Support.com 2008 Annual Report Download - page 104

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09/23/2008
Involuntary Termination within twelve (12) months on or after the effective date of that Change of Control, then 50% of the then-unvested shares subject to your
new hire stock option grant will become vested and exercisable at the time of such Involuntary Termination (as defined below). Notwithstanding anything to the
contrary in the Stock Option Agreement, a “going private” transaction shall not constitute a Change of Control.
Notwithstanding any provision in this letter agreement to the contrary, the following special provisions shall govern the payment date of your cash severance
payment in the event that payment is deemed to constitute an item of deferred compensation under Section 409A:
(i) The severance payment will not be made at any time prior to the date of your Separation from Service, and
(ii) No payments or benefits to which you become entitled under this letter agreement shall be made or paid to you prior to the earlier of (i) the expiration
of the six (6)-month period measured from the date of your Separation from Service with the Company or (ii) the date of your death, if you are deemed at the
time of such Separation from Service to be a “key employee” within the meaning of that term under Code Section 416(i) and such delayed commencement is
otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2). Upon the expiration of the applicable deferral period, all payments
deferred pursuant to this paragraph shall be paid to you in a lump sum.
For purposes of this letter agreement, the following definitions shall be in effect:
“Involuntary Termination” means either: (a) that your employment is terminated by the Company without Cause or (b) that you resign for Good Reason
(as defined below). You may terminate your employment hereunder for Good Reason upon satisfaction of the following requirements: (A) notifying the
Company within ninety (90) days after the occurrence of the act or omission constituting grounds for the Good Reason termination, (B) providing the Company
at least thirty (30) days to correct such act or omission and (C) upon the Company’s failure to take such corrective action within such thirty (30)-day period,
giving the Company written notice of such Good Reason termination within five (5) business days thereafter, with such Good Reason termination to be effective
immediately upon delivery of such notice to the Company. In order to receive any benefits upon termination, (i) the Release must be signed by you and must
become effective within thirty (30) days following your termination date in accordance with applicable law, and (ii) you must return all Company property. An
involuntary termination does not include a termination by reason of your death or Permanent Disability.
“Permanent Disability” means your inability to perform the essential functions of your position with or without reasonable accommodation for a period
of one hundred twenty (120) consecutive days because of your physical or mental impairment.
“Cause” means a determination in the reasonable good faith of the Company that you have: (a) engaged in any act of fraud, embezzlement or dishonesty
or any other act in violation of the law, including but not limited to, the conviction of, or pleading no lo contender to, a felony (except for ordinary traffic
violations); (b) materially breached your fiduciary duty to the Company; (c) unreasonably refused to perform the good faith and lawful instructions of the Chief
Executive Officer (d) engaged in willful misconduct or gross negligence (e) willfully breached the Employment, Confidential Information and Invention
Assignment Agreement; or (f) made any willful unauthorized use or disclosure of confidential information or trade secrets of the Company (or any parent or
subsidiary).
“Good Reason” means (a) your employment duties or responsibilities are materially diminished by the Company without your prior written consent; (b) a
material change in the geographic location of your place of employment without your approval, with a relocation of more than fifty (50) miles to be deemed
material for purposes of this letter agreement; (c) a material breach by the Company of its obligations under the terms of this offer letter; or (d) in connection
2
Source: SUPPORTSOFT INC, 10-K, March 11, 2009