Employment Agreement- Pickus

Employment Agreement- Cholawsky

 

 

 

 

 

EX-10.2 3 dex102.htm AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOSHUA PICKUS

Exhibit 10.2

 

July 28, 2009

Mr. Josh Pickus

[address]

Dear Josh:

The purpose of this letter is to amend and restate the provisions of your offer letter with support.com, Inc., a Delaware Corporation (the “Company”) as previously amended and restated on December 23, 2008 (the “Offer Letter”).

The Company is pleased to offer to continue your employment with the Company, effective as of July 27, 2009 on the following terms:

1. Position. You will continue to be employed by the Company as President and Chief Executive Officer, reporting only to the Board of Directors (the “Board”). You will be employed at the Company’s headquarters in Redwood City, California. By signing this letter, you confirm to the Company that you have no contractual commitments or other legal obligations that would prohibit you from continuing to perform your duties for the Company.

2. Board Membership. You will continue to serve as a member of the Board. All board members are subject to election and removal by the shareholders of the Company in accordance with the Company’s by-laws and Delaware law.

3. Cash Compensation. Effective July 1, 2009, the Company will pay you a base salary at the rate of $325,000 per year, subject to annual reviews for potential increases at the discretion of the Board of Directors. In addition, you will be eligible to be considered for an incentive bonus for each fiscal year of the Company under the Company’s Executive Incentive Compensation Plan. Effective July 1, 2009, your target incentive is $170,000. Bonuses will be earned based on satisfaction of criteria established by the Company’s Board of Directors. Such criteria shall be based 100% on “management by objective” criteria established and agreed to by you and the Compensation Committee of the Board (the “Compensation Committee”). You may be awarded an incentive bonus in excess of the amount of the target bonus established for you by the Compensation Committee for a particular year based on your performance, as determined in the sole discretion of the Compensation Committee. Any such bonus shall be paid to you within thirty (30) days following the end of the period to which the bonus relates in accordance with the terms of the applicable bonus program; provided that in no event shall any bonus be paid to you earlier than the first day following the end of the period to which the bonus relates or later than March 15 of the year following the year to which the bonus relates. The determinations of the Compensation Committee with respect to your bonus will be final and binding. Your base salary and target bonus shall be reviewed annually by the Compensation Committee.

1900 Seaport Boulevard, 3rd Floor  Redwood City, California 94063

Toll Free: 877-4WEBSPT (877-493-2778)  Local: 650-556-9440  Fax: 650-556-1195


4. Employee Benefits. As a regular employee of the Company, you shall be eligible to receive all employee benefits, including health care (medical, vision, dental, hospital) and welfare insurance (life, long term disability, short term disability), eligibility to participate in the company’s employee stock purchase plan and 401k plan, and vacation (paid time off) of 20 days per annum. You should note that the Company reserves the right to modify compensation and benefits from time to time, as it deems necessary.

5. Reimbursements. You shall be entitled, in accordance with the Company’s reimbursement policies in effect from time to time, to receive reimbursement from the Company for all business expenses incurred by you in the performance of your duties hereunder, provided you furnish the Company with vouchers, receipts and other details of such expenses in the form required by the Company (“Supporting Documentation”). You must submit the Supporting Documentation for each such expense within sixty (60) days after the later of (i) your incurrence of such expense and (ii) your receipt of the invoice for such expense. If such expense qualifies hereunder for reimbursement, then the Corporation shall reimburse you for that expense within thirty (30) days thereafter. In no event shall any such expense be reimbursed after the close of the calendar year following the calendar year in which that expense is incurred.

The following provisions shall be in effect for any reimbursements to which you become entitled under this Agreement, in order to assure that such reimbursements do not create a deferred compensation arrangement subject to Section 409A of the Code:

(i) The amount of reimbursements to which you may become entitled in any one calendar year shall not affect the amount of expenses eligible for reimbursement hereunder in any other calendar year.

(ii) Your right to reimbursement cannot be liquidated or exchanged for any other benefit or payment.

6. Stock Options.

(a) You were previously granted an option to purchase 1,300,000 shares of the Company’s common stock (the “Standard Grant”) pursuant to the Company’s 2000 Omnibus Equity Incentive Plan (the “Plan”) on April 6, 2006. In addition, on such date you were granted two additional stock options, each for 200,000 shares of the Company’s common stock (the “First Additional Grant” and the “Second Additional Grant,” respectively. The terms of those grants are set forth in the applicable stock option agreements evidencing those grants. For the avoidance of doubt, as of the date of this letter, the price threshold for exercisability of the First Additional Grant has been met. Additionally, the Company has amended the price threshold for exercisability with respect to the Second Additional Grant, from $9.00 to $4.50, and accordingly, as of the date of this letter, the Second Additional Grant is and will be exercisable, to the extent vested, following the date as of which the Fair Market Value of the Company’s Common Stock has first equaled or exceeded $4.50 for 20 consecutive trading days. You have received subsequent equity compensation awards (“Follow-On Grants”), and shall be


eligible in the future to receive additional equity compensation awards from time to time in the Compensation Committee’s sole discretion, taking into account performance, overall compensation and such other considerations as the Compensation Committee may deem relevant.

(b) Notwithstanding anything in this agreement, the Plan or the applicable stock option agreements to the contrary, if the Company is subject to a “Change of Control” (for purposes of this Section 6, the term “Change of Control” shall have the meaning assigned to such term in the Plan) before your employment with the Company terminates and you are subject to an Involuntary Termination (as defined in this Offer Letter) within 12 months on or after that Change of Control, then your Standard Grant, First Additional Grant, Second Additional Grant, and all Follow-On Grants will each become 100% vested and exercisable as to all of the shares subject to such options upon such Involuntary Termination (as defined in this Offer Letter). Such consideration shall be in addition to any cash payments to which you may be entitled under the section entitled Severance Pay below.

