Classmates.com 2010 Annual Report Download - page 306

(iv) any material un-waived breach by the Company of the terms of this Agreement; provided however, that with respect to any of
the clause (i) – (iv) events above, Employee will not be deemed to have resigned for good reason unless (A) Employee provides
written notice to the Company of the existence of the good reason event within ninety (90) days after its initial occurrence, (B)
the Company is provided with thirty (30) days after receipt of such notice in which to cure such good reason event and (C)
Employee effectively terminates Employee’s employment within one hundred eighty (180) days following the occurrence of the
non-cured clause (i) – (iv) event.
“ with cause ” means Employee’s termination of employment by the Company for any of the following reasons:
(i) if Employee is convicted of, or enters a plea of nolo contendere to, a felony or a misdemeanor involving any act of moral
turpitude;
(ii) if Employee commits an act of actual fraud, embezzlement, theft or similar dishonesty against the Company or any of its
subsidiaries;
(iii) if Employee commits any willful misconduct or gross negligence resulting in material harm to the Company or any of its
subsidiaries; or
(iv) if Employee fails, after receipt of detailed written notice and after receiving a period of at least thirty (30) days following such
notice to cure such failure, to use his reasonable good faith efforts to follow the reasonable and lawful direction of the Board of
Directors and to perform his obligations hereunder.
“ without cause ” means any reason not within the scope of the definition of the term “with cause.”
“ separation from service ” means Employee’s cessation of employee status with the Company by reason of Employee’s death,
resignation, dismissal or other termination event and shall be deemed to occur at such time as the level of bona fide services Employee
is to render as such an employee (or as a non-employee consultant) permanently decreases to a level that is not more than twenty
percent (20%) of the average level of services Employee rendered as an employee during the immediately preceding thirty-six (36)
months (or such shorter period of time in which Employee has actually been in employee status with the Company). Any such
determination of Employee’s separation from service shall, however, be made in accordance with the applicable standards of the
Treasury Regulations issued under Section 409A of the Code.
(e) Code Section 409A Deferral Period. Notwithstanding any provision in this Agreement to the contrary (other than Section 7
(f) below), no payment or distribution under this Agreement which constitutes an item of deferred compensation under Section 409A of the Code
and becomes payable by reason of Employee’
s termination of employment with the Company will be made to Employee until Employee incurs a
separation from service (as such term is defined above and determined in accordance with Treasury Regulations issued under Section 409A of
the Code) in connection with such termination of employment. For purposes of this Agreement, each amount to be paid or benefit to be
provided Employee shall be treated as a separate identified payment or benefit for purposes of Section 409A of the Code. In addition, no
payment or benefit which constitutes an item of deferred compensation under Section 409A of the Code and becomes payable by reason of
Employee’s separation from service will be made to Employee prior to the earlier of (i) the first day of the seventh (7th) month measured from
the date of such separation from service or (ii) the date of Employee’s death, if Employee is deemed at the time of such separation from service
to be a “specified employee” (as determined pursuant to Code Section 409A and the Treasury Regulations thereunder) and such delayed
commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2). Upon the expiration
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