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 Stock
Option Award Agreement (the “Award Agreement”).
I. NOTICE
OF STOCK OPTION GRANT
Participant
Name:
Address:
You
have
been granted an Option to purchase Common Stock of SourceForge, Inc. (the
“Company”), subject to the terms and conditions of the Plan and this Award
Agreement, as follows:
| Grant Number |
_____________________
|
|
Date of Grant
|
_____________________
|
| Vesting Commencement Date | _____________________ |
| Exercise Price per Share | $____________________ |
| Total Number of Shares Granted | _____________________ |
| Total Exercise Price | $____________________ |
| Type of Option: | ___ Incentive Stock Option |
| ___ Nonstatutory Stock Option |
| Term/Expiration Date: | _____________________ |
Vesting
Schedule:
Subject
to any acceleration provisions contained in the Plan or set forth below, this
Option may be exercised, in whole or in part, in accordance with the following
schedule:
[INSERT
VESTING SCHEDULE]
Termination
Period:
This
Option will be exercisable for three (3) months after Participant ceases to
be a
Service Provider, unless such termination is due to Participant’s death or
Disability, in which case this Option will be exercisable for twelve
(12) months after Participant ceases to be Service Provider. Notwithstanding
the
foregoing, in no event may this Option be exercised after the Term/Expiration
Date as provided above and may be subject to earlier termination as provided
in
Section 14(c) of the Plan.
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By
Participant’s signature and the signature of the Company's representative below,
Participant and the Company agree that this Option is granted under and governed
by the terms and conditions of the Plan and this Award Agreement, including
the
Terms and Conditions of Stock Option 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.
EXHIBIT
A
TERMS
AND CONDITIONS OF STOCK OPTION GRANT
1. Grant
of Option. The Company hereby grants to the Participant named in the Notice
of Grant attached as Part I of this Award Agreement (the “Participant”) an
option (the “Option”) to purchase the number of Shares, as set forth in the
Notice of Grant, at the exercise price per Share set forth in the Notice of
Grant (the “Exercise Price”), 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.
If
designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this
Option is intended to qualify as an ISO under Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”). However, if this Option is
intended to be an ISO, to the extent that it exceeds the $100,000 rule of Code
Section 422(d) it will be treated as a Nonstatutory Stock Option (“NSO”).
2. Vesting
Schedule. Except as provided in Section 3, the Option awarded by this Award
Agreement will vest in accordance with the vesting provisions set forth in
the
Notice of Grant. 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.
3. Administrator
Discretion. The Administrator, in its discretion, may accelerate the vesting
of the balance, or some lesser portion of the balance, of the unvested Option
at
any time, subject to the terms of the Plan. If so accelerated, such Option will
be considered as having vested as of the date specified by the
Administrator.
4. Exercise
of Option.
(a) Right
to Exercise.
This
Option may be exercised only within the term set out in the Notice of Grant,
and
may be exercised during such term only in accordance with the Plan and the
terms
of this Award Agreement.
(b) Method
of Exercise.
This
Option is exercisable by delivery of an exercise notice, in the form attached
as
Exhibit
B
(the
“Exercise Notice”) or
in a manner and pursuant to such procedures as the Administrator may
determine,
which
will state the election to exercise the Option, the number of Shares in respect
of which the Option is being exercised (the “Exercised Shares”), and such other
representations and agreements as may be required by the Company pursuant to
the
provisions of the Plan. The Exercise Notice will be completed by Participant
and
delivered to the Company. The Exercise Notice will be accompanied by payment
of
the aggregate Exercise Price as to all Exercised Shares together with any
applicable tax withholding. This Option will be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice accompanied by
such aggregate Exercise Price.
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5. Method
of Payment. Payment of the aggregate Exercise Price will be by any of the
following, or a combination thereof, at the election of Participant.
(a) cash;
(b) check;
(c) consideration
received by the Company under a formal cashless exercise program adopted by
the
Company in connection with the Plan;
or
(d) surrender
of other Shares which have a Fair Market Value on the date of surrender equal
to
the aggregate Exercise Price of the Exercised Shares, provided that accepting
such Shares, in the sole discretion of the Administrator, will not result in
any
adverse accounting consequences to the Company.
▇.▇▇▇
Obligations.
(a) Withholding
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.
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 of
the
Option exercise, Participant acknowledges and agrees that the Company may refuse
to honor the exercise and refuse to deliver Shares if such withholding amounts
are not delivered at the time of exercise.
(b) Notice
of Disqualifying Disposition of ISO Shares.
If the
Option granted to Participant herein is an ISO, and if Participant sells or
otherwise disposes of any of the Shares acquired pursuant to the ISO on or
before the later of (i) the date two (2) years after the Grant Date, or (ii)
the
date one (1) year after the date of exercise, Participant will immediately
notify the Company in writing of such disposition. Participant agrees that
Participant may be subject to income tax withholding by the Company on the
compensation income recognized by Participant.