7. Severance Pay.

(a) If your employment with the Company terminates as a result of an Involuntary Termination prior to a “change in control event” (within the meaning of Treasury Regulation 1.409A-3(i)(5), then, provided you execute and deliver to the Company the Company’s standard General Release and Waiver of Claims Agreement (the “Release”) and that Release becomes effective within thirty (30) days following your termination date in accordance with applicable law, you shall become entitled to receive the following payments as severance pay:

(i) Continued payment of your base salary for a total period of twelve (12) months at the annualized rate in effect for you under Section 3 at the time of your Involuntary Termination. The salary continuation payments shall be made at periodic intervals in accordance with the Company’s payroll practices for salaried employees, beginning on the first pay date within the sixty (60) day period measured from the date you incur a Separation from Service by reason of such termination of employment, that is coincident with or next following the date on which your Release first becomes effective following the expiration of any applicable revocation period. The salary continuation payments to which you become entitled in accordance with this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code, and each such payment that becomes due and payable during the period commencing with the date of your Separation from Service and ending on March 15 of the succeeding calendar year is hereby designated a “Short-Term Deferral Payment” and shall be paid during that period.

(ii) A lump sum cash payment in an amount equal to 50% of your target bonus in effect for the fiscal year in which the Involuntary Termination occurs. Such payment shall be made on the Company’s first pay date within the sixty (60) day period measured from the date you incur a Separation from Service by reason of such termination of employment, that is coincident with or next following the date on which your Release first becomes effective following the expiration of any applicable revocation period.


(iii) Should you timely elect under Code Section 4980B to continue health care coverage under the Company’s group health plan for yourself, and/or your eligible dependents following your Involuntary Termination, then the Company shall provide such continued health care coverage for you and your eligible dependents at its sole cost and expense. Such health care coverage at the Company’s expense shall continue until the earliest of (i) the expiration of the twelve (12)-month period measured from the date of your Involuntary Termination, (ii) the first date you are covered under another employer’s heath benefit program which provides substantially the same level of benefits without exclusion for pre-existing medical conditions and (iii) the date you no longer constitute a “Qualified Beneficiary” (as such term is defined in Section 4980B(g) of the Code).

(b) If your employment with the Company terminates as a result of an Involuntary Termination on or within twelve (12) months after a “change in control event” (within the meaning of Treasury Regulation 1.409A-3(i)(5), then, provided you execute and deliver to the Company the Release and that Release becomes effective within thirty (30) days following your termination date in accordance with applicable law, you shall become entitled to receive the following benefits and payments:

(i) The Company shall pay you a lump sum cash severance payment in an amount equal to your then current annual rate of base salary plus 100% of your target bonus for the fiscal year in which you terminate employment. Such severance payment shall be payable in a single lump sum on the first pay date within the sixty (60) day period measured from the date you incur a Separation from Service by reason of such termination of employment, that is coincident with or next following the date on which your Release first becomes effective following the expiration of any applicable revocation period. In no event, however, shall such lump sum payment be made later than the last day of such sixty (60)-day period on which the Release is so effective, unless a further deferral is required pursuant to Section 9.

(ii) Should you timely elect under Code Section 4980B to continue health care coverage under the Company’s group health plan for yourself, and/or your eligible dependents following your Involuntary Termination, then the Company shall provide such continued health care coverage for you and your eligible dependents at its sole cost and expense. Such health care coverage at the Company’s expense shall continue until the earliest of (i) the expiration of the twelve (12)-month period measured from the date of your Involuntary Termination, (ii) the first date you are covered under another employer’s heath benefit program which provides substantially the same level of benefits without exclusion for pre-existing medical conditions and (iii) the date you no longer constitute a “Qualified Beneficiary” (as such term is defined in Section 4980B(g) of the Code).


(c) The term “Involuntary Termination” means either (a) that your employment is terminated by the Company without Cause (as defined below) 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. (An Involuntary Termination does not include your termination by reason of death or Permanent Disability.)

(d) The term “Good Reason” means: (1) a material reduction in the annual rate of your base salary or target bonus by the Company, without your written consent, (2) your employment duties or responsibilities are materially diminished by the Company without your written consent, with a change in your duties or responsibilities such that (A) you are no longer serving as the Company’s Chief Executive Officer or, following a “change in control event” (within the meaning of Treasury Regulation 1.409A-3(i)(5), you are not serving as the Chief Executive Officer of the parent or successor entity or (B) the failure of the Company to 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 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.

(c) Notwithstanding anything to the contrary in the foregoing, any Gross-Up Payments due you under this section shall be subject to the hold-back provisions of Section 9, to the extent those payments relate to any amounts and benefits provided to you that constitute parachute payments attributable to your Separation from Service. In addition, no Gross-Up Payment shall be made later than the end of the calendar year following the calendar year in which the related taxes are remitted to the appropriate tax authorities, or such other specified time or schedule that may be permitted under Section 409A of the Code. To the extent you may become entitled to any reimbursement of expenses incurred at the direction of the Company in connection with any tax audit or litigation addressing the existence or amount of the Excise Tax, such reimbursement shall be paid to you no later than the later of (i) the close of the calendar year in which the Excise Tax that is the subject of such audit or litigation is paid by or on behalf of you or (ii) the end of the sixty (60)-day period measured from such payment date. If no Excise Tax liability is found to be due as a result of such audit or litigation, the reimbursement shall be paid to you no later than the later of (i) the close of the calendar year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the litigation or (ii) the end of the sixty (60)-day period measured from the date the audit is completed or the date the litigation is so settled or resolved.

