SOURCEFORGE, INC.
RESTATED EMPLOYMENT
AGREEMENT
This Restated Employment Agreement (the
“Agreement”) is made and entered into by and between
Caroline Offutt (“Executive”) and SourceForge, Inc.
(the “Company”), effective as of April 9, 2009 (the
“Effective Date”).
WHEREAS, the Company and Executive entered into
an employment agreement dated November 22, 2004 (the “Prior
Employment Agreement”);
WHEREAS, the Company and Executive amended the
Prior Employment Agreement by entering into an amendment to the
Prior Employment Agreement dated December 5, 2005 (the
“Amendment to the Prior Employment Agreement”);
and
WHEREAS, the Company and Executive wish to
restate the terms of Executive’s employment and replace in
its entirety the Prior Employment Agreement and the Amendment to
the Prior Employment Agreement, in order to come into compliance
with Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and any final regulations and official
guidance promulgated thereunder (“Section 409A”), as
set forth below.
NOW THEREFORE, in consideration of the foregoing
and of the respective covenants and agreements set forth herein,
the Company and Executive agree that the Prior Employment Agreement
is restated and replaced in its entirety as follows:
1.
Duties and Scope of Employment .
(a)
Position and Duties . Executive will continue to
serve as Vice President, General Manager. Executive will
continue to render such business and professional services in the
performance of Executive’s duties, consistent with
Executive’s position within the Company, as will reasonably
be assigned by the Company’s Board of Directors (the
“Board”). The Board may modify
Executive’s job title and duties as it deems necessary and
appropriate in light of the Company’s needs and interests
from time to time. The period of Executive’s
employment under this Agreement is referred to herein as the
“Employment Term.”
(b)
Obligations . Executive will continue to
perform Executive’s duties faithfully and to the best of
Executive’s ability and will continue to devote
Executive’s full business efforts and time to the
Company. For the duration of the Employment Term,
Executive agrees not to actively engage in any other employment,
occupation or consulting activity for any direct or indirect
remuneration without the prior approval of the Board.
2.
At-Will Employment . The Company and Executive
acknowledge that Executive’s employment is and will continue
to be at-will, as defined under applicable law. If
Executive’s employment terminates for any reason, including
(without limitation) any termination prior to or following a Change
of Control, Executive will not be entitled to any acceleration of
Award vesting or severance pay based on termination of employment
other than as provided by this Agreement.
(a)
Base Salary . As of the Effective Date, the
Company will pay Executive an annual salary of Two Hundred Thirty
Five Thousand Dollars ($235,000) as compensation for
Executive’s services (the “Base
Salary”). The Base Salary will be paid
periodically in accordance with the Company’s normal payroll
practices and be subject to the usual, required
withholdings. Executive’s salary will be subject
to review and adjustments will be made based upon the
Company’s normal performance review practices.
(b)
Discretionary Bonus . Executive will continue to
be eligible to participate in a variable target compensation plan
with an annual target bonus of up to fifty percent (50%) of
Executive’s Base Salary, less applicable withholdings, upon
achievement of performance objectives to be determined by the Board
in its sole discretion. Executive will continue to be
eligible to participate in the Company’s Named Executive
Officer Bonus Policy and Plan.
(c)
Equity . Executive will continue to be eligible
to receive awards of stock options, restricted stock, restricted
stock units, stock appreciation rights, performance units and
performance shares or other equity awards (“Awards”)
pursuant to any plans or arrangements the Company may have in
effect from time to time. The Board or its committee
will determine in its discretion whether Executive will be granted
any such Awards and the terms of any such Award in accordance with
the terms of any applicable plan or arrangement that may be in
effect from time to time.
4.
Employee Benefits . Executive will continue to be
entitled to participate in the employee benefit plans currently and
hereafter maintained by the Company of general applicability to
other senior executives of the Company. The Company
reserves the right to cancel or change the benefit plans and
programs it offers to its employees at any time.
5.
Vacation . Executive will continue to be entitled
to paid vacation in accordance with the Company’s vacation
policy, with the timing and duration of specific vacations mutually
and reasonably agreed to by the parties hereto. Upon
Executive’s termination of employment, Executive will be
entitled to receive Executive’s accrued but unpaid vacation
through the date of Executive’s termination.