(c) Code
Section 409A.
Under
Code Section 409A, an option that vests after December 31, 2004 that was granted
with a per Share exercise price that is determined by the Internal Revenue
Service (the “IRS”) to be less than the Fair Market Value of a Share on the date
of grant (a “Discount Option”) may be considered “deferred compensation.” A
Discount Option may result in (i) income recognition by Participant prior to
the
exercise of the option, (ii) an additional twenty percent (20%) federal income
tax, and (iii) potential penalty and interest charges. The Discount Option
may
also result in additional state income, penalty and interest charges to the
Participant. Participant acknowledges that the Company cannot and has not
guaranteed that the IRS will agree that the per Share exercise price of this
Option equals or exceeds the Fair Market Value of a Share on the Date of Grant
in a later examination. Participant agrees that if the IRS determines that
the
Option was granted with a per Share exercise price that was less than the Fair
Market Value of a Share on the date of grant, Participant will be solely
responsible for Participant’s costs related to such a determination;
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7. 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.
8. No
Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE
VESTING OF 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 THE OPTION 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.
9. 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., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, or at such other address as the Company may hereafter designate in
writing.
10. Non-Transferability
of Option. This Option may not be transferred in any manner otherwise than
by will or by the laws of descent or distribution and may be exercised during
the lifetime of Participant only by Participant.
11. 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.
12. 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. 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. Assuming such compliance, for income tax purposes the
Exercised Shares will be considered transferred to Participant on the date
the
Option is exercised with respect to such Exercised Shares.
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13. 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.
14. 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 subject to the Option 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.
15. Electronic
Delivery. The Company may, in its sole discretion, decide to deliver any
documents related to Options
awarded
under the Plan or future Options
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.
16. Captions.
Captions provided herein are for convenience only and are not to serve as a
basis for interpretation or construction of this Award Agreement.
17. 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.
18. 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 Code Section 409A or to otherwise avoid imposition of any additional
tax or income recognition under Section 409A of the Code in connection to this
Option.
19. Amendment,
Suspension or Termination of the Plan. By accepting this Award, Participant
expressly warrants that he or she has received an Option 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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20. 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 Option 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 ▇▇▇▇▇
County, California, or the federal courts for the United States for the Northern
District of California, and no other courts, where this Option is made and/or
to
be performed.
[Remainder
of Page Intentionally Left Blank]
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EXHIBIT
B
2007
EQUITY INCENTIVE PLAN
EXERCISE
NOTICE
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Attention:
[_______]
1. Exercise
of Option.
Effective as of today, ________________, _____, the undersigned (“Purchaser”)
hereby elects to purchase ______________ shares (the “Shares”) of the Common
Stock of SourceForge, Inc. (the “Company”) under and pursuant to the 2007 Equity
Incentive Plan (the “Plan”) and the Stock Option Award Agreement dated ________
(the “Award Agreement”). The purchase price for the Shares will be
$_____________, as required by the Award Agreement.
2. Delivery
of Payment.
Purchaser herewith delivers to the Company the full purchase price of the Shares
and any required tax withholding to be paid in connection with the exercise
of
the Option.
3. Representations
of Purchaser.
Purchaser acknowledges that Purchaser has received, read and understood the
Plan
and the Award Agreement and agrees to abide by and be bound by their terms
and
conditions.
4. Rights
as Stockholder.
Until
the issuance (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company) of the Shares, no right
to vote or receive dividends or any other rights as a stockholder will exist
with respect to the Shares subject to the Option, notwithstanding the exercise
of the Option. The Shares so acquired will be issued to Participant as soon
as
practicable after exercise of the Option. No adjustment will be made for a
dividend or other right for which the record date is prior to the date of
issuance, except as provided in Section 14 of the Plan.
5. Tax
Consultation.
Purchaser understands that Purchaser may suffer adverse tax consequences as
a
result of Purchaser’s purchase or disposition of the Shares. Purchaser
represents that Purchaser has consulted with any tax consultants Purchaser
deems
advisable in connection with the purchase or disposition of the Shares and
that
Purchaser is not relying on the Company for any tax advice.
6. Entire
Agreement; Governing Law.
The
Plan and Award Agreement are incorporated herein by reference. This Exercise
Notice, the Plan and the Award Agreement constitute the entire agreement of
the
parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Purchaser
with
respect to the subject matter hereof, and may not be modified adversely to
the
Purchaser’s interest except by means of a writing signed by the Company and
Purchaser. This agreement is governed by the internal substantive laws, but
not
the choice of law rules, of the State of California.
| Submitted by: | Accepted by: | ||
| PURCHASER | SOURCEFORGE, INC. | ||
|
Signature |
By |
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|
Print Name |
Title
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| Address: | |||
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Date
Received
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