(d) Notwithstanding the foregoing, the payments to be made by the Company to you or on your behalf pursuant to this Section shall be capped at, and may in no event exceed, $1,500,000.


9. Section 409A.

(a) Notwithstanding any provision to the contrary in this agreement (other than Section 9(b) below), no payments, benefits or reimbursements to which you become entitled under this agreement (other than continued health care coverage during the applicable period of COBRA coverage) shall be made or paid to the you prior to the earlier of (i) the first business day of the seventh month following the date of your Separation from Service or (ii) the date of your death, if (a) you are deemed at the time of such Separation from Service a “specified employee” within the meaning of that term under Section 409A of the Code, (b) the stock of the Corporation or any successor entity is publicly traded on an established market and (c) such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2). Upon the expiration of the applicable deferral period, all payments deferred pursuant to this Section 9(a) shall be paid in a lump sum to you, and any remaining payments, benefits or reimbursements due under this agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

If you are at any time during the twelve-month period ending on the last day of any calendar year, deemed to be a “key employee” within the meaning of that term under Code Section 416(i), then you shall be deemed to be a specified employee subject to the delayed payment provisions of this Section 9(a) for the period beginning on the April 1 of the following calendar year and ending on the March 31 of the next year thereafter.

(b) The six month holdback set forth in Section 9(a) shall not be applicable to (i) any salary continuation or severance payments that qualify as Short-Term Deferral Payments and (ii) any remaining portion of such payments paid after your Separation from Service to the extent (A) that the dollar amount of those payments does not exceed two (2) times the lesser of (x) your annualized compensation (based on your annual rate of pay for the calendar year preceding the calendar year of your Separation from Service, adjusted to reflect any increase during that calendar year which was expected to continue indefinitely had your Separation from Service not occurred or (y) the maximum amount of compensation that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which your Separation from Service occurs, and (B) such payments are to be made to you no later than the last day of the second calendar year following the calendar year in which the Separation from Service occurs.

(c) To the extent there is any ambiguity as to whether any provision of this agreement would otherwise contravene one or more requirements or limitations of Code Section 409A, such provisions shall be interpreted and applied in a manner that does not result in a violation of the applicable requirements or limitations of Code Section 409A and the Treasury Regulations thereunder.


10. Employment, Confidential Information and Invention Assignment Agreement. As a Company employee, you are expected to abide by the Company’s rules and regulations. You previously signed and are expected to comply with an Employment, Confidential Information and Invention Assignment Agreement (the “Employee NDA”), dated April 6, 2006. The Employee NDA requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company and non-disclosure of proprietary information.

11. Employment Relationship. Employment with the Company is for no specific period of time. Your employment with the Company is “at will,” meaning that either you or the Company may terminate your employment at any time and for any reason, with or without cause, subject to the acceleration of vesting and severance pay and benefits in the case of an Involuntary Termination subject to the terms and conditions set forth in this agreement. Any contrary representations that may have been made to you are superseded by this offer. This is the full and complete agreement between you and the Company on this term regarding your at-will employment relationship. Although your job duties, title, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by you and a member (other than you) of the Board of Directors of the Company.

12. Outside Activities. While you render services to the Company, you agree that you will not engage in any other employment, consulting or other business activity without the prior written consent of the Company. While you render services to the Company, you also will not assist any person or entity in competing with the Company, in preparing to compete with the Company or in hiring any employees or consultants of the Company.

13. Withholding Taxes. All forms of compensation referred to in this letter are subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by law.

14. Entire Agreement. This letter agreement supersedes and replaces any prior representations, understandings or agreements, whether oral, written or implied, between you and the Company regarding your employment with the Company, including the Offer Letter, but does not supersede any other agreements between you and the Company, including but not limited to, the Employee NDA, any restricted stock purchase agreement, restricted stock unit agreement, stock option agreement or other equity award agreement entered into pursuant to the Company’s stock plans, except as expressly provided herein. In case of conflict between any of the terms and conditions of this Agreement and the documents herein referred to, the terms and conditions of this Agreement will control.

15. Arbitration. As provided in the Employee NDA, in the event of any dispute or claim relating to or arising out of our employment relationship, you and the Company agree that all such disputes will be fully and finally resolved by binding arbitration conducted by the American Arbitration Association in San Mateo County, California. However, as also provided in the Employee NDA, we agree that this arbitration provision shall not apply to any disputes or claims relating to or arising out of the misuse or misappropriation of the Company’s trade secrets or proprietary information.

* * * * *


You may indicate your agreement with these terms by signing and dating the enclosed duplicate original of this letter agreement and returning it to me. If you have any questions, please call me.

 

Very truly yours,

SUPPORT.COM, INC.