6.
Expenses . The Company will reimburse Executive
for reasonable travel, entertainment or other expenses incurred by
Executive in the furtherance of or in connection with the
performance of Executive’s duties hereunder, in accordance
with the Company’s expense reimbursement policy as in effect
from time to time.
(a)
Termination for other than Cause, Death or Disability Prior to a
Change of Control or after Twelve Months Following a Change of
Control . If prior to a Change of Control or after
twelve (12) months following a Change of Control, the Company (or
any parent or subsidiary of the Company) terminates
Executive’s employment other than for Cause, death or
Disability, then, subject to Section 7(c) below, Executive will
receive the following severance from the Company:
(i)
Severance Payment . Executive will receive: (A)
continuing payments of severance pay (less applicable withholding
taxes) for a period of six (6) months from the date of such
termination equal to the pro-rata portion of Executive’s Base
Salary (as in effect immediately prior to Executive’s
termination) and (B) Executive’s quarterly bonus under the
Company’s Named Executive Officer Bonus Policy and Plan for
the entire quarter in which such termination occurred based on the
achievement of performance goals under such plan and the quarterly
bonus that would have otherwise been earned.
(ii)
Accelerated Vesting; Post-Termination Exercise Period
. If Executive holds unvested Awards then the unvested
portion of each Award that would normally vest over the three (3)
months following termination will immediately vest and become
exercisable. Executive’s outstanding Awards will
remain exercisable for at least ninety (90) days following the date
of such termination or such longer period as prescribed in the
respective stock plan and agreement for each
Award. Notwithstanding the foregoing, in no event may
the Award be exercised after its expiration date as provided in the
respective agreement for each Award.
(iii)
Continued Employee Benefits . Executive will
receive Company-paid coverage for a period of six (6) months for
the cost of continuation coverage for Executive and
Executive’s eligible dependents under the Company’s
Benefit Plans.
(b)
Termination for other than Cause, Death or Disability or
Constructive Termination Within Twelve Months Following a Change of
Control . If within twelve (12) months following a
Change of Control, (i) the Company (or any parent or subsidiary of
the Company) terminates Executive’s employment other than for
Cause, death or Disability, or (ii) upon Executive’s
Constructive Termination with the Company (or any parent or
subsidiary of the Company), then, subject to Section 7(c) below,
Executive will receive the following severance from the
Company:
(i)
Severance Payment . Executive will receive: (A)
continuing payments of severance pay (less applicable withholding
taxes) for a period of twelve (12) months from the date of such
termination equal to the pro-rata portion of Executive’s Base
Salary (as in effect immediately prior to Executive’s
termination) and (B) Executive’s quarterly bonus under the
Company’s Named Executive Officer Bonus Policy and Plan for
the entire quarter in which such termination occurred based on the
achievement of performance goals under such plan and the quarterly
bonus that would have otherwise been earned.
(ii)
Accelerated Vesting . If Executive holds unvested
Awards, then the unvested portion of each Award that would normally
vest over the twelve (12) months following termination will
immediately vest and become exercisable. The Awards will
remain exercisable, to the extent applicable, following the
termination for the period prescribed in the respective stock plan
and agreement for each Award.
(iii)
Continued Employee Benefits . Executive will
receive Company-paid coverage for a period of twelve (12) months
for the cost of continuation coverage for Executive and
Executive’s eligible dependents under the Company’s
Benefit Plans.
