<PAGE>
As filed with the Securities and Exchange Commission on March 9, 2000
Registration No. 333-30674
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------
AMENDMENT NO. 1
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
SUPPORT.COM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7389 94-3282005
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
575 Broadway
Redwood City, CA 94063
(650) 556-9440
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
RADHA RAMASWAMI BASU
Chief Executive Officer
SUPPORT.COM, INC.
575 Broadway
Redwood City, CA 94063
(650) 556-9440
(Name, address, including zip code and telephone number, including area code,
of agent for service of process)
----------------
Copies to:
<TABLE>
<S> <C>
Jorge del Calvo, Esq. Mark A. Bertelsen, Esq.
Allison Leopold Tilley, Esq. Jose F. Macias, Esq.
Davina K. Kaile, Esq. Betsey Sue, Esq.
Pillsbury Madison & Sutro LLP Wilson Sonsini Goodrich & Rosati
2550 Hanover Street 650 Page Mill Road
Palo Alto, CA 94304 Palo Alto, CA 94304
</TABLE>
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement numbers of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 is being filed solely for the purpose of filing
exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses expected to be incurred
by the Registrant in connection with the sale and distribution of the
securities being registered hereby, other than underwriting discounts and
commissions. All amounts are estimated except the Securities and Exchange
Commission registration fee and the National Association of Securities
Dealers, Inc. filing fee.
<TABLE>
<CAPTION>
Payable by
Registrant
----------
<S> <C>
SEC registration fee.............................................. $16,395
National Association of Securities Dealers, Inc. filing fee....... 6,710
Nasdaq National Market Listing Fee................................ 95,000
Accounting fees and expenses...................................... *
Legal fees and expenses........................................... *
Printing and engraving expenses................................... *
Blue Sky fees and expenses........................................ *
Registrar and Transfer Agent's fees............................... *
Miscellaneous fees and expenses................................... *
-------
Total........................................................... *
=======
</TABLE>
- --------
* To be filed by amendment.
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). Article XI.B. of the
Registrant's Amended and Restated Certificate of Incorporation (Exhibit 3.1
hereto) and Article XII of the Registrant's Amended and Restated Bylaws
(Exhibit 3.2 hereto) provide for indemnification of the Registrant's
directors, officers, employees and other agents to the extent and under the
circumstances permitted by the Delaware General Corporation Law. The
Registrant has also entered into agreements with its directors and officers
that will require the Registrant, among other things, to indemnify them
against certain liabilities that may arise by reason of their status or
service as directors or officers to the fullest extent not prohibited by law.
The Underwriting Agreement (Exhibit 1.1) provides for indemnification by the
Underwriters of the Registrant, its directors and officers, and by the
Registrant of the Underwriters, for certain liabilities, including liabilities
arising under the Act and affords certain rights of contribution with respect
thereto.
The Underwriting Agreement (Exhibit 1.1) provides for indemnification by
ourselves, our underwriters and our directors and officers of the
underwriters, for certain liabilities, including liabilities arising under the
Act and affords certain rights of contribution with respect thereto.
Item 15. Recent Sales of Unregistered Securities
1. From December 1997 to December 31, 1999, the Registrant issued and
sold 10,874,374 shares of common stock to employees, directors and
consultants at prices ranging from $0.0001 to $0.90 per share.
2. From December 8, 1997 to March 19, 1998, the Registrant issued and
sold 3,571,600 shares of Series A preferred stock to a total of 4 investors
for an aggregate purchase price of $250,012.00.
3. On June 22, 1998, the Registrant issued and sold 7,346,108 shares of
Series B preferred stock to a total of 9 investors for an aggregate
purchase price of $5,050,228.87.
4. On June 14, 1999, the Registrant issued and sold 4,638,618 shares of
Series C preferred stock to a total of 35 investors for an aggregate
purchase price of $15,175,147.93.
II-1
<PAGE>
The sales of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act, or Regulation D promulgated thereunder, or Rule 701
promulgated under Section 3(b) of the Securities Act, as transactions by an
issuer not involving a public offering or transactions pursuant to
compensatory benefit plans and contracts relating to compensation as provided
under Rule 701. The recipients of securities in each of these transactions
represented their intention to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof,
and appropriate legends were affixed to the share certificates and instruments
issued in such transactions. All recipients had adequate access, through their
relationship with the Registrant, to information about the Registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
See exhibits listed on the Exhibit Index following the signature page of
the Form S-1, which is incorporated herein by reference.
(b) Financial Statement Schedules
Schedules other than those referred to above have been omitted because they
are not applicable or not required or because the information is included
elsewhere in the Financial Statements or the notes thereto.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, as amended, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, as amended, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3) The Registrant will provide to the underwriters at the closing(s)
specified in the underwriting agreement certificates in such denominations
and registered in such names as required by the underwriters to permit
prompt delivery to each purchaser.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Redwood City, State of
California, on the 9th day of March, 2000.
Support.Com, Inc.
/s/ Radha Ramaswami Basu
By __________________________________
Radha Ramaswami Basu
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Radha Ramaswami Basu President, Chief Executive March 9, 2000
____________________________________ Officer and Director
Radha Ramaswami Basu (Principal Executive
Officer)
/s/ Brian M. Beattie Senior Vice President of March 9, 2000
____________________________________ Finance and Administration,
Brian M. Beattie Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
* Director March 9, 2000
____________________________________
Mark J. Pincus
* Director March 9, 2000
____________________________________
Matthew T. Cowan
* Director March 9, 2000
____________________________________
William L. Dunn
* Director March 9, 2000
____________________________________
Bruce Golden
* Director March 9, 2000
____________________________________
Edward S. Russell
* Director March 9, 2000
____________________________________
Roger J. Sippl
</TABLE>
/s/ Radha Ramaswami Basu
*By:______________________
Radha Ramaswami Basu
(Attorney-in-Fact)
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1** Amended and Restated Certificate of Incorporation, to be effective
upon consummation of this offering.
3.2** Amended and Restated Bylaws, to be effective upon consummation of
this offering.
3.3** Amended and Restated Certificate of Incorporation.
3.4** Certificate of Correction of the Amended and Restated Certificate of
Incorporation.
3.5** Bylaws.
4.1* Form of Common Stock Certificate.
4.2** Registration Rights Agreement, dated June 22, 1998, by and among the
registrant and the parties who are signatories thereto.
4.3** Amended and Restated Registration Rights Agreement, dated June 14,
1999, by and among the registrant and the parties who are signatories
thereto.
4.4** Warrant Agreement to Purchase Shares of Series C Convertible
Preferred Stock, dated July 12, 1999, by and between the registrant
and Comdisco, Inc.
4.5** Warrant Agreement to Purchase Shares of Series C Preferred Stock,
dated October 27, 1998, by and between the registrant and Comdisco,
Inc.
4.6** Warrant Agreement to Purchase Shares of Series C Preferred Stock,
dated October 27, 1998, by and between the registrant and Comdisco,
Inc.
4.7** Warrant Agreement to Purchase Shares of Series C Preferred Stock,
dated October 27, 1998, by and between the registrant and Comdisco,
Inc.
4.8** Letter Agreement, dated June 7, 1999, by and between the registrant
and Comdisco, Inc.
4.9** Warrant Agreement to Purchase Shares of Series C Preferred Stock by
and between the registrant and Excite, Inc.
4.10 Warrant Agreement to Purchase Shares of Series C Preferred Stock
dated February 17, 2000 by and between the registrant and General
Electric Company.
5.1* Opinion of Pillsbury Madison & Sutro LLP.
10.1 Registrant's Amended and Restated 1998 Stock Option Plan.
10.2** Registrant's 2000 Omnibus Equity Incentive Plan.
10.3** Registrant's 2000 Employee Stock Purchase Plan.
10.4** Form of Directors and Officers' Indemnification Agreement.
10.5** Employment Agreement, dated June 24, 1998, by and between the
registrant and Anthony C. Rodoni.
10.6** Employment Agreement, dated May 26, 1999, by and between the
registrant and Michael O'Rourke.
10.7** Employment Agreement, dated July 15, 1999, by and between the
registrant and Radha R. Basu.
10.8** Employment Agreement, dated August 16, 1999, by and between the
registrant and Scott Dale.
10.9** Employment Agreement, dated August 16, 1999, by and between the
registrant and Cadir Lee.
10.10** Employment Agreement, dated September 27, 1999, by and between the
registrant and Brian M. Beattie.
10.11** Employment Agreement, dated December 7, 1999, by and between the
registrant and Jim Hilbert.
10.12** Employment Agreement, dated January 18, 2000, by and between the
registrant and Lucille Hoger.
10.13* Employment Agreement, dated February , 2000, by and between the
registrant and Mark Pincus.
10.14** Sublease Agreement, dated August 6, 1999, by and between the
registrant and Excite, Inc.
10.15+** Enterprise License Agreement, dated May 27, 1999, by and between the
registrant and Bear, Stearns & Co., Inc.
10.16+** Amendment No. 1 to Enterprise License Agreement, dated October 6,
1999, by and between the registrant and Bear, Stearns & Co., Inc.
10.17+ Enterprise License Agreement dated February 17, 2000 by and between
the registrant and General Electric Company.
23.1** Consent of Ernst & Young LLP.
23.2* Consent of Pillsbury Madison & Sutro LLP (contained in their opinion
filed as Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedule for Support.com, Inc. (in EDGAR format only).
</TABLE>
- -------
* To be filed by amendment.
** Previously Filed.
+ Confidential Treatment Requested.
<PAGE>
EXHIBIT 4.10
THIS WARRANT IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE HEREWITH AND WITH
APPLICABLE SECURITIES LAWS. ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
SUPPORT.COM, INC.