By:

 

/s/    Anne-Marie Eileraas

 

Anne-Marie Eileraas

 

SVP, General Counsel and Secretary

 

I have read and accept this employment offer:

/s/    Josh Pickus

Signature of Josh Pickus

Dated: July 30, 2009

 

 

 

 

 

EX-10.01 2 offerletter.htm EMPLOYMENT OFFER LETTER

Exhibit 10.1

 

May 8, 2014

 

VIA EMAIL/ORIGINAL MAILED

 

Elizabeth M. Cholawsky

Santa Barbara, California

 

Dear Elizabeth,

 

On behalf of Support.com, Inc., a Delaware corporation (“the Company”), we are pleased to offer you the position of President and Chief Executive Officer, reporting to the Company’s Board of Directors (“Board”).  You will be assigned to our headquarters office at the address listed below. This offer is contingent upon the completion of background checks to the Company’s satisfaction as required by our internal procedures and regulatory requirements.  If you timely accept this offer, then subject to the contingent matters herein your start date is Friday, May 16, 2014 (“Start Date”).

 

The offer will include an annual equivalent base salary of three hundred sixty thousand dollars ($360,000.00). The base salary will be paid bi-weekly in accordance with the Company’s normal payroll procedures. 

 

You will also be eligible for bonus compensation under the Company’s Executive Incentive Compensation Plan (“Incentive Plan”).  Your maximum annual bonus opportunity under the Incentive Plan will be sixty-five percent (65%) of your annual base salary (not including overachievement potential), for an annual equivalent On Target Earnings (“OTE”) of base salary plus Incentive Plan opportunity of five hundred ninety-four thousand dollars ($594,000.00).  

 

The Incentive Plan has both a corporate performance component and an individual Management by Objectives (“MBO”) component as determined by the Compensation Committee of the Board in its sole discretion.   Any such bonus shall be paid following the close of the period when results are approved by the Compensation Committee and reported by the Company in accordance with its policies and procedures; provided that in no event will any such bonus be paid earlier than the first day following the end of the period to which the bonus relates, or later than March 15 of the year following the year to which the bonus relates.  To receive a bonus payment, you must be employed with the Company through the end of the period to which the bonus relates, currently based on calendar quarters.

 

On the condition that you accept this offer, your employment with the Company commences on the Start Date above, and all eligibility and background checks are completed satisfactorily, then, subject to the terms and conditions of the Company’s selected equity award plan (the “Stock Plan”) and the Company’s standard grant terms and conditions (contained in the applicable agreement), the Compensation Committee has approved grants, effective on your Start Date (the “Grant Date” for purposes of the grants) consisting of:

 

(i) an award of restricted stock units (“RSUs”) in the amount of two hundred eighteen thousand seven hundred fifty-two (218,752) shares of Company common stock vesting over four (4) years from the Grant Date in equal annual vesting tranches with 25% becoming vested on each of the first four (4) anniversaries of the Grant Date subject to continuous service; and

 

(ii) an award of performance-based stock options to purchase seven hundred fifty thousand (750,000) shares of the Company’s common stock that will vest over four (4) years with 25% becoming vested on the first  anniversary of the Grant Date and 1/48th becoming vested each month thereafter subject to continuous service, in accordance with the Company’s standard policies; the exercise price per share for these option grants will be set at the fair market value as defined in the Stock Plan (“FMV”) of the Company’s common stock on the Grant Date.  The performance-based stock options for 750,000 shares will be divided into three grants with a First Option Grant consisting of 150,000 option shares, a Second Option Grant consisting of 300,000 option shares, and a Third Option Grant consisting of 300,000 option shares (collectively the First, Second and Third Option Grants are referred to as the “Performance-Based Options”).  Notwithstanding the foregoing and as a condition of the Performance-Based Options, following performance targets and conditions (“Performance Targets”) apply:

 

 

(1)  

the First Option Grant shall only be exercisable, to the extent vested, following the date as of which the FMV of the Company’s common stock has first equaled or exceeded four dollars ($4.00) for twenty (20) consecutive trading days; and

 

(2)  

the Second Option Grant shall only be exercisable, to the extent vested, following the date as of which the FMV of the Company’s common stock has first equaled or exceeded six dollars and twenty-five cents ($6.25) for twenty (20) consecutive trading days; and

 

(3)  

the Third Option Grant shall only be exercisable, to the extent vested, following the date as of which the FMV of the Company’s common stock has first equaled or exceeded nine dollars and seventy-five cents ($9.75) for twenty (20) consecutive trading days.

 

 

 

In the event one or more Performance Target above is not met prior to a Change of Control, but a Change of Control occurs in a transaction in which our stockholders are all offered and receive a price per share for outstanding shares that equals or exceeds a Performance Target price as listed above, then, notwithstanding the absence of twenty (20) consecutive trading days at or above such Performance Target, it shall be deemed achieved for the purposes of these Performance-Based Options.

 
 

The Committee makes these grants with the Company’s standard executive “double-trigger” Change of Control acceleration provisions that can accelerate 100% of unvested/unreleased shares/options or other equity grants in the event of a Change of Control, as defined in our Stock Plan, if an Involuntary Termination (as defined in the Addendum attached hereto) occurs within one year of such Change of Control, PROVIDED, however, that notwithstanding any other provision of the Addendum or Stock Plan, the Performance-Base Options will be eligible for acceleration only if and to the extent the applicable Performance Targets have been met prior to the Change of Control or achieved as part of the Change of Control as described in the paragraph above.  

 

Pursuant to the charter of the Compensation Committee, your performance and compensation terms will be reviewed at least annually.

 

You acknowledge and that compensation you receive from the Company may be subject by law to certain recoupment (“clawback”) requirements applicable to public companies.

 

As a Company employee, you will also be eligible to receive employee benefits under the terms of the Company’s standard employee benefits plans, which currently include health care (medical, vision, prescription drug, dental, hospital) and life and disability insurance (life, accidental death and dismemberment, long term disability, short term disability), 12 public holidays in accordance with the Company’s published schedule, other paid time off (“PTO”) up to twenty (20) days per year as approved, etc.  You should note that the Company reserves the right to modify all compensation and benefits from time to time, as it deems prudent and in the best interests of the Company.