(c)
Separation and Release of Claims Agreement . The
receipt of any severance payments or benefits pursuant to this
Agreement is subject to the Executive signing and not revoking a
separation and release of claims agreement in a form reasonably
acceptable to the Company (the “Release”), which must
become effective no later than the 60 th day following the Executive’s termination
of employment (the “Release Deadline”), and if not, the
Executive will forfeit any right to severance payments or
benefits under this Agreement. To become effective, the
Release must be executed by the Executive and any revocation
periods (as required by statute, regulation, or otherwise) must
have expired without the Executive having revoked the
Release. In addition, no severance payments or benefits
will be paid or provided until the Release actually becomes
effective. In the event the Executive’s
termination of employment occurs at a time during the calendar year
where the Release Deadline could occur in the calendar year
following the calendar year in which Executive’s termination
occurs, then any severance payments or benefits under this
Agreement that would be considered Deferred Compensation Separation
Benefits (as defined in Section 7(h)) will be paid on the first
payroll date to occur during the calendar year following the
calendar year in which such termination occurs, or such later time
as required by (i) the payment schedule applicable to each payment
or benefit as set forth in Section 7(a) and 7(b),
(ii) the date the Release becomes effective, or (iii) Section
7(h).
(d)
Timing of Severance Payments . The Company will
pay the severance payments to which Executive is entitled as salary
continuation with the same timing as in effect immediately prior to
Executive’s termination of employment. If
Executive should die before all amounts have been paid, such unpaid
amounts will be paid in a lump sum payment (less any withholding
taxes) to Executive’s designated beneficiary, if living, or
otherwise to the personal representative of Executive’s
estate.
(e)
Voluntary Resignation; Termination due to Death or
Disability . If Executive’s employment with
the Company (or any parent or subsidiary of the Company) terminates
voluntarily by Executive (except upon Constructive Termination
following a Change of Control), or due to Executive’s death
or Disability, then (i) all vesting will terminate immediately with
respect to Executive’s outstanding Awards, (ii) all payments
of compensation by the Company to Executive hereunder will
terminate immediately (except as to amounts already earned through
the date of termination), and (iii) Executive will not be entitled
to receive severance or other benefits except for those benefits
(if any) which do not concern acceleration of Award vesting or
severance pay based on termination of employment as may then be
established under other Company policies or programs, if
any.
(f)
Termination for Cause . If Executive’s
employment with the Company terminates for Cause by the Company (or
any parent or subsidiary of the Company), then (i) all vesting will
terminate immediately with respect to Executive’s outstanding
Awards, (ii) all payments of compensation by the Company to
Executive hereunder will terminate immediately (except as to
amounts already earned as of the date Executive receives written
notification of Executive’s termination for Cause), and (iii)
Executive will not be entitled to receive severance or other
benefits except for those benefits (if any) which do not concern
acceleration of Award vesting or severance pay based on termination
of employment as may then be established under other Company
policies or programs, if any.
(g)
Exclusive Remedy . In the event of a termination
of Executive’s employment with the Company (or any parent or
subsidiary of the Company), the provisions of this Section 7 are
intended to be and are exclusive and in lieu of any other rights or
remedies to which Executive or the Company may otherwise be
entitled, whether at law, tort or contract, in equity, or under
this Agreement. Executive will be entitled to no
severance or other benefits upon termination of employment with
respect to acceleration of Award vesting or severance pay other
than those benefits expressly set forth in this Section
7.
(i) Notwithstanding
anything to the contrary in this Agreement, if Executive is a
“specified employee” within the meaning of
Section 409A at the time of Executive’s
termination, then, if required, the severance and benefits payable
to Executive pursuant to this Agreement (other than due to death),
if any, and any other severance payments or separation benefits
which may be considered deferred compensation under Section 409A
(together, the “Deferred Compensation Separation
Benefits”), which are otherwise due to Executive on or within
the six (6) month period following Executive’s termination
will accrue during such six (6) month period and will become
payable in a lump sum payment on the date six (6) months and one
(1) day following the date of Executive’s termination of
employment or the date of Executive’s death, if
earlier. All subsequent Deferred Compensation Separation
Benefits, if any, will be payable in accordance with the payment
schedule applicable to each payment or benefit.
(ii) Any
amount paid under this Agreement that qualifies as a payment made
as a result of an involuntary separation from service pursuant to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does
not exceed the Section 409A Limit (as defined below) will not
constitute Deferred Compensation Separation Benefits for purposes
of clause (i) above.
(iii) The
foregoing provisions are intended to comply with the requirements
of Section 409A so that none of the severance payments and benefits
to be provided hereunder will be subject to the additional tax
imposed under Section 409A, and any ambiguities herein will be
interpreted