SERIES C PREFERRED STOCK PURCHASE WARRANT
WHEREAS, SUPPORT.COM, INC., a Delaware corporation (the "Company") is
entering into Enterprise License Agreement of even date herewith (the
"Agreement") with GENERAL ELECTRIC COMPANY (including each successor or assign,
the "Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Agreement and other valuable consideration the sufficiency and receipt
of which is hereby acknowledged, the right to purchase shares of its Series C
Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Agreement and in consideration of mutual covenants and
agreements contained herein, the Company and Warrantholder agree as follows:
1. Grant of the Right To Purchase Series C Preferred Stock.
-------------------------------------------------------
This certifies that, for good and valuable consideration the Company,
hereby grants to the Warrantholder, the right to subscribe for and purchase from
the Company, subject to adjustment as provided in Section 9, 119,167 validly
issued, fully paid and nonassessable shares (the "Warrant Shares") of the
Company's Series C Preferred Stock (the "Preferred Stock"), at the purchase
price of $18.00 per share (the "Exercise Price"). This Warrant shall be
exercisable at any time and from time to time during the period (the "Exercise
Period") commencing on the date hereof and ending on August 2, 2002. In
conjunction with the Company's initial public offering, if any, in the event the
Company's outstanding Series C Preferred Stock is converted into Common Stock,
then the right to subscribe for and purchase from the Company Series C Preferred
Stock shall automatically convert to the right to subscribe for and purchase
from the Company the number of shares of Common Stock into which the number of
shares of Series C Preferred Stock issuable hereunder are convertible, assuming
for the calculation that the Warrant had been exercised in full on the date
hereof, and a replacement warrant having substantially the same terms as those
herein, except for changes requested to give effect to the Warrant Shares being
Common Stock, shall be issued to the Warrantholder by the Company upon request.
-1-
<PAGE>
2. Exercise of Warrant; Limitation on Exercise; Payment of Taxes.
-------------------------------------------------------------
2.1 Exercise of Warrant.
--------------------
(a) Cash Exercise. This Warrant may be exercised by the Warrantholder, in
--------------
whole or in part, by (i) the surrender of this Warrant to the Company, with a
duly executed Exercise Form specifying the number of Warrant Shares to be
purchased, during normal business hours on any Business Day during the Exercise
Period and (ii) the delivery of payment to the Company, for the account of the
Company, by cash, wire transfer of immediately available funds to a bank account
specified by the Company, or by certified or bank cashier's check, of the
Exercise Price for the number of Warrant Shares specified in the Exercise Form
in lawful money of the United States of America. The Company agrees that such
Warrant Shares shall be deemed to be issued to the Warrantholder as the record
holder of such Warrant Shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for the Warrant Shares
as aforesaid. A stock certificate or certificates for the Warrant Shares
specified in the Exercise Form shall be delivered to the Warrantholder as
promptly as practicable, and in any event within 10 days, thereafter. The stock
certificate or certificates so delivered shall be in denominations of 100 shares
each or such lesser or greater denominations as may be reasonably specified by
the Warrantholder in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the Warrantholder a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant. No
adjustments shall be made on Warrant Shares issuable on the exercise of this
Warrant for any cash dividends paid or payable to holders of record of Preferred
Stock prior to the date as of which the Warrantholder shall be deemed to be the
record holder of such Warrant Shares.
(b) Net Issue Exercise. In lieu of exercising this Warrant pursuant to
------------------
Section 2.1(a), this Warrant may be exercised by the Warrantholder by the
surrender of this Warrant to the Company, with a duly executed Exercise Form
marked to reflect net issue exercise and specifying the number of Warrant Shares
to be purchased, during normal business hours on any Business Day during the
Exercise Period. The Company agrees that such Warrant Shares shall deemed to be
issued to the Warrantholder as the record holder of such Warrant Shares as of
the close of business on the date on which this Warrant shall have been
surrendered as aforesaid. Upon such exercise, the Warrantholder shall be
entitled to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant to the Company together
with notice of such election in which event the Company shall issue to
Warrantholder a number of shares of the Company's Preferred Stock computed as of
the date of surrender of this Warrant to the Company using the following
formula:
X = Y(A-B)
------
A
Where X = the number of shares of Preferred Stock to be issued to
Warrantholder under this Section 2.1(b);
Y = the number of shares of Preferred Stock as to which this
Warrant is being exercised (at the date of such calculation);
-2-
<PAGE>
A = the fair market value of one share of the Company's Preferred
Stock (at the date of such calculation);
B = the Exercise Price (as adjusted to the date of such
calculation).
(c) Fair Market Value. For purposes of Section 2.1(b) and Section 9, fair
-----------------
market value of one share of the Company's Preferred Stock shall be
calculated based on the number of shares of common stock into which the
Preferred Stock may be converted and shall mean:
(i) the closing price per share of the Company's Common Stock, on
the principal national securities exchange on which the Common Stock is
listed or admitted to trading, or
(ii) if not listed or traded on any such exchange, the average
last reported sales price per share on the Nasdaq National Market or the
Nasdaq Small-Cap Market (collectively, "Nasdaq"), or
(iii) if not listed or traded on any such exchange or Nasdaq, the
average of the bid and asked price per share as reported in the "pink
sheets" published by the National Quotation Bureau, Inc. (the "pink
sheets") in each of cases (i), (ii) and (iii) determined over a twenty-day
trading period ending two days prior to determination, or
(iv) if such quotations are not available, the fair market value
per share of the Company's Preferred Stock, on the date such notice was
received by the Company as reasonably determined by the Board of Directors
of the Company. If the Warrantholder shall object to any determination by
the Board of Directors of the fair market value per share, the fair market
value per share of the Preferred Stock shall be determined by an
independent appraiser retained by the Company at its expense and
reasonably acceptable to the Warrantholder.
2.2 Payment of Taxes. The issuance of certificates for Warrant Shares
----------------
shall be made without charge to the Warrantholder for any stock transfer or
other issuance tax in respect thereto; provided, however, that the Warrantholder
-----------------
shall be required to pay any and all taxes which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then Warrantholder as reflected upon the books of the
Company.
2.3 Information. Upon receipt of a written request from a
-----------
Warrantholder, the Company agrees to deliver promptly to such Warrantholder a
copy of its current publicly available financial statements and to provide such
other information and access to its personnel concerning the business and
operations of the Company as such Warrantholder may reasonably request in order
to assist the Warrantholder in evaluating the merits and risks of exercising the
Warrant and to make an informed investment decision in connection with such
exercise; provided however, that the Company need not provide any proprietary or
competitively sensitive information to Warrantholder if such information is not
required to be provided to other investors or holders of the Company's
convertible securities.
-3-
<PAGE>
3. Restrictions on Transfer; Restrictive Legends.
---------------------------------------------
3.1 Restrictions on Transfer; Compliance with Securities Laws. The
---------------------------------------------------------
Warrant Shares issued upon the exercise of the Warrant may not be transferred or
assigned in whole or in part without compliance with all applicable federal and
state securities laws by the transferor and transferee (including the delivery
of investment representation letters and legal opinions relating to compliance
with applicable federal and state securities laws, in form and substance
reasonably satisfactory to the Company, if such are requested by the Company).
The Warrantholder, by acceptance hereof, acknowledges that this Warrant and the
Warrant Shares to be issued upon exercise hereof are being acquired solely for
the Warrantholder's own account and not as a nominee for any other party, and
for investment, and that the Warrantholder will not offer, sell or otherwise
dispose of any Warrant Shares to be issued upon exercise hereof except under
circumstances that will not result in a violation of the Securities Act or any
state securities laws.
3.2 Restrictive Legends. Each Warrant issued in substitution for this
-------------------
Warrant issued pursuant to Sections 1, 2, 6, 7 or 9 shall be stamped or
otherwise imprinted with the legend set forth on the first page hereof. Except
as otherwise permitted by this Section 3, each stock certificate for Warrant
Shares issued upon the exercise of any Warrant and each stock certificate issued
upon the direct or indirect transfer of any such Warrant Shares shall be stamped
or otherwise imprinted with a legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED
UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT."
Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a stock certificate for Warrant Shares without a legend if (i) such
Warrant Shares, as the case may be, have been registered for resale under the
Securities Act or sold pursuant to Rule 144 under the Securities Act (or a
successor rule thereto) or (ii) the Warrantholder has received an opinion of
counsel reasonably satisfactory to the Company that such registration is not
required with respect to such Warrant Shares.
4. Representations and Covenants of the Company.
--------------------------------------------
4.1 Reservation and Registration of Shares, Etc. The Company covenants
-------------------------------------------
and agrees that all Warrant Shares which are issued upon the exercise of this
Warrant will, upon issuance, be validly issued, fully paid and nonassessable and
free from all taxes, liens, security interests, charges and other encumbrances
with respect to the issue thereof, other than taxes in respect of any transfer
occurring contemporaneously with such issue. The Company further covenants and
agrees that, during the Exercise Period and until delivery of the Warrant Shares
as required under this Warrant, the Company will at all times have authorized
and reserved, a sufficient number of shares of Series C Preferred Stock or, in
the event the Series C Preferred Stock has been converted into Common Stock or
Common Stock is otherwise issuable as provided herein, Common Stock, to provide
for the exercise of the rights represented by this Warrant. Warrantholder
acknowledges that the Company does not currently have Series C Preferred Stock
-4-
<PAGE>
available for issuance hereunder. The Company covenants that such Series C
Preferred Stock will be available within two weeks from the date hereof. In the
event such Series C Preferred Stock is not available within two weeks of the
date hereof, this Warrant shall become exercisable for the number of shares of
Common Stock into which the number of shares of Series C Preferred Stock that
would have been issuable hereunder (taking into account adjustments that are
provided for in Section 9) would have been convertible. In such case, a
replacement warrant reflecting such change will be issued which warrant will
have substantially the same terms as those herein except as appropriate to
reflect that the Warrant Shares shall be Common Stock.
4.2 Company Organization and Standing. The Company is a corporation
---------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all the requisite corporate power and authority to
carry on its business as now conducted and proposed to be conducted. The
Company is duly qualified to transact business in each jurisdiction in which the
failure so to qualify would have a material adverse effect upon the Company.