 

You are also eligible for severance benefits as described in the attached Addendum.

 

In lieu of providing relocation assistance, and assuming you accept this offer and start work on or about the Start Date specified above, the Company will pay to you on or before May 30, 2014 a “Sign-On Bonus” of forty thousand dollars ($40,000), less applicable payroll withholding amounts.  In addition, the Company will also reimburse your reasonable out-of-pocket work-related air travel expenses from Santa Barbara to the San Francisco Bay Area while your relocation is pending for a period not to exceed six (6) months, after which you are expected to have completed your relocation here.  Further, the Company will reimburse your reasonable lodging expenses and meals in relation to such travel but only from your Start Date through the end of May 2014.  After that it is expected you will have established temporary housing on or before June 1, 2014 which is not reimbursable, but which you may choose to fund using part of the proceeds of the Sign-On Bonus.

 

You should be aware that your employment with the Company is for no specified period and constitutes at will employment.  As a result, you are free to resign at any time, for any reason or for no reason.  Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause.

 

Your employment with us is contingent upon and at all times subject to your eligibility for employment as our President and CEO under state and federal law. Without limiting the foregoing, for purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States.  Such documentation must be provided to us during your orientation period (schedule to be confirmed), or our employment relationship with you may be terminated.  Similarly, for the purposes of state law, because the Company is a registered “Alarm Company” in California with the Bureau of Security and Investigative Services (“BSIS”) as required by one or more program contracts, you will be required to provide to the Company documentary evidence of your identity and eligibility to serve as an officer of a registered Alarm Company.  Your employment with us is also contingent upon completion and verification, to the Company’s satisfaction, of full background checks as required by our internal procedures.

 

You agree that, during the term of your employment with the Company, you will not actively engage in any other employment, occupation, consulting or other business directly or indirectly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company.

 

As a Company employee, you will be expected to abide by the Company’s obligations, policies and procedures at all times. You will also be expected to sign and comply with a Confidential Information and Invention Assignment Agreement (the “CIIA”) that requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company, non-solicitation of our employees, and non-disclosure of proprietary information.  Your employment will be contingent upon and not be deemed effective until you have executed and returned the CIIA to the Company and all eligibility and background checks have been completed to the Company’s satisfaction.

 

As provided in the Addendum hereto, in the event of any dispute or claim relating to or arising out of our employment relationship, you and the Company agree that all such disputes shall be fully and finally resolved by binding arbitration in Redwood City, California (or another mutually agreed upon location).  The Company agrees to pay the fees and costs of the arbitrator.   However, as also provided in the Addendum, we agree that this arbitration provision shall not apply to any disputes or claims relating to or arising out of the misuse or misappropriation of the other party’s intellectual property or proprietary information.

 

To indicate your acceptance of the Company’s offer, please sign and date this letter before Thursday, May 8, 2014 by 5 p.m. Pacific Time and return it to my attention by email or fax using the contact information below.  

 

This letter, along with the addendum and attachment hereto, equity grant agreements to be issued, and the CIIA, sets forth the terms of your employment with the Company (“Employment Agreement”) and supersedes any prior representations or  agreements, whether written or oral.  This Employment Agreement may not be modified or amended except by a written agreement, approved by the Compensation Committee of the Board, and signed by a designated representative of the Company and you.

  

We are excited to have you join Support.com, and we look forward to working with you.

 

Sincerely,

 

Support.com, Inc.

 

 

 

By Jim Stephens

Board Chairman and Interim Chief Executive Officer 

 

 

 

By signing, I hereby accept, acknowledge and agree to the terms and conditions as stated above in this Offer Letter including the attached Addendum incorporated herein by reference.

 

On this day of May ___, 2014

 

                                                 _____________________________________
                                                 Elizabeth M. Cholawsky

 

 

 

 


 


 

OFFER LETTER ADDENDUM

 

Severance Provisions; Agreement to Arbitrate

 

 

On behalf of Support.com, Inc., a Delaware Corporation (“the Company”), we are pleased to offer you this addendum (“Addendum”) to your employment Offer Letter with the Company (collectively the Offer Letter and this Addendum are referred to herein as the “Agreement”).

 

This offer is intended to comply with the requirements of new Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”), as applicable, but the Company does not guarantee the tax treatment associated with the terms set forth in this offer and by signing this offer you acknowledge and agree that you had an opportunity to consult counsel of your choice.  The terms of this Addendum when accepted by all parties by signing below supplement the Offer Letter by adding the following provisions:

 

Severance

 

If your employment with the Company terminates as a result of an Involuntary Termination and you execute and deliver to the Company the Company’s standard Release Agreement attached hereto as Attachment A (the “Release”) and that Release becomes effective and irrevocable within sixty (60) days following your termination date in accordance with applicable law, then you will become entitled to receive the following benefits:

 

(a)           On the first payroll date within the sixty (60) day period following the date of your Involuntary Termination on which the Release is effective, the Company shall pay to you a lump-sum payment equal to the sum of an amount equal to twelve (12) months of your base salary (at the rate in effect at the time of your termination), less applicable withholdings; and

 

