Escrow Holder with full power
of
substitution, as Participant's true and lawful attorney-in-fact with irrevocable
power and authority in the name and on behalf of Participant to take any action
and execute all documents and instruments, including, without limitation, stock
powers which may be necessary to transfer the certificate or certificates
evidencing such unvested Shares of Restricted Stock to the Company upon such
termination.
(d) The
Escrow Holder will take all steps necessary to accomplish the transfer of Shares
of Restricted Stock to Participant after they vest following Participant’s
request that the Escrow Holder do so.
(e) Subject
to the terms hereof, Participant will have all the rights of a stockholder
with
respect to the Shares while they are held in escrow, including without
limitation, the right to vote the Shares and to receive any cash dividends
declared thereon.
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(f) In
the
event of 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,
the
Shares of Restricted Stock will be increased, reduced or otherwise changed,
and
by virtue of any such change Participant will in his or her capacity as owner
of
unvested Shares of Restricted Stock be entitled to new or additional or
different shares of stock, cash or securities (other than rights or warrants
to
purchase securities); such new or additional or different shares, cash or
securities will thereupon be considered to be unvested Shares of Restricted
Stock and will be subject to all of the conditions and restrictions which were
applicable to the unvested Shares of Restricted Stock pursuant to this Award
Agreement. If Participant receives rights or warrants with respect to any
unvested Shares of Restricted Stock, such rights or warrants may be held or
exercised by Participant, provided that until such exercise any such rights
or
warrants and after such exercise any shares or other securities acquired by
the
exercise of such rights or warrants will be considered to be unvested Shares
of
Restricted Stock and will be subject to all of the conditions and restrictions
which were applicable to the unvested Shares of Restricted Stock pursuant to
this Award Agreement. The Administrator in its absolute discretion at any time
may accelerate the vesting of all or any portion of such new or additional
shares of stock, cash or securities, rights or warrants to purchase securities
or shares or other securities acquired by the exercise of such rights or
warrants.
(g) The
Company may instruct the transfer agent for its Common Stock to place a legend
on the certificates representing the Restricted Stock or otherwise note its
records as to the restrictions on transfer set forth in this Award
Agreement.
3. Vesting
Schedule.
Except
as provided in Section 4, and subject to Section 5, the Shares of Restricted
Stock awarded by this Award Agreement will vest in accordance with the vesting
provisions set forth in the Notice of Grant attached as Part I of this Award
Agreement. Shares of Restricted Stock 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 Restricted Stock at any
time, subject to the terms of the Plan. If so accelerated, such Restricted
Stock
will be considered as having vested as of the date specified by the
Administrator.
5. Forfeiture
upon Termination of Status as a Service Provider.
Notwithstanding any contrary provision of this Award Agreement, the balance
of
the Shares of Restricted Stock that have not vested at the time of Participant’s
termination as a Service Provider for any reason will be forfeited and
automatically transferred to and reacquired by the Company at no cost to the
Company upon the date of such termination and Participant will have no further
rights thereunder. Participant will not be entitled to a refund of the price
paid for the Shares of Restricted Stock, if any, returned to the Company
pursuant to this Section 5. Participant hereby appoints the Escrow Agent with
full power of substitution, as Participant’s true and lawful attorney-in-fact
with irrevocable power and authority in the name and on behalf of Participant
to
take any action and execute all documents and instruments, including, without
limitation, stock powers which may be necessary to transfer the certificate
or
certificates evidencing such unvested Shares to the Company upon such
termination of service.
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.
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7. Withholding
of Taxes.
Notwithstanding any contrary provision of this Award
Agreement,
no certificate representing the Shares of Restricted Stock may be released
from
the escrow established pursuant to Section 5, 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 will 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 Shares
otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will
permanently forfeit such Shares and the 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 or the Escrow Agent.
Except as provided in Section 2(f), 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.
9. No
Guarantee of Continued Service.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE SHARES OF RESTRICTED
STOCK 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 RESTRICTED STOCK 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.
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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, the unvested Shares subject to
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 any unvested Shares of Restricted Stock subject to 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 Release from Escrow.
The
Company will not be required to issue any certificate or certificates for Shares
hereunder or release such Shares from the escrow established pursuant to Section
2 prior to fulfillment of all the following conditions: (a) the admission
of such Shares to listing on all stock exchanges on which such class of stock
is
then listed; (b) the completion of any registration or other qualification
of such Shares under any state or federal law or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory body, which the Administrator will, in its absolute discretion,
deem
necessary or advisable; (c) the obtaining of any approval or other
clearance from any state or federal governmental agency, which the Administrator
will, in its absolute discretion, determine to be necessary or advisable; and
(d) the lapse of such reasonable period of time following the date of grant
of the Restricted Stock as the Administrator may establish from time to time
for
reasons of administrative convenience.
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
Shares of Restricted Stock 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.
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16. Electronic
Delivery.
The
Company may, in its sole discretion, decide to deliver any documents related
to
the Shares of Restricted
Stock awarded
under the Plan or future Restricted
Stock 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
of the Internal Revenue Code of 1986, as amended (the “Code”) or to otherwise
avoid imposition of any additional tax or income recognition under Section
409A
of the Code in connection to this Award of Restricted Stock.
20. Amendment,
Suspension or Termination of the Plan.
By
accepting this Award, Participant expressly warrants that he or she has received
an Award of Restricted Stock 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.
21. Governing
Law.
This
Award Agreement will 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 Restricted
Stock or
this
Award Agreement, the parties hereby submit to and consent to the jurisdiction
of
the State of California,
and
agree that such litigation will 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 Restricted Stock is made and/or to
be
performed.
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