Exhibit D attached hereto contains a true and complete list of all capital stock
of the Company that is authorized at the time of this Agreement and all capital
stock that is issued and outstanding at the time of this Agreement. Except as
set forth on Exhibit D, the Company has issued no options, warrants, or other
rights to acquire any capital stock of the Company or any securities convertible
into capital stock of the Company.
4.3 Due Authorization. The Company has full corporate power and
-----------------
authority to execute, deliver and perform this Warrant and any other agreements
to which it is to be a party in connection herewith, , and to take, perform and
execute all procedures, acts and instruments required by it to otherwise fulfill
its obligations under this Warrant and such other agreements.
4.4 Corporate Action. All corporate and legal action on the part of the
----------------
Company, its officers and directors necessary for the sale and issuance of the
Warrant Shares pursuant hereto, the issuance of the Common Stock issuable upon
the conversion of the Warrant Shares and the performance of the Company's
obligations hereunder has been taken, except that the consent of the Company's
stockholders to authorize the Series C Preferred Stock to be issued hereunder
has not yet been obtained. There has not been and the Company covenants that
there will not be any change in the par value of the Series C Preferred Stock
from that set forth in the Company's Certificate of Incorporation.
4.5 Binding Agreement. This Agreement constitutes the legal, valid and
-----------------
binding obligation of the Company, enforceable against it in accordance with its
terms, except to the extent that (a) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) the remedy
of specific performance or injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
4.6 Rule 144. The Company covenants and agrees to take commercially
--------
reasonable efforts to facilitate sales of the Warrant Shares under Rule 144 of
the Securities Act of 1933, as amended, at such time as Rule 144 is available to
Warrantholder and the holding period applicable to Warrantholder's proposed
transaction has lapsed.
-5-
<PAGE>
4.7 Offering. Subject to the truth and accuracy of the Warrantholder's
--------
representations set forth in this Warrant, the offer, sale and issuance of this
Warrant and the Series C Preferred Stock issuable upon exercise hereof, and the
issuance of the Common Stock upon conversion of the Series C Preferred Stock or
as otherwise provided herein, are exempt from the registration requirements of
the Securities Act of 1933, as amended, and neither the Company nor any
authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption.
4.8 Qualified IPO. The Company believes that it will effectuate a
-------------
Qualified IPO as defined in that certain Amended and Restated Shareholders
Agreement dated as of February __, 2000 (the "Shareholders Agreement") within
three (3) months of the date hereof. In the event the Company effectuates a
Qualified IPO, the Shareholders Agreement shall terminate.
5. Representations and Covenants of Warrantholder.
----------------------------------------------
This Warrant has been entered into by the Company in reliance upon the
following representations and covenants of the Warrantholder.
5.1 Investment Purpose. The right to acquire the Warrant Shares will be
------------------
acquired for investment and not with a view to the sale or distribution of any
part thereof in violation of any federal or state securities laws, and the
Warrantholder has no present intention of selling or engaging in any public
distribution of the same except pursuant to a registration or exemption.
5.2 Private Issue. The Warrantholder understands (i) that the Warrant
-------------
Shares issuable upon exercise of this Warrant are not registered under the 1933
Act or qualified under applicable state securities laws on the ground that the
issuance contemplated by this Warrant will be exempt from the registration and
qualifications requirements thereof, and (ii) that the Company's reliance on
such exemption is predicated on the representations set forth in this Section 5.
5.3 Financial Risk. The Warrantholder has such knowledge and experience
--------------
in financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
5.4 Indefinite Holding Period. The Warrantholder understands that it
-------------------------
may be required to hold the Warrant Shares for an indefinite period, subject to
its ability in the future to sell such Shares under a registration statement or
Rule 144. The Warrantholder also understands that any sale of its rights as the
Warrantholder to purchase the Warrant Shares which might be made by it in
reliance upon Rule 144 under the 1933 Act may be made only in accordance with
the terms and conditions of that Rule.
5.5 Accredited Investor. Warrantholder is an "accredited investor"
-------------------
within the meaning of the Securities and Exchange Rule 501 of Regulation D, as
presently in effect.
5.6 Market Stand-off Agreement. The Warrantholder hereby agrees that,
--------------------------
during the period of one-hundred and eighty (180) days following the effective
date of a registration statement of the Company filed under the Securities Act
of 1933, as amended, in connection with an underwritten offering, it shall not,
to the extent requested by the Company and such underwriter, sell or otherwise
transfer or dispose of (other than to transferees who agree to be
-6-
<PAGE>
similarly bound) any Warrant Shares held by it except shares included in such
registration; provided, however, that:
(a) such agreement shall be applicable only to a registration
statement initiated by the Company which covers shares of Common Stock or other
securities of the Company to be sold on its behalf to the public in an
underwritten offering; and
(b) all officers and directors of the Company, all other Persons with
registration rights (whether or not pursuant to this Agreement) and all holders
of two percent (2%) or more of the Company's stock (determined on an as-
converted, and fully diluted basis), enter into similar agreements and the
Company does not waive the market standoff agreements applicable to any such
Person.
The Warrantholder shall sign a lock-up agreement in the form attached
hereto as Exhibit C upon receipt hereof, it being understood that the Company
has obtained lock-up agreements with substantially the same terms from all
persons who hold at least the same number of shares as are issuable hereunder,
and in the event the Company modifies any such agreement to reduce the
restrictions or waives such restrictions for any reason, Warrantholder shall be
so notified and shall be entitled to the same treatment.
6. Transfers
---------
Subject to the terms and conditions contained in Section 3 hereof, this
Warrant Agreement and all rights hereunder and the Registration Rights Agreement
referred to in Sections 12.4 are transferable in whole or in part by the
Warrantholder and any successor transferee. The transfer shall be recorded on
the books of the Company upon receipt by the Company of a notice of transfer in
the form attached hereto as Exhibit B (the "Transfer Notice"), at its principal
offices and the payment to the Company of all transfer taxes and other
governmental charges imposed on such transfer.
7. Exchange, Loss or Destruction of Warrant.
----------------------------------------
Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant and, in the case of loss, theft
or destruction, of such bond or indemnification as the Company may require, and,
in the case of such mutilation, upon surrender and cancellation of this Warrant,
the Company will execute and deliver a new Warrant of like tenor. The term
"Warrant" as used in this Agreement shall be deemed to include any Warrants
issued in substitution or exchange for this Warrant.
8. Ownership of Warrant.
--------------------
Unless the Company has received notice of transfer of ownership in the form
of Exhibit B hereto, the Company may deem and treat the person in whose name
this Warrant is registered as the holder and owner hereof (notwithstanding any
notations of ownership or writing hereon made by anyone other than the Company)
for all purposes and shall not be affected by any notice to the contrary.
9. Certain Adjustments.
-------------------
9.1 The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
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<PAGE>
(a) Stock Dividends and Splits. If at any time prior to the exercise of
--------------------------
this Warrant in full (i) the Company shall fix a record date for the issuance of
any stock dividend payable in shares of Preferred Stock or Common Stock or (ii)
the number of shares of Preferred Stock or Common Stock shall have been
increased by a subdivision or split-up of shares of Preferred Stock or Common
Stock, then, on the record date fixed for the determination of holders of
Preferred Stock or Common Stock entitled to receive such dividend or immediately
after the effective date of subdivision or split-up, as the case may be, the
number of shares of Preferred Stock or Common Stock to be delivered upon
exercise of this Warrant will be increased so that the Warrantholder will be
entitled to receive the number of shares of Preferred Stock or Common Stock that
such Warrantholder would have owned immediately following such action had this
Warrant been exercised immediately prior thereto, and the Exercise Price will be
adjusted as provided below in paragraph (h).
(b) Combination of Stock. If at any time prior to the exercise of this
--------------------
Warrant in full the number of shares of Common Stock outstanding shall have
been decreased by a combination of the outstanding shares of Common Stock, then,
immediately after the effective date of such combination, the number of shares
of Common Stock to be delivered upon exercise of this Warrant will be decreased
so that the Warrantholder thereafter will be entitled to receive the number of
shares of Common Stock that such Warrantholder would have owned immediately
following such action had this Warrant been exercised immediately prior thereto,
and the Exercise Price will be adjusted as provided below in paragraph (h).
(c) Reorganization, etc. If at any time prior to the exercise of this
-------------------
Warrant in full any capital reorganization of the Company, or any
reclassification of the Preferred Stock or Common Stock, or any consolidation
of the Company with or merger of the Company with or into any other person or
any sale, lease or other transfer of all or substantially all of the assets of
the Company or of the person formed by such consolidation or resulting from
such merger or which acquires such assets the Warrantholder shall be
entitled thereafter to exercise this Warrant for the kind and amount of
securities, cash, and other property receivable upon such consolidation,
merger, sale or transfer by a holder of shares of Preferred Stock or Common
Stock for which this Warrant may have been exercised immediately prior to
such consolidation, merger, sale or transfer, assuming (i) such holder of
Preferred Stock or Common Stock is not a Person with which the Company
consolidated or into which the Company merged or which merged into the
Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person and (ii) in
the case of a consolidation merger, sale or transfer which includes an
election as to the consideration to be received by the holders, such holder
of Preferred Stock or Common Stock, as applicable, failed to exercise its
rights of election, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the
same for each share of Preferred Stock or Common Stock, as applicable, held
immediately prior to such consolidation, merger, sale or transfer by other
than a constituent Person or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purpose of this Section 9.1(c) the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Adjustments for
events subsequent to the effective date of such a
-8-
<PAGE>
consolidation, merger and sale of assets shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. In any such event,
effective provisions shall be made in the certificate or articles of
incorporation of the resulting or surviving corporation, in any contract of
sale, conveyance, lease or transfer, or otherwise so that the provisions set
forth herein for the protection of the rights of the Warrantholder shall
thereafter continue to be applicable; and any such resulting or surviving
corporation shall expressly assume the obligation to deliver, upon exercise,
such shares of stock, other securities, cash and property. The provisions of
this Section 9.1(c) shall similarly apply to successive consolidations, mergers,
sales, leases or transfers.