(b)           Should you timely elect under Code Section 4980B to continue health care coverage under the Company’s group health plan for yourself, and/or your spouse and your eligible dependents following your Involuntary Termination, then the Company shall provide such continued health care coverage for you and your spouse and other eligible dependents at its sole cost and expense; such health care coverage at the Company’s expense shall continue until the earlier of (i) the expiration of the twelve (12) month period measured from the date of your Involuntary Termination and (ii) the first date you are covered under another employer’s heath benefit program which provides substantially the same level of benefits without exclusion for pre-existing medical conditions.  For purposes of the foregoing, any Company payments for your continued health coverage will be treated as taxable compensation to the extent necessary to preclude a violation of Section 105(h) of the Code.  Additionally, if the Company determines at any time that it cannot make payments towards your health coverage as contemplated in this paragraph without violating applicable law (including, without limitation, Section 2716 of the Public Health Services Act), the Company will cease making payments for such coverage and will thereafter pay you a monthly taxable payment in a gross amount equal to the monthly cost for you to continue your coverage pursuant to Code Section 4980B as of your date of termination (for yourself, and/or your spouse and your eligible dependents, as applicable), with the monthly payments to cease at the end of the twelve (12) month period measured from the date of your Involuntary Termination regardless of whether you continue health care coverage through a Company plan or whether you receive other coverage.

 

 

Notwithstanding any provision in this 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 be paid to you on the 60th day following your Separation from Service (subject to your timely execution and effectiveness of the Release), and

 

(ii)  Notwithstanding clause (i) above, no payments or benefits to which you become entitled under this letter agreement that constitute a deferral of compensation within the meaning of Section 409A 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 on the next scheduled payroll date.

 

Each payment under this Agreement is intended to be a “separate payment” and not one of a series of payments for purposes of Section 409A.

 

Agreement to Arbitrate

 

a. Mutual agreement to arbitrate and waive rights to trial by judge or jury.  In the event of any future dispute, controversy or claim that either party may have against the other, including the Company’s parent, subsidiaries, or affiliates or any of their officers, directors, shareholders, representatives, attorneys, agents, or assigns in their capacity as such or otherwise, arising from or relating to this Agreement or the CIIA,  its breach, any matter addressed by this Agreement or the CIIA, and/or my employment with the Company through my Separation Date, the Company and I agree to resolve any such dispute (collectively, the “Claims”) by arbitration in accordance with this Agreement.  Notwithstanding the foregoing, the parties agree that this “Agreement to Arbitrate” in this Addendum shall not apply to any disputes or claims relating to or arising out of the misuse or misappropriation of the other party’s intellectual property or proprietary information. In the event of any conflict between this “Agreement to Arbitrate” on the one hand, and any conflicting terms in the Offer Letter or CIIA, this “Agreement to Arbitrate” provision shall govern and control.

 

The Claims covered by this Agreement include, without limitation, claims arising out of contract law, tort law, common law, wrongful discharge law, privacy rights, statutory protections, constitutional protections, wage and hour law, California Labor Code protections, the California Fair Employment and Housing Act (which includes claims for discrimination or harassment on the basis of age, race, color, ancestry, national origin, disability, medical condition, marital status, religious creed, sex, pregnancy, gender, and sexual orientation), any similar state discrimination law, the California Family Rights Act, the federal Family and Medical Leave Act, the federal Civil Rights Acts of 1964 and 1991, as amended, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, claims for benefits (except when a benefit or pension plan specifies that its claims procedures shall culminate in an arbitration procedure different from this one), and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance.

 

I acknowledge that any Claims I may have for workers’ compensation, state unemployment compensation benefits and/or state disability insurance are not covered by this Agreement.

 

I understand that, by this Agreement, the parties hereto are waiving their rights to have a Claim adjudicated by a court or jury.

 

b. Arbitration in accordance with JAMS Rules.  Except as otherwise provided herein, arbitration shall be in accordance with the then-current JAMS Employment Arbitration Rules and Procedures before a single neutral arbitrator who is selected in accordance with the Rules. The arbitration shall take place in a mutually agreed location. The arbitrator shall apply the substantive law of California, or federal law, or both, as applicable to the Claim asserted.  Each party shall have the right to take written discovery and depositions as provided for under the California Code of Civil Procedure, as well as to subpoena witnesses and documents for discovery and for arbitration. Each party shall be entitled to all types of remedies and relief otherwise available in court.

 

The arbitrator shall have the exclusive authority to resolve any dispute relating to the formation, interpretation, applicability, or enforceability of this Agreement, including, without limitation, any Claim that all or any part of this Agreement is void or voidable. The arbitrator’s decision shall be a reasoned decision in writing, revealing the essential findings and conclusions forming the basis of the award, and shall be final and binding on the parties.

 

c.           Costs and Fees.  If I allege a Claim constituting a violation of a statute relating to employment, including, without limitation, the California Fair Employment and Housing Act (or similar state statute), the Civil Rights Acts of 1964 and 1991, the Age Discrimination in Employment Act, or the Americans with Disabilities Act, the Company will advance all costs of the arbitration that would not be incurred by the parties if the dispute were litigated in court, namely, the fees of the arbitrator and any arbitration association administrative fees and similar charges.

 

Except as set forth above, each party shall pay for its own costs, and attorney fees, if any. However, if any party prevails in a statutory Claim that affords the prevailing party attorney fees, the arbitrator may award reasonable attorney fees to the prevailing party in addition to any and all other remedies afforded by the relevant statute.

 

d.           Exclusive Forum.  Arbitration as described herein will be the exclusive forum for any Claims under the Employment Agreement.  The arbitration decision shall be final, conclusive and binding on both parties and any arbitration award or decision may be entered in any court having jurisdiction. The Parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award. The parties further agree that the prevailing party in any such proceeding shall be awarded reasonable attorneys' fees and costs.

