Support.com 2008 Annual Report Download - page 99

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absence due to any medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not
less than six (6) months and that causes you to be unable to perform your duties as an Employee, no Separation from Service shall be deemed to occur
during the first twenty-nine (29) months of such leave. If the period of leave exceeds six (6) months (or twenty-nine (29) months in the event of disability
as indicated above) and you are not provided with a right to reemployment by either statute or contract, then you shall be deemed to have Separated from
Service on the first day immediately following the expiration of the applicable six (6)-month or twenty-nine (29)-month period.
8. Excise Taxes.
(a) In the event it is determined that any payment or distribution of any type to or for your benefit pursuant to this agreement (the “Total
Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest and penalties, are collectively referred to as the “Excise Tax”), then you shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties imposed with respect to
such taxes), including any Excise Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments.
(b) All determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code),
whether a Gross-Up Payment is required, the amount of such Gross-Up Payment, and any amounts relevant to the last sentence of the paragraph above,
shall be made by an independent registered public accounting firm mutually agreed upon by you and the Company (the “Accounting Firm”) and retained
at the Company’s expense. The Accounting Firm shall not have an ongoing audit or consulting relationship with the Company at the time it is selected.
The Accounting Firm shall provide all applicable determinations with respect to any of the Total Payments that become due and payable at the time of the
change in control event (the “Change in Control Determination”), together with detailed supporting calculations regarding the amount of the Excise Tax,
any required Gross-Up Payment and any other relevant matter, both to the Company and you within ten (10) business days after the effective date of the
change in control event or such earlier time as is requested by the Company or you (if you reasonably believe that any of the Total Payments may be
subject to the Excise Tax). In addition, the Accounting Firm shall provide all applicable determinations with respect to any of the Total Payments that
become due and payable at the time of your Separation from Service (the “Separation from Service Determination”), together with detailed supporting
calculations regarding the amount of the Excise Tax, any required Gross-Up Payment and any other relevant matter, both to the Company and you within
ten (10) business days after the date of your Separation from Service. The Change in Control and Separation from Service Determinations made by the
Accounting Firm shall be binding upon the Company and you. The Gross-Up Payment (if any) determined on the basis of the Change in Control
Determination shall be paid to you or on your behalf within five (5) business days after the completion of such Determination or (if later) at the time the
related Excise Tax is remitted to the appropriate tax authorities.
Source: SUPPORTSOFT INC, 10-K, March 11, 2009