(d) Issuance of Convertible Securities. In case the Company shall issue
----------------------------------
rights, options or warrants entitling the holders thereof to subscribe for or
purchase Common Stock or Preferred Stock (or securities convertible into
shares of Common Stock or Preferred Stock) or shall issue convertible
securities, and the price per share of Common Stock or Preferred Stock of
such rights, options, warrants or convertible securities (including, in the
case of rights, options or warrants, the price at which they may be
exercised) is less than the Fair Market Value per Warrant Share, the
maximum number of shares of Common Stock or Preferred Stock issuable upon
exercise of such rights, options or warrants or upon conversion of such
convertible securities shall be deemed to have been issued and outstanding
as of the date of such sale or issuance, and the Exercise Price shall be
adjusted pursuant to Section 9(h) hereof as though such maximum number of
shares of Common Stock or Preferred Stock had been so issued for an
aggregate consideration equal to the aggregate consideration paid for such
rights, options, warrants or convertible securities and the aggregate
consideration payable by the holders of such rights, options, warrants or
convertible securities prior to their receipt of such shares of Common
Stock or Preferred Stock. Notwithstanding the foregoing, no adjustment shall be
made hereunder for issuances of any securities which are excluded from the
definition of "Additional Shares of Common Stock" pursuant to Sections
4(e)(v)(1), (2) or (3) or the Company's Amended and Restated Certificate as of
the date hereof. In case any portion of such consideration shall be in a form
other than cash, the Fair Market Value of such noncash consideration shall be
determined as set forth in Section 2.1(c) hereof. Such adjustment shall be made
successively whenever such rights, options, warrants or convertible securities
are issued; and in the event that such rights, options or warrants expire
unexercised, or in the event of a change in the number of shares of Common Stock
or Preferred Stock to which the holders of such rights, options, warrants or
convertible securities are entitled, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in effect if such rights, options,
warrants or convertible securities had not been issued, in the former event, or
the Exercise Price which would then be in effect if such holders had initially
been entitled to such changed number of shares of Common Stock, in the latter
event. No adjustment of the Exercise Price shall be made pursuant to this
Section 9(d) to the extent that the Exercise Price shall have been adjusted
pursuant to Section 9(h) upon the setting of any record date relating to such
rights, options, warrants or convertible securities and such adjustment fully
reflects the number of shares of Common Stock or Preferred Stock to which the
holders of such rights, options, warrants or convertible securities are entitled
and the price payable therefor.
(e) Distributions. In case the Company shall fix a record date for the
-------------
making of a distribution to holders of Common Stock or Preferred Stock
(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing
-9-
<PAGE>
corporation) of evidences of indebtedness, assets or other property (other than
dividends payable in Common Stock or Preferred Stock or rights, options or
warrants referred to in, and for which an adjustment is made pursuant to,
Sections 9.1(a) or (c) hereof), the Exercise Price to be in effect after such
record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the Fair Market Value per share on such record date, less the fair
market value (determined as set forth in Section 2.1(c) hereof) of the portion
of the assets, other property or evidence of indebtedness so to be distributed
which is applicable to one share of Common Stock, and the denominator of which
shall be such Fair Market Value per share. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such
distribution is not so made, the Exercise Price shall again be adjusted to be
the Exercise Price which would then be in effect if such record date had not
been fixed.
(f) Fractional Shares. No fractional shares of Preferred Stock or
-----------------
scrip shall be issued to any Warrantholder in connection with the exercise of
this Warrant. Instead of any fractional shares of Preferred Stock that would
otherwise be issuable to such Warrantholder, the Company will pay to such
Warrantholder a cash adjustment in respect of such fractional interest in an
amount equal to that fractional interest of the then current Fair Market Value
per share of Preferred Stock.
(g) Carryover. Notwithstanding any other provision of this Section 9, no
---------
adjustment shall be made to the number of shares of Preferred Stock to be
delivered to the Warrantholder (or to the Exercise Price) if such adjustment
represents less than 1% of the number of shares to be so delivered, but any
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to 1% or more of the number of shares to be so
delivered.
(h) Exercise Price Adjustment. Whenever the number of Warrant Shares
-------------------------
purchasable upon the exercise of the Warrant is adjusted, as herein provided,
the Exercise Price payable upon the exercise of this Warrant shall be adjusted
by multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant Shares
purchasable immediately thereafter.
(i) No Duplicate Adjustments. Notwithstanding any other provision of this
------------------------
Warrant, no adjustment shall be made under any subsection of this Section 9 to
the number of Warrant Shares issuable hereunder or to the Exercise Price with
respect to which and to the extent an adjustment having the same effect has been
made at such time under another subsection of this Section 9. If an adjustment
is made to the Series C Conversion Price or to the number of shares of Common
Stock issuable upon conversion of the Preferred pursuant to the Company's
Amended and Restated Certificate of Incorporation and Warrantholder actually
receives the full effect of such adjustment upon exercise of this Warrant, then
no duplicative adjustment to the number of Warrant Shares or the Exercise Price
shall be made under this Section 9.
9.2 No Adjustment for Dividends. Except as provided in Section 9.1, no
---------------------------
adjustment in respect of any dividends shall be made during the term of the
Warrant or upon the exercise of this Warrant. For purposes of any computation
under this Section 9, the number of shares of
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<PAGE>
Preferred Stock and Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company.
9.3 Notice of Adjustment. Whenever the number of Warrant Shares or the
--------------------
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail by first class, postage prepaid, to the
Warrantholder, notice of such adjustment or adjustments and a certificate of the
chief financial officer of the Company setting forth the number of Warrant
Shares and the Exercise Price of such Warrant Shares after such adjustment,
setting forth a statement of the facts requiring such adjustment and setting
forth the computation by which such adjustment was made together with supporting
documentation reasonably requested by Warrantholder. The Company shall
cooperate with the Warrantholder in the event the Warrantholder disagrees with
or requests more information regarding such adjustment.
10. Notices of Corporate Action.
---------------------------
In the event of
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any Change of Control,
or
(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company, or
(d) the receipt of a request for registration of Registrable Securities by
Investors under the Registration Rights Agreement or the Company determines
to file a registration statement giving rise to the Investors' rights under
such Agreement
the Company will mail to the Warrantholder a notice specifying (i) the date or
expected date on which any such record is to be taken for the purpose of such
dividend, distribution or right and the amount and character of any such
dividend, distribution or right, (ii) the date of receipt of a request for
registration from Investors or the Company's notice to Investors as referred to
in clause (d), and (iii) the date or expected date on which any such
reorganization, reclassification, recapitalization, Change of Control,
dissolution, liquidation or winding-up is to take place and the time, if any
such time is to be fixed, as of which the holders of record of Preferred Stock
(or other securities) shall be entitled to exchange their shares of Preferred
Stock (or other securities) for the securities or other property deliverable
upon such reorganization, reclassification, recapitalization, Change of Control,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 20
days prior to the date therein specified, in the case of any date referred to in
the foregoing subdivision (i), and at least 20 days prior to the date therein
specified, in the case of the date referred to in the foregoing subdivision
(ii).
-11-
<PAGE>
11. Definitions.
-----------
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
Affiliate: shall have the meaning given to such term in Rule 12b-2
---------
promulgated under the Exchange Act.
Business Day: any day other than a Saturday, Sunday or a day on which
------------
national banks are authorized by law to close.
Change of Control: shall mean (i) the acquisition of the Company pursuant
-----------------
to a consolidation of the Company with or merger of the Company with or into any
other person in which the Company is not the surviving corporation (other than a
reincorporation), (ii) the sale of all or substantially all of the assets of the
Company to any other person or (iii) any sale or transfer of any capital stock
of the Company after the date of this Agreement, following which fifty percent
(50%) or more of the Company's outstanding voting stock is transferred to
holders different than those who held the stock immediately prior to such sale
or transfer. For purposes of this definition, "group" shall have the meaning as
such term is used in Section 13(d)(1) under the Exchange Act.
Company: Support.com, Inc., a Delaware corporation.
-------
Exchange Act: the Securities Exchange Act of 1934, as amended, or any
------------
successor federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time. Reference to a particular
section of the Securities Exchange Act of 1934, as amended, shall include a
reference to a comparable section, if any, of any successor federal statute.
Exercise Form: an Exercise Form in the form annexed hereto as Exhibit A.
-------------
Exercise Price: the meaning specified on the cover of this Warrant, as
--------------
such price may be adjusted pursuant to Section 9 hereof.
Investors: has the meaning assigned to it in the Registration Rights
---------
Agreement.
Nasdaq: the meaning specified in Section 3.1(c)(ii).
------
SEC: the Securities and Exchange Commission or any other federal agency at
---
the time administering the Securities Act or the Exchange Act, whichever is the
relevant statute for the particular purpose.
Securities Act: the Securities Act of 1933, as amended, or any successor
--------------
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular section of
the Securities Act of 1933, as amended, shall include a reference to the
comparable section, if any, of any successor federal statute.
Warrantholder: the meaning specified on the cover of this Warrant.
-------------
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<PAGE>
Warrant Shares: the meaning specified on the cover of this Warrant,
--------------
subject to the provisions of Sections 4.1 and 9.
12. Miscellaneous.
-------------
12.1 Entire Agreement. This Warrant constitutes the entire agreement
----------------
between the Company and the Warrantholder with respect to this Warrant.
12.2 Binding Effects; Benefits. This Warrant shall inure to the benefit
-------------------------
of and shall be binding upon the Company and the Warrantholder and their
respective successors and assigns. Nothing in this Warrant, expressed or
implied, is intended to or shall confer on any person other than the Company and
the Warrantholder, or their respective successors, any rights, remedies,
obligations or liabilities under or by reason of this Warrant.