 

Definitions

 

For purposes of this Addendum, 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), but, for the avoidance of doubt, does not include a situation where you are deemed ineligible for the position offered under state or federal law or our internal procedures (i.e. background checks) as described in the Offer Letter.  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/irrevocable within sixty (60) 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 that could cause harm to the operations or reputation of the Company; (b) materially breached your fiduciary duty to the Company; (c) unreasonably refused to perform the good faith and lawful instructions of your supervisor(s) (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).  Further, “Cause” also includes a determination no later than sixty (60) days from your Start Date that you are not eligible for the position offered under state or federal law or our internal procedures (i.e. background checks) as described in the Offer Letter.

 

“Change of Control” has the meaning ascribed to such term in the Company’s Stock Plan selected for your equity awards.

 

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 (currently to be Redwood City, California) without your approval, with a relocation of more than fifty (50) miles to be deemed material for purposes of this addendum; (c) a material uncured breach by the Company of its obligations under the terms of this Offer Letter; or (d) a material reduction in the annual rate of your base salary or target bonus opportunity by the Company, without your written consent,

 

“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 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 Section 409A as determined by the Company.

 

 

 

ATTACHMENT A

TO OFFER LETTER ADDENDUM

 

SUPPORT.COM RELEASE TERMS

 

General Release.  I, ELIZABETH M. CHOLAWSKY, on behalf of myself, my heirs, representatives and assigns, I hereby fully and forever release and discharge Support.com, Inc. (the “Company”) as well as its past and present affiliates, subsidiaries, agents, related entities, officers, directors, shareholders, employees, attorneys, insurers, predecessors, successors, representatives, heirs and assigns (collectively, “Releasees”), from any and all claims, causes of action, suits, debts, and demands of any and every kind, nature and character, presently known and unknown, arising from or relating to any act or omission occurring prior to the date I sign this Agreement (collectively, “Claims”).

 

Examples of Claims.  The Claims I am releasing and discharging include, but are not limited to, Claims arising from and related to my recruitment, hiring, employment and termination of employment with the Company, including Claims under federal, state and local non-discrimination laws such as Title VII of the Civil Rights Act of 1964 as amended, the Civil Rights Act of 1866, the Civil Rights Act of 1991, the Employee Retirement and Income Security Act of 1974 as amended (“ERISA”), the Americans with Disabilities Act, the Age Discrimination in Employment Act of 1967 as amended (“ADEA”), the Fair Employment and Housing Act and under any and all other applicable federal, state and local laws;  Claims for breach of express and implied contractual obligations, misrepresentation, infliction of emotional distress, violation of public policy, defamation, monetary damages and any other form of personal relief, attorneys’ fees and costs.

 

Known & Unknown Claims.  In furtherance of my intent to fully and forever release and discharge the Releasees from any and all Claims, “presently known and unknown,” I am waiving and releasing all rights and benefits afforded to me, if any, under Section 1542 of the California Civil Code, or under a comparable state law applicable to me.  I understand that California Civil Code Section 1542 provides as follows (parentheticals added):

 

A general release does not extend to claims which the creditor (e.g., me) does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor (e.g., the Company).

 

I understand that this means that, if I later discover facts different from or in addition to those that I now know or believe to be true, that my release and discharge of all Claims under this Agreement shall be and remain in full force and effect in all respects notwithstanding such different or additional facts or my later discovery of such facts.

 

Exclusions.  I understand that my release and discharge of all Claims under this Agreement excludes any claim(s) I may have for:

 

·

unemployment, disability and paid family leave insurance benefits, if any such benefit programs apply to me, pursuant to the terms of applicable state law;

·

workers’ compensation insurance benefits pursuant to Division 4 of the California Labor Code (or comparable law of another state applicable to me) under any worker’s compensation insurance policy or fund of the Company;

 

·

continued participation in the Company’s group health benefit plans pursuant to the terms and conditions of the federal law known as “COBRA;”

·

any benefit entitlement(s) vested as of my Separation Date, pursuant to written terms of any applicable employee benefit plan sponsored by the Company and governed by the federal law known as “ERISA”;

 

·

any stock and option shares vested as of my Separation Date, pursuant to the written terms and conditions of any stock and/or option grant by the Company to me existing before my Separation Date;

·

violation of any federal, state or local statutory and/or public policy right or entitlement that, by applicable law, is not waivable; and

 

·

any wrongful act or omission by any Releasee occurring after the date I sign this Agreement.

 

Confidentiality.   I agree that I will not disclose to others the fact or terms of this Agreement, except that I may disclose such information to my spouse, and to my attorneys and accountants in order for them to render professional services to me.

 

Continuing Rights and Obligations.

 

I acknowledge and affirm that I have ongoing obligations to the Company after my Separation Date, under the Confidential Information and Invention Assignment Agreement that I signed in connection with my employment with the Company and a copy of which is attached hereto as Attachment 1 (“CIIA”).

 

I understand that nothing in this Agreement prevents or prohibits me from (i) filing a claim with a government agency that is responsible for enforcing a law, (ii) providing information regarding my former employment relationship with the Company, as may be required by law or legal process, or (iii) cooperating, participating or assisting in any government or regulatory entity investigation or proceeding pertaining to the Company.

 

However, I also understand that, because the Claims I am releasing and discharging under this Agreement include all claims “for monetary damages and any other form of personal relief” (see the section entitled “Examples of Claims” above), I may only seek and receive non-personal forms of relief through any claim I may file with a government agency.

