Support.com 2008 Annual Report Download - page 98

re-nominate you to serve on the Board to be deemed material for such purpose, or (3) a material change in the geographic location of your place of
employment without your written consent, with a relocation of more than fifty (50) miles to be deemed material for purposes of this letter agreement.
(e) The term “Permanent Disability” means your inability to perform the essential functions of your position with or without reasonable
accommodation for a period of 120 consecutive days because of your physical or mental impairment.
(f) The term “Cause” means (a) any intentional unauthorized use or disclosure of any confidential information or trade secrets of the Company that
is materially detrimental to the Company; (b) conviction of, or a plea of “guilty” or “no contest” to, a felony under the laws of the United States or any
State; (c) willful refusal to follow the lawful written instructions of the Board of Directors; (d) any intentional or willful material misconduct or breach of
material Company policy by you that is materially detrimental to the Company; (e) a material breach of your fiduciary duties as an officer of the Company;
or (f) in connection with your hire by the Company, a material misrepresentation by you regarding your background or credentials. In any situation in
which a termination for “Cause” is asserted by the Company, the Company’s Board of Directors shall provide to you in writing its grounds for the belief
that a termination for “Cause” exists, and, in the case of (c) above, you shall have not less than 15 business days to cure such breach.
(g) The term “Separation from Service” means your cessation of Employee status and shall be deemed to occur at such time as the level of the
bona fide services you are to perform in Employee status (or as a consultant or other independent contractor) permanently decreases to a level that is not
more than twenty percent (20%) of the average level of services you rendered in Employee status during the immediately preceding thirty-six (36) months
(or such shorter period for which you may have rendered such service). Any such determination as to Separation from Service, however, shall be made in
accordance with the applicable standards of the Treasury Regulations issued under Code Section 409A. For purposes of determining whether you have
incurred a Separation from Service, you shall be deemed to continue in “Employee” status for so long as you remain in the employ of one or more
members of the Employer Group, subject to the control and direction of the employer entity as to both the work to be performed and the manner and
method of performance. “Employer Group” means the Company and any other corporation or business controlled by, controlling or under common
control with, the Company as determined in accordance with Sections 414(b) and (c) of the Code and the Treasury Regulations thereunder, except that in
applying Sections 1563(a)(1), (2) and (3) for purposes of determining the controlled group of corporations under Section 414(b), the phrase “at least 50
percent” shall be used instead of “at least 80 percent” each place the latter phrase appears in such sections and in applying Section 1.414(c)-2 of the
Treasury Regulations for purposes of determining trades or businesses that are under common control for purposes of Section 414(c), the phrase “at least
50 percent” shall be used instead of “at least 80 percent” each place the latter phrase appears in Section 1.414(c)-2 of the Treasury Regulations. In addition
to the foregoing, a Separation from Service shall not be deemed to have occurred while you are on a sick leave or other bona fide leave of absence if the
period of such leave does not exceed six (6) months or any longer period for which you are provided with a right to reemployment with the Company by
either statute or contract; provided, however, that in the event of a leave of
Source: SUPPORTSOFT INC, 10-K, March 11, 2009