12.3 Amendments and Waivers. This Warrant may not be modified or amended
----------------------
except by an instrument or instruments in writing signed by the Company and the
Warrantholder. Either the Company or the Warrantholder may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
12.4 Registration Rights. At its election, the Warrantholder shall
-------------------
become a party with the same rights as each Investor thereunder, to that certain
Amended and Restated Investors Rights Agreement a draft of which has been
provided to Warrantholder ("Registration Rights Agreement
12.5 Section and Other Headings. The section and other headings
--------------------------
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
12.6 Further Assurances. Each of the Company and the Warrantholder shall
------------------
do and perform all such further acts and things and execute and deliver all such
other certificates, instruments and documents as the Company or the
Warrantholder may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Agreement and
the other agreements referred to herein to which the Company and Warrantholder
are parties.
12.7 Notices. All notices and other communications required or permitted
-----------
to be given under this Warrant shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by United States mail, postage
prepaid, to the parties hereto at the following addresses or to such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
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<PAGE>
(a) if to the Company, addressed to:
Support.com, Inc.
575 Broadway
Redwood City, CA 94063
Attention: Brian Beattie
Fax: (650) 556-1195
With a copy to:
Pillsbury Madison & Sutro LLP
2550 Hanover Street
Palo Alto, CA 94304
Attention: Jorge del Calvo
Fax: (650) 233-4545
(b) if to the Warrantholder, addressed to:
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Attn: Mr. Gary Reiner
Fax: (203) 373-3707
With a copy to:
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Attn: Ms. Pamela Daley
Fax: (203) 373-3008
Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received on the date of delivery thereof, if delivered
personally, or on the fifth Business Day after the mailing thereof.
12.8 Counterparts. This Warrant may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.9 Separability. Any term or provision of this Warrant which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
12.10 Governing Law. This Warrant shall be deemed to be a contract made
-------------
under the laws of the State of Delaware.
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<PAGE>
12.11 No Rights or Liabilities as Stockholder. Until and unless this
---------------------------------------
Warrant shall have been exercised in accordance with the terms hereof, nothing
contained in this Warrant shall be deemed to confer upon the Warrantholder any
rights as a stockholder of the Company or to impose any liabilities on the
Warrantholder to purchase any securities whether such liabilities are asserted
by the Company or by creditors or stockholders of the Company or otherwise.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
Dated: February 17, 2000.
GENERAL ELECTRIC COMPANY SUPPORT.COM, INC.
By /s/ Mark Mastrianni By /s/ Radha R. Basu
------------------------ ------------------------
Title Mgr, Technology Title President & CEO
------------------------ ------------------------
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<PAGE>
Exhibit A
---------
EXERCISE FORM
-------------
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase Warrant Shares and (check one):
herewith tenders payment for _______ of the Warrant Shares to the
[ ] order of Support.com, Inc. in the amount of $_________ in
accordance with the term this Warrant; or
herewith tenders this Warrant for _______ Warrant Shares pursuant
[ ] to the Net Issue Exercise provisions of Section 2.1(b) of this
Warrant
The undersigned requests that a certificate (or certificates) for such Warrant
Shares be registered in the name of the undersigned and that such certificate
(or certificates) be delivered to the undersigned's address below.
In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the Warrant Shares are being acquired solely for the account
of the undersigned and not as a nominee for any other party, or for investment,
and that the undersigned will not offer, sell or otherwise dispose of any such
Warrant Shares except under circumstances that will not result in a violation of
the Securities Act of 1933, as amended, or any state securities laws.
Dated: ___________________.
_______________________________________
(Signature)
_______________________________________
(Print Name)
_______________________________________
(Street Address)
_______________________________________
(City) (State) (Zip Code)
If said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant is to be issued in the name of said undersigned
for the balance remaining of the shares purchasable thereunder.
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<PAGE>
Exhibit B
---------
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this form and
supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to
___________________________________________________________________
(Please Print)
whose address is___________________________________________________
___________________________________________________________________
Dated:___________________________________
Holder's Signature:______________________
Holder's Address:________________________
__________________________________________
Signature Guaranteed: __________________________________________
NOTE: The signature to this Transfer Notice must correspond with the name
as it appears on the face of the Warrant Agreement, without alteration
or enlargement or any change whatever. Officers of corporations and
those acting in a fiduciary or other representative capacity should file
proper evidence of authority to assign the foregoing Warrant Agreement.
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<PAGE>
EXHIBIT 10.1
SUPPORT.COM, INC.
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
1. Purposes of the Plan. This Amended and Restated 1998 Stock Option Plan
--------------------
is designed to attract and retain the best available personnel for positions of
substantial responsibility and to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or Nonstatutory
Stock Options, as determined by the Administrator at the time of grant of an
Option and subject to the applicable provisions of Section 422 of the Code and
the regulations promulgated thereunder.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" means the Board or any of its Committees
appointed pursuant to Section 4 of the Plan.
(b) "Applicable Laws" means the legal requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code and the applicable laws of any
foreign country or jurisdiction where Options are, or will be, granted under the
Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a Committee appointed by the Board of Directors
in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means Support.com, Inc., a Delaware corporation.
(h) "Consultant" means any person who is engaged by the Company or
any Parent or Subsidiary to render consulting or advisory services and is
compensated for such services, and any Director of the Company whether
compensated for such services or not. If the Company registers any class of any
equity security pursuant to the Exchange Act, the term Consultant shall
thereafter not include Directors who are not compensated for their services or
are paid only a Director's fee by the Company.
(i) "Continuous Status as an Employee or Consultant" means that the
employment or consulting relationship with the Company, any Parent or Subsidiary
is not interrupted or terminated. Continuous Status as an Employee or
Consultant shall not be considered interrupted in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor. A
leave of absence approved by the Company shall include sick leave, military
leave, or any other personal leave approved by an authorized representative of
the
<PAGE>
Company. For purposes of Incentive Stock Options, no such leave may exceed 90
days, unless reemployment upon expiration of such leave is guaranteed by statute
or contract, including Company policies. If reemployment upon expiration of a
leave of absence approved by the Company is not so guaranteed, on the 91st day
of such leave any Incentive Stock Option held by the Optionee shall cease to be
treated as an Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option.
(j) "Director" means a member of the Board of Directors of the
Company.
(k) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a Director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation The
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for such
stock (or the closing bid, if no sales were reported) as quoted on such
exchange or system for the last market trading day prior to the time of
determination, as reported in The Wall Street Journal or such other source
as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market
Value shall be the mean between the high bid and low asked prices for the
Common Stock on the last market trading day prior to the day of
determination; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by
the Administrator.
(n) "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
(o) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
(p) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
2
<PAGE>
(q) "Option" means a stock option granted pursuant to the Plan.
(r) "Optioned Stock" means the Common Stock subject to an Option.
(s) "Optionee" means an Employee or Consultant who receives an
Option.
(t) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(u) "Plan" means this Amended and Restated 1998 Stock Option
Plan.
(v) "Section 16(b)" means Section 16(b) of the Securities Exchange
Act of 1934, as amended.
(w) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 12 below.
(x) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 12 of
-------------------------
the Plan, the maximum aggregate number of Shares that may be subject to option
and sold under the Plan is 9,424,434 Shares. The Shares may be authorized but
unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an option exchange program, the
unpurchased Shares that were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has terminated). However, Shares
that have actually been issued under the Plan, upon exercise of an Option, shall
not be returned to the Plan and shall not become available for future
distribution under the Plan, except that if Shares are repurchased by the
Company at their original purchase price, and the original purchaser of such
Shares did not receive any benefits of ownership of such Shares, such Shares
shall become available for future grant under the Plan. For purposes of the
preceding sentence, voting rights shall not be considered a benefit of Share
ownership.
4. Administration of the Plan.
--------------------------
(a) Initial Plan Procedure. Prior to the date, if any, upon which
----------------------
the Company becomes subject to the Exchange Act, the Plan shall be administered
by the Board or a Committee appointed by the Board.
(b) Plan Procedure after the Date, if any, upon which the Company
-------------------------------------------------------------
Becomes Subject to the Exchange Act.
- -----------------------------------
3
<PAGE>
(i) Multiple Administrative Bodies. If permitted by Rule
------------------------------
16b-3, the Plan may be administered by different bodies with respect to
Directors, Officers and Employees who are neither Directors nor Officers.
(ii) Administration with Respect to Directors and Officers. With
-----------------------------------------------------
respect to grants of Options to Employees who are also Officers or
Directors of the Company, the Plan shall be administered by (A) the Board
if the Board may administer the Plan in compliance with the rules under
Rule 16b-3 promulgated under the Exchange Act or any successor thereto
("Rule 16b-3") relating to the disinterested administration of employee
benefit plans under which Section 16(b) exempt discretionary grants and
awards of equity securities are to be made, or (B) a Committee designated
by the Board to administer the Plan, which Committee shall be constituted
to comply with the rules under Rule l6b-3 relating to the disinterested
administration of employee benefit plans under which Section 16(b) exempt
discretionary grants and awards of equity securities are to be made. Once
appointed, such Committee shall continue to serve in its designated
capacity until otherwise directed by the Board. From time to time the Board
may increase the size of the Committee and appoint additional members
thereof, remove members (with or without cause) and appoint new members in
substitution therefor, fill vacancies, however caused, and remove all
members of the Committee and thereafter directly administer the Plan, all
to the extent permitted by the rules under Rule l6b-3 relating to the
disinterested administration of employee benefit plans under which Section
16(b) exempt discretionary grants and awards of equity securities are to be
made.
(iii) Administration with Respect to Other Employees and
--------------------------------------------------
Consultants. With respect to grants of Options and to Employees or
-----------
Consultants who are neither Directors nor Officers of the Company, the Plan
shall be administered by (A) the Board or (B) a Committee designated by the
Board, which committee shall be constituted in such a manner as to satisfy
Applicable Laws. Once appointed, such Committee shall continue to serve in
its designated capacity until otherwise directed by the Board. From time
to time the Board may increase the size of the Committee and appoint
additional members thereof, remove members (with or without cause) and
appoint new members in substitution therefor, fill vacancies, however
caused, and remove all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by the Applicable Laws.