 

I also understand and agree that, even if required by subpoena to provide testimony, or otherwise to cooperate, participate or assist in any legal, government or regulatory proceeding that pertains to my former employment with the Company, I shall promptly give written notice to the Company’s Chief Executive Officer (with attention to the Legal Department) that I have been requested or required to violate my CIIA in connection with or during such testimony, legal, government or regulatory proceeding, so that the Company may take legal action to protect its rights under my CIIA.

 

No Admission of Wrongdoing; No Disparagement.   I agree that neither the fact nor any aspect of this Agreement is intended, or should be construed at any time, to be an admission of liability or wrongdoing by either me or by any of the Releasees.  I further agree not to make, or encourage any other person to make, any negative or disparaging statements, as fact or as opinion, about any of the Releasees or their products, services, vendors, customers, or prospective customers, or any person acting by, through, under or in concert with any of them.

 

Agreement Deadline; Revocation Period; Effective Date.   I understand that:

 

I have been advised by the Company to consult with an attorney of my own choosing before signing this Agreement and returning it to the Company on or before the Agreement Deadline.

 

The last date I can sign this Agreement is fifty three (53) days after my Separation Date (“Agreement Deadline”).

 

For seven (7) days after the date I actually sign this Agreement, I may revoke it (“Revocation Period”).  If I revoke this Agreement, I must deliver written notice of my revocation to the Company, no later than the seventh day after the date I signed this Agreement.

 

The “Effective Date” of this Agreement will be the date I have signed it, provided that I have returned to the Company my signature agreement to this Agreement and I have not timely revoked it during the Revocation Period.  I understand that this Agreement, as signed by me, and any notice of revocation, should be delivered by U.S. mail, hand or overnight delivery or facsimile to the number below

 

Human Resources & Legal Departments, Support.com

900 Chesapeake, Redwood City, California 94063

Confidential Facsimile No:  650-482-3761

 

Section 409A.

 

a.           The parties hereto intend that all benefits and payments to be made hereunder will be provided or paid in compliance with all applicable provisions of section 409A of the Code and the regulations issued thereunder, and the rulings, notices and other guidance issued by the Internal Revenue Service interpreting the same, and this Agreement shall be construed and administered in accordance with such intent.  The parties also agree that this Agreement may be modified, as reasonably requested by either party, to the extent necessary to comply with all applicable requirements of, and to avoid the imposition of any additional tax, interest and penalties under, the section 409A of the Code in connection with, the benefits and payments to be provided or paid hereunder. Any such modification shall maintain the original intent and benefit of the applicable provision of this Agreement, to the maximum extent possible without violating section 409A of the Code.

 

b.           In accordance with Section 1.409A-3(d) of the Treasury Regulations, a payment under this Agreement will be treated as made on the designated payment date if the payment is made (i) at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the date designated in this Agreement or (ii) at a date no earlier than 30 days before the designated payment date (provided that I may not, directly or indirectly, designate the year of payment).

 

c.           Notwithstanding any provision in this Agreement to the contrary, the following special provisions shall govern the payment date of my 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 be paid to you on the 60th day following my Separation Date (subject to my timely execution and effectiveness of this release), and

 

(ii)  Notwithstanding clause (i) above, no payments or benefits to which I become entitled under this Agreement that constitute a deferral of compensation within the meaning of Code Section 409A shall be made or paid to me prior to the earlier of (i) the expiration of the six (6)-month period measured from my Separation Date or (ii) the date of  my death, if I am 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 me in a lump sum on the next scheduled payroll date.

 

Each payment under this Agreement is intended to be a “separate payment” and not one of a series of payments for purposes of Section 409A.

 

Complete Agreement; Changes.   In signing this Release Agreement and it becoming effective, I represent and warrant that I am not relying on any statements, representations, negotiations, promises or agreements that are not expressly set forth in this Release Agreement.  I also understand and agree that:

 

·

this Agreement contains my entire understanding, and the entire agreement by me, with respect to the matters covered herein; and

·

this Agreement merges, cancels, supercedes and replaces all prior statements, representations, negotiations, promises or agreements relating to the subjects covered by this Agreement that may have been made by any of the Releasees, including (but not limited to) my offer letter from the Company, except (i) my CIIA which remains in full force and effect in accordance with its terms, (ii) the benefit plans and agreements referenced in Section 3.c.(4)-(5), above, and (iii) any debt obligation I owe to the Company; and

 

 

 

·

this Agreement cannot be changed except by another written agreement signed by me and approved by the Compensation Committee of the Board.

 

I HAVE READ THE FOREGOING RELEASE AGREEMENT.  I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING THE RIGHT TO SUE FOR AGE DISCRIMINATION, HARASSMENT AND RETALIATION UNDER THE ADEA.  I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING BEFORE SIGNING THIS RELEASE AGREEMENT, AND I HAVE BEEN ADVISED TO UNDERTAKE SUCH CONSULTATION.  I SIGN THIS RELEASE AGREEMENT FREELY AND VOLUNTARILY, WITHOUT COERCION OR DURESS.

 

EMPLOYEE

 

[TO BE SIGNED IN THE EVENT OF A TERMINATION WITH SEVERANCE]

 

 

Dated:                                                      

 

Name:                                                      

 

 

Please return a signed copy to:

 

Human Resources & Legal Departments

Support.com, Inc.

900 Chesapeake, Redwood City, California 94063

Confidential Facsimile No:  650-482-3761