(c) Powers of the Administrator. Subject to the provisions of the
---------------------------
Plan and, in the case of a Committee, the specific duties delegated by the Board
to such Committee, and subject to the approval of any relevant authorities,
including the approval, if required, of any stock exchange upon which the Common
Stock is listed, the Administrator shall have the authority in its discretion:
(i) to determine the Fair Market Value of the Common Stock, in
accordance with Section 2(m) of the Plan;
4
<PAGE>
(ii) to select the Consultants and Employees to whom Options
may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of Shares to be covered by each
such award granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions of any award granted
hereunder;
(vii) to determine whether and under what circumstances an
Option may be settled in cash under subsection 9(f) instead of Common
Stock;
(viii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option has declined since the date the Option was granted;
(ix) to provide for the early exercise of Options for the
purchase of unvested shares subject to such terms and conditions as the
Administrator may determine; and
(x) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan.
(d) Effect of Administrator's Decision. All decisions,
----------------------------------
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
5. Elipibility.
-----------
(a) Nonstatutory Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if otherwise
eligible, be granted additional Options.
(b) Each Option shall be designated in the written option agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 5(b), Incentive Stock Options shall be taken into account in the order
in which they were granted. The
5
<PAGE>
Fair Market Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(c) Neither the Plan nor any Option shall confer upon any Optionee
any right with respect to continuation of his or her employment or consulting
relationship with the Company, nor shall it interfere in any way with his or her
right or the Company's right to terminate his or her employment or consulting
relationship at any time, with or without cause.
(d) Upon the Company or a successor corporation issuing any class of
common equity securities required to be registered under Section 12 of the
Exchange Act or upon the Plan being assumed by a corporation having a class of
common equity securities required to be registered under Section 12 of the
Exchange Act, the following limitations shall apply to grants of Options to
Employees:
(i) The foregoing limitations shall be adjusted proportionately
in connection with any change in the Company's capitalization as described
in Section 11.
(ii) If an Option is cancelled in the same fiscal year of the
Company in which it was granted (other than in connection with a
transaction described in Section 11), the cancelled Option shall be counted
against the limit set forth in subsection (i) above. For this purpose, if
the exercise price of an Option is reduced, such reduction will be treated
as a cancellation of the Option and the grant of a new Option.
6. Term of Plan. The Plan shall become effective upon the earlier to
------------
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company, as described in Section 17 of the Plan. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 13 of the Plan.
7. Term of Option. The term of each Option shall be the term stated in
--------------
the Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the date of grant thereof. In the case of an Incentive Stock
Option granted to an Optionee who, at the time the Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the term of the Option shall
be five (5) years from the date of grant thereof or such shorter term as may be
provided in the Option Agreement.
8. Option Exercise Price and Consideration.
---------------------------------------
(a) The per share exercise price for the Shares to be issued upon
exercise of an Option shall be such price as is determined by the Administrator,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of grant of
such Option, owns stock representing more than ten percent (10%) of the
voting power
6
<PAGE>
of all classes of stock of the Company or any Parent or Subsidiary, the per
Share exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of grant.
(B) granted to any other Employee, the per Share exercise
price shall be no less than 100% of the Fair Market Value per Share on the
date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of grant of such
Option, owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or Subsidiary,
the per Share exercise price shall be no less than 110% of the Fair Market
Value per Share on the date of the grant.
(B) granted to any other person, the per Share exercise
price shall be no less than 85% of the Fair Market Value per Share on the
date of grant.
(b) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant). Such consideration may consist of (1) cash,
(2) check, (3) promissory note, (4) other Shares that (x) in the case of Shares
acquired upon exercise of an Option, have been owned by the Optionee for more
than six months on the date of surrender, and (y) have a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the Shares as to
which such Option shall be exercised, (5) delivery of a properly executed
exercise notice together with such other documentation as the Administrator and
a broker, if applicable, shall require to effect an exercise of the Option and
delivery to the Company of the sale or loan proceeds required to pay the
exercise price, or (6) any combination of the foregoing methods of payment. In
making its determination as to the type of consideration to accept, the
Administrator shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company.
9. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Stockholder. Any Option
-----------------------------------------------
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator, including performance criteria with respect
to the Company and/or the Optionee, and as shall be permissible under the terms
of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the
7
<PAGE>
Administrator, consist of any consideration and method of payment allowable
under Section 8(b) hereof. Until the issuance (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote,
receive dividends or any other rights as a stockholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise of the Option. The Company
shall issue (or cause to be issued) such stock certificate promptly upon
exercise of the Option. No adjustment shall be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 11 hereof.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares that thereafter may be available, both for purposes of the Plan
and for sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Employment or Consulting Relationship. In the
----------------------------------------------------
event of termination of an Optionee's Continuous Status as an Employee or
Consultant (but not in the event of an Optionee's change of status from Employee
to Consultant (in which case an Employee's Incentive Stock Option shall
automatically convert to a Nonstatutory Stock Option on the date three (3)
months and one day following such change of status) or from Consultant to
Employee), such Optionee may, but only within such period of time as is
determined by the Administrator, of at least thirty (30) days, with such
determination in the case of an Incentive Stock Option not exceeding three (3)
months after the date of such termination (but in no event later than the
expiration date of the term of such Option as set forth in the Option
Agreement), exercise his or her Option to the extent that the Optionee was
entitled to exercise it at the date of such termination. To the extent that the
Optionee was not entitled to exercise the Option at the date of such
termination, or if the Optionee does not exercise such Option to the extent so
entitled within the time specified herein, the Option shall terminate.
(c) Disability of Optionee. In the event of termination of an
----------------------
Optionee's Continuous Status as an Employee or Consultant as a result of his or
her disability, the Optionee may, but only within twelve (12) months from the
date of such termination (and in no event later than the expiration date of the
term of such Option as set forth in the Option Agreement), exercise the Option
to the extent otherwise entitled to exercise it at the date of such termination.
If such disability is not a "disability" as such term is defined in Section
22(e)(3) of the Code, in the case of an Incentive Stock Option such Incentive
Stock Option shall automatically cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option on
the day three months and one day following such termination. To the extent that
the Optionee was not entitled to exercise the Option at the date of termination,
or if the Optionee does not exercise such Option to the extent so entitled
within the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an Optionee, the
-----------------
Option may be exercised at any time within twelve (12) months following the date
of death (but in no event later than the expiration of the term of such Option
as set forth in the Notice of Grant) by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest
8
<PAGE>
or inheritance, but only to the extent that the Optionee was entitled to
exercise the Option on the date of death. If, at the time of death, the
Optionee was not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall immediately revert to
the Plan. If, after the Optionee's death, the Optionee's estate or a person who
acquires the right to exercise the Option by bequest or inheritance does not
exercise the Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(e) Rule 16b-3. Options granted to persons subject to Section 16(b)
----------
of the Exchange Act must comply with Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
(f) Buyout Provisions. The Administrator may at any time offer to
-----------------
buy out for a payment in cash or Shares, an Option previously granted, based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
10. Non-Transferability of Options. Options may not be sold, pledged,
------------------------------
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merge.
---------------------------------------------------
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock that have been
authorized for issuance under the Plan but as to which no Option has yet been
granted or that has been returned to the Plan upon cancellation or expiration of
an Option, as well as the price per share of Common Stock covered by each such
outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company.
The conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration." Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, the Administrator shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously
9
<PAGE>
exercised, the Option shall terminate immediately prior to the consummation of
such proposed action.
(c) Merge. In the event of a merger of the Company with or into
-----
another corporation, each outstanding Option may be assumed or an equivalent
option or right may be substituted by such successor corporation or a parent or
subsidiary of such successor corporation. If, in such event, an Option is not
assumed or substituted, the Option shall terminate as of the date of the closing
of the merger. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger, the Option confers the right to
purchase or receive, for each Share of Optioned Stock subject to the Option
immediately prior to the merger, the consideration (whether stock, cash, or
other securities or property) received in the merger by holders of Common Stock
for each Share held on the effective date of the transaction (and if the holders
are offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares). If such consideration
received in the merger is not solely common stock of the successor corporation
or its Parent, the Administrator may, with the consent of the successor
corporation, provide for the consideration to be received upon the exercise of
the Option, for each Share of Optioned Stock subject to the Option, to be solely
common stock of the successor corporation or its Parent equal in fair market
value to the per share consideration received by holders of Common Stock in the
merger.
12. Time of Granting Options. The date of grant of an Option shall, for
------------------------
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option is so granted within a reasonable time after the date of such
grant.
13. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may at any time amend,
-------------------------
alter, suspend or discontinue the Plan, but no amendment, alteration, suspension
or discontinuation shall be made that would impair the rights of any Optionee
under any grant theretofore made, without his or her consent. In addition, to
the extent necessary and desirable to comply with Rule 16b-3 under the Exchange
Act or with Section 422 of the Code (or any other applicable law or regulation,
including the requirements of the NASD or an established stock exchange), the
Company shall obtain stockholder approval of any Plan amendment in such a manner
and to such a degree as required.
(b) Effect of Amendment or Termination. Any such amendment or
----------------------------------
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Administrator, which agreement must be in writing and signed by the Optionee
and the Company.
14. Conditions upon Issuance of Shares. Shares shall not be issued
----------------------------------
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without
10
<PAGE>
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules
and regulations promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan,
---------------------
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
16. Agreements. Options shall be evidenced by written agreements in such
----------
form as the Administrator shall approve from time to time.
17. Stockholder Approval. Continuance of the Plan shall be subject to
--------------------
approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such stockholder approval shall be obtained
in the degree and manner required under Applicable Laws and the rules of any
stock exchange upon which the Common Stock is listed.
18. Information to Optionees and Purchasers. The Company shall provide to
---------------------------------------
each Optionee and to each individual who acquires Shares pursuant to the Plan,
not less frequently than annually during the period such Optionee or purchaser
has one or more Options outstanding, and, in the case of an individual who
acquires Shares pursuant to the Plan, during the period such individual owns
such Shares, copies of annual financial statements. The Company shall not be
required to provide such statements to key employees whose duties in connection
with the Company assure their access to equivalent information.
11
<PAGE>
SUPPORT.COM, INC.
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
----------------------------
((F1))
You have been granted an option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Stock Option Agreement.
The Terms of your grant are set forth below:
Date of Grant ((F2))
Vesting Commencement Date ((F3))
Exercise Price per Share --- per share
Total Number of Shares Granted ((F4))
Total Exercise Price $((F5))
Type of Option: Incentive Stock Option
------
------ Nonstatutory Stock Option
Term/Expiration Date: ((F61))
Exercise and Vesting Schedule:
-----------------------------
The Shares subject to this Option shall vest according to the following
schedule:
No Shares are currently vested 25% of the Shares subject to the Option
(rounded down to the next whole number of shares) shall vest one year after the
Vesting Commencement Date, and 1/48th of the Shares subject to the Option
(rounded down to the next whole number of shares) shall vest on the first day of
each month thereafter, so that all of the Shares shall be vested on the first
day of the 48th month after the Vesting Commencement Date.
<PAGE>
Termination Period:
- -------------------
This Option may be exercised, to the extent vested, for thirty days after
termination of Optionee's employment or consulting relationship. A longer
period may be applicable, however, upon death or disability of Optionee as
provided in the Plan, but in no event later than the Term/Expiration Date as
provided above.
II. AGREEMENT
---------
1. Grant of Option. The Company hereby grants to the Optionee an Option
---------------
to purchase the Common Stock (the "Shares") set forth in the Notice of Grant, at
the exercise price per share set forth in the Notice of Grant (the "Exercise
Price"). Notwithstanding anything to the contrary anywhere else in this Option
Agreement, this grant of an Option is subject to the terms, definitions and
provisions of the Amended and Restated 1998 Stock Option Plan (the "Plan")
adopted by the Company, which is incorporated herein by reference.
If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an ISO as defined in Section 422
of the Code.
2. Exercise of Option. This Option is exercisable as follows:
------------------
(i) Right to Exercise.
-----------------
(a) Subject to subsections 2(i)(b) through 2(i)(d) below, this
Option shall be exercisable cumulatively according to the vesting schedule set
out in the Notice of Grant. Shares subject to this Option shall vest based on
continued employment of or consulting services by Optionee with the Company.
(b) This Option may not be exercised for a fraction of a Share.
(c) In the event of Optionee's death, disability or other
termination of the employment or consulting relationship, the exercisability of
the Option is governed by Sections 7, 8 and 9 below.
(d) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in the Notice of Grant.
(ii) Method of Exercise. This Option shall be exercisable by written
------------------
Notice (in the form attached as Exhibit A). The Notice must state the number of
---------
Shares for which the Option is being exercised, and such other representations
and agreements with respect to such shares of Common Stock as may be required by
the Company pursuant to the provisions of the Plan. The Notice must be signed
by the Optionee and shall be delivered in person or by certified mail to the
Secretary of the Company. The Notice must be accompanied by payment of the
Exercise Price. This Option shall be deemed to be exercised upon receipt by the
Company of such written Notice accompanied by the Exercise Price.
<PAGE>
No Shares shall be issued pursuant to the exercise of an Option unless
such issuance and such exercise comply with all relevant provisions of law and
the requirements of any stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
3. Optionee's Representations. If the Shares purchasable pursuant to the
--------------------------
exercise of this Option have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), at the time this Option is exercised,
Optionee shall, if required by the Company, concurrently with the exercise of
all or any portion of this Option, deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit B.
---------
4. Lock-Up Period. Optionee hereby agrees that if so requested by the
--------------
Company or any representative of the underwriters (the "Managing Underwriter")
in connection with any registration of the offering of any securities of the
Company under the Securities Act, Optionee shall not sell or otherwise transfer
any Shares or other securities of the Company during the 180-day period (or such
longer period as may be requested in writing by the Managing Underwriter and
agreed to in writing by the Company) (the "Market Standoff Period") following
the effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that such restriction shall apply only to the
first registration statement of the Company to become effective under the
Securities Act that includes securities to be sold on behalf of the Company to
the public in an underwritten public offering under the Securities Act. The
Company may impose stop-transfer instructions with respect to securities subject
to the foregoing restrictions until the end of such Market Standoff Period.
5. Method of Payment. Payment of the Exercise Price shall be by any of
-----------------
the following, or a combination thereof, at the election of the Optionee:
(i) cash; or
(ii) check; or
(iii) surrender of other shares of Common Stock of the Company which
(A) in the case of Shares acquired pursuant to the exercise of a Company option,
have been owned by the Optionee for more than six (6) months on the date of
surrender, and (B) have a Fair Market Value on the date of surrender equal to
the Exercise Price of the Shares as to which the Option is being exercised; or
(iv) to the extent permitted by the Administrator, delivery of a
properly executed exercise notice together with such other documentation as the
Administrator and the broker, if applicable, shall require to effect an exercise
of the Option and delivery to the Company of the sale or loan proceeds required
to pay the Exercise Price.
6. Restrictions on Exercise. This Option may not be exercised until the
------------------------
Plan has been approved by the stockholders of the Company. If the issuance of
Shares upon such exercise
<PAGE>
or if the method of payment for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation, then the
Option may also not be exercised. The Company may require Optionee to make any
representation and warranty to the Company as may be required by any applicable
law or regulation before allowing the Option to be exercised.
7. Termination of Relationship. If an Optionee's Continuous Status as an
---------------------------
Employee or Consultant terminates, Optionee may exercise this Option during the
Termination Period set out in the Notice of Grant, to the extent the Option was
vested at the date of such termination (the "Termination Date"). To the extent
that Optionee was not vested in this Option at the date of such termination, or
if Optionee does not exercise this Option within the time specified herein, the
Option shall terminate.
8. Disability of Optionee. Despite Section 6 above, if an Optionee's
----------------------
Continuous Status as an Employee or Consultant terminates as a result of his or
her disability, Optionee may exercise the Option to the extent the Option was
vested at the date of such termination, but only within twelve (12) months from
the date of such termination (and in no event later than the expiration date of
the term of such Option as set forth in the Stock Option Agreement). To the
extent that Optionee is not vested in the Option at the date of termination, or
if Optionee does not exercise such Option within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall revert to
the Plan.
9. Death of Optionee. If Optionee's Continuous Status as an Employee or
-----------------
Consultant terminates as a result of the death of Optionee, the vested portion
of the Option may be exercised at any time within twelve (12) months following
the date of death (but in no event later than the date of expiration of the term
of this Option as set forth in Section 10 below) by Optionee's estate or by a
person who acquires the right to exercise the Option by bequest or inheritance.
To the extent that Optionee is not vested in the Option at the date of death, or
if the Option is not exercised within the time specified herein, the Option
shall terminate, and the Shares covered by such Option shall revert to the Plan.
10. Non-Transferability of Option. This Option may not be transferred in
-----------------------------
any manner except by will or by the laws of descent or distribution. It may be
exercised during the lifetime of Optionee only by Optionee. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
11. Term of Option. This Option may be exercised only within the term set
--------------
out in the Notice of Grant.
12. Tax Consequences. Set forth below is a brief summary as of the date
----------------
of this Option of some of the federal and state tax consequences of exercise of
this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
<PAGE>
(i) Exercise of ISO. If this Option qualifies as an ISO, there will
---------------
be no regular federal income tax liability or state income tax liability upon
the exercise of the Option, although the excess, if any, of the Fair Market
Value of the Shares on the date of exercise over the Exercise Price will be
treated as an adjustment to the alternative minimum tax for federal tax purposes
and may subject the Optionee to the alternative minimum tax in the year of
exercise.
(ii) Exercise of ISO Following Disability. If the Optionee's
------------------------------------
Continuous Status as an Employee or Consultant terminates as a result of
disability that is not total and permanent disability as defined in Section
22(e)(3) of the Code, to the extent permitted on the date of termination, the
Optionee must exercise an ISO within 90 days of such termination for the ISO to
be qualified as an ISO.
(iii) Exercise of NSO. There may be a regular federal income tax
---------------
liability and state income tax liability upon the exercise of an NSO. The
Optionee will be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the Fair Market Value
of the Shares on the date of exercise over the Exercise Price. If Optionee is
an Employee, the Company will be required to withhold from Optionee's
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount equal to a percentage of this compensation income at the
time of exercise. If the Optionee is subject to Section 16 of the Securities
Act of 1934, as amended, the date of income recognition may be deferred for up
to six months.
(iv) Disposition of Shares. In the case of an NSO, if Shares are
---------------------
held for the minimum long-term capital gain holding period in effect at the time
of disposition, any gain realized on disposition of the Shares will be treated
as long-term capital gain for federal and state income tax purposes. In the case
of an ISO, if Shares transferred pursuant to the Option are held for the minimum
long-term capital gain holding period in effect at the time of disposition (and
provided such holding period comprises at least one year after exercise of the
Option) and are disposed of at least two years after the Date of Grant, any gain
realized on disposition of the Shares will also be treated as long-term capital
gain for federal and state income tax purposes. If Shares purchased under an ISO
are disposed of after such one-year period following exercise, but before the
expiration of the minimum long-term capital gain holding period in effect at the
time of disposition, then gain realized on such disposition may be taxed as a
short-term capital gain, which may or may not be equivalent to taxation as
compensation income (taxable at ordinary income rates). If Shares purchased
under an ISO are disposed of within such one-year period or within two years
after the Date of Grant, any gain realized on such disposition will be treated
as compensation income to the extent of the difference between the Exercise
Price and the lesser of (1) the Fair Market Value of the Shares on the date of
exercise, or (2) the sale price of the Shares.
(v) Notice of Disqualifying Disposition of ISO Shares. If the
-------------------------------------------------
Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the date one
year after the date of exercise, the Optionee shall immediately notify the
Company in writing of such disposition. Optionee agrees that Optionee may be
subject to
<PAGE>
income tax withholding by the Company on the compensation income recognized by
the Optionee.
SUPPORT.COM, INC.
By:____________________________
Title:_________________________
<PAGE>
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE
OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT AT THE WILL
OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR
ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT
NOTHING IN THIS AGREEMENT, NOR IN THE COMPANY'S 1998 STOCK OPTION PLAN WHICH IS
INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH
RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL
IT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR WITHOUT
CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that he
is familiar with the terms and provisions thereof. Optionee hereby accepts this
Option subject to all of the terms and provisions hereof. Optionee has reviewed
the Plan and this Option in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option and fully understands all
provisions of the Option. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Administrator upon
any questions arising under the Plan or this Option. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
Dated: _____________________ _________________________________
((F1))
Residence Address:
__________________________________
__________________________________
<PAGE>
EXHIBIT A
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
EXERCISE NOTICE
Replicase, Inc.
Attn: President
1816 Embarcadero Road
Palo Alto, CA 94303
1. Exercise of Option. Effective as of today, ____________, 19_, the
------------------
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
______________ shares of the Common Stock (the "Shares") of Replicase, Inc., a
Delaware corporation (the "Company"), under and pursuant to the Amended and
Restated 1998 Stock Option Plan (the "Plan") and the [ ] Incentive [ ]
Nonstatutory Stock Option Agreement dated _____________, 19__ (the "Option
Agreement").
2. Representations of Optionee. Optionee acknowledges that Optionee has
---------------------------
received, read and understood the Plan and the Option Agreement. Optionee agrees
to abide by and be bound by their terms and conditions.
3. Rights as Stockholder. Until the stock certificate evidencing such
---------------------
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such stock certificate promptly
after the Option is exercised. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 11 of the Plan.
Optionee shall enjoy rights as a stockholder until such time as Optionee
disposes of the Shares or the Company and/or its assignee(s) exercises the Right
of First Refusal hereunder. Upon such exercise, Optionee shall have no further
rights as a holder of the Shares so purchased except the right to receive
payment for the Shares so purchased in accordance with the provisions of this
Agreement, and Optionee shall forthwith cause the certificate(s) evidencing the
Shares so purchased to be surrendered to the Company for transfer or
cancellation.
4. Company's Right of First Refusal. Before any Shares held by Optionee
--------------------------------
or any transferee (either being sometimes referred to herein as the "Holder")
may be sold or otherwise transferred (including transfer by gift or operation of
law), the Company or its assignee(s) shall have a right of first refusal to
purchase the Shares on the terms and conditions set forth in this Section (the
"Right of First Refusal").
(a) Notice of Proposed Transfer. The Holder of the Shares shall
---------------------------
deliver to the Company a written notice (the "Notice") stating: (i) the Holder's
bona fide intention to sell or
<PAGE>
otherwise transfer such Shares; (ii) the name of each proposed purchaser or
other transferee ("Proposed Transferee"); (iii) the number of Shares to be
transferred to each Proposed Transferee; and (iv) the bona fide cash price or
other consideration for which the Holder proposes to transfer the Shares (the
"Offered Price"), and the Holder shall offer the Shares at the Offered Price to
the Company or its assignee(s).
(b) Exercise of Right of First Refusal. Within thirty (30) days after
----------------------------------
receipt of the Notice, the Company and/or its assignee(s) may elect in writing
to purchase all, but not less than all, of the Shares proposed to be transferred
to any one or more of the Proposed Transferees. The purchase price will be
determined in accordance with subsection (c) below.
(c) Purchase Price. The purchase price ("Purchase Price") for the
--------------
Shares repurchased under this Section shall be the Offered Price. If the Offered
Price includes consideration other than cash, the cash equivalent value of the
non-cash consideration shall be determined by the Board of Directors of the
Company in good faith.
(d) Payment. Payment of the Purchase Price shall be made, at the
-------
option of the Company or its assignee(s), in cash (by check), by cancellation of
all or a portion of any outstanding indebtedness of the Holder to the Company
(or, in the case of repurchase by an assignee, to the assignee), or by any
combination thereof within 30 days after receipt of the Notice or in the manner
and at the times set forth in the Notice.
(e) Holder's Right to Transfer. If all of the Shares proposed in the
--------------------------
Notice to be transferred to a given Proposed Transferee are not purchased by the
Company and/or its assignee(s) as provided in this Section, then the Holder may
sell or otherwise transfer such Shares to that Proposed Transferee at the
Offered Price or at a higher price, provided that such sale or other transfer is
consummated within 120 days after the date of the Notice and provided further
that any such sale or other transfer is effected in accordance with any
applicable securities laws and the Proposed Transferee agrees in writing that
the provisions of this Section shall continue to apply to the Shares in the
hands of such Proposed Transferee. If the Shares described in the Notice are not
transferred to the Proposed Transferee within such period, a new Notice shall be
given to the Company, and the Company and/or its assignees shall again be
offered the Right of First Refusal as provided herein before any Shares held by
the Holder may be sold or otherwise transferred.
(f) Exception for Certain Family Transfers. Anything to the contrary
--------------------------------------
contained in this Section notwithstanding, the transfer of any or all of the
Shares during the Optionee's lifetime or on the Optionee's death by will or
intestacy to the Optionee's immediate family or a trust for the benefit of the
Optionee's immediate family shall be exempt from the provisions of this Section.
"Immediate Family" as used herein shall mean spouse, lineal descendant or
antecedent, father, mother, brother or sister or stepchild (whether or not
adopted). In such case, the transferee or other recipient shall receive and hold
the Shares so transferred subject to the provisions of this Section, and there
shall be no further transfer of such Shares except in accordance with the terms
of this Section.
<PAGE>
(g) Termination of Right of First Refusal. The Right of First Refusal
-------------------------------------
shall terminate as to any Shares 90 days after the first sale of Common Stock of
the Company to the general public pursuant to a registration statement filed
with and declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
5. Tax Consultation. Optionee understands that Optionee may suffer
----------------
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
6. Restrictive Legends and Stop-Transfer Orders.
--------------------------------------------
(a) Legends. Optionee understands and agrees that the Company shall
-------
cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any certificate(s) evidencing ownership of the Shares together
with any other legends that may be required by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR,
IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE
THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND RIGHT OF FIRST REFUSAL
OPTIONS HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH
IN THE EXERCISE NOTICE BETWEEN THE ISSUER AND THE ORIGINAL
HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON
TRANSFEREES OF THESE SHARES.
(b) Stop-Transfer Notices. Optionee agrees that, in order to ensure
---------------------
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
<PAGE>
(c) Refusal to Transfer. The Company shall not be required (i) to
-------------------
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns. The Company may assign any of its rights under
----------------------
this Agreement to single or multiple assignees, and this Agreement shall inure
to the benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer herein set forth, this Agreement shall be binding upon
Optionee and his or her heirs, executors, administrators, successors and
assigns.
8. Intermetation. Any dispute regarding the interpretation of this
-------------
Agreement shall be submitted by Optionee or by the Company forthwith to the
Company's Board of Directors or the committee thereof that administers the Plan,
which shall review such dispute at its next regular meeting. The resolution of
such a dispute by the Board or committee shall be final and binding on the
Company and on Optionee.
9. Governing Law; Severability. This Agreement shall be governed by and
---------------------------
construed in accordance with the laws of the State of California excluding that
body of law pertaining to conflicts of law. Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable.
10. Notices. Any notice required or permitted hereunder shall be given in
-------
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
11. Further Instruments. The parties agree to execute such further
-------------------
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
12. Delivery of Payment. Optionee herewith delivers to the Company the
-------------------
full Exercise Price for the Shares.
13. Entire Agreement. The Plan and Notice of Grant/Option Agreement are
----------------
incorporated herein by reference. This Agreement, the Plan, the Option
Agreement and the Investment Representation Statement constitute the entire
agreement of the parties and supersede
<PAGE>
in their entirety all prior undertakings and agreements of the Company and
Optionee with respect to the subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: SUPPORT.COM, INC.
_______________________________ By:____________________________
Its:___________________________
Address:
- -------
_______________________________
_______________________________
_______________________________
<PAGE>
EXHIBIT B
---------
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE :
COMPANY : SUPPORT.COM, INC.
SECURITY : COMMON STOCK
AMOUNT :
DATE :
In connection with the purchase of the above-listed Securities, the undersigned
Optionee represents to the Company the following:
(a) Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Optionee acknowledges and understands that the Securities
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Optionee's investment intent as expressed herein. In this connection,
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Optionee's representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. Optionee further understands that the Securities must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. Optionee further
acknowledges and understands that the Company is under no obligation to register
the Securities. Optionee understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel satisfactory to the Company and any other legend required
under applicable state securities laws.
(c) Optionee is familiar with the provisions of Rule 701 and Rule
144, each promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted securities" acquired, directly or
indirectly from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer
<PAGE>
qualifies under Rule 701 at the time of the grant of the Option to the Optionee,
the exercise will be exempt from registration under the Securities Act. In the
event the Company becomes subject to the reporting requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or
such longer period as any market stand-off agreement may require) the Securities
exempt under Rule 701 may be resold, subject to the satisfaction of certain of
the conditions specified by Rule 144, including: (1) the resale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of
certain public information about the Company, (3) the amount of Securities being
sold during any three month period not exceeding the limitations specified in
Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time
of grant of the Option, then the Securities may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the resale
to occur not less than one year after the later of the date the Securities were
sold by the Company or the date the Securities were sold by an affiliate of the
Company, within the meaning of Rule 144; and, in the case of acquisition of the
Securities by an affiliate, or by a non-affiliate who subsequently holds the
Securities less than two years, the satisfaction of the conditions set forth in
sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) Optionee further understands that in the event all of the
applicable requirements of Rule 701 or 144 are not satisfied, registration under
the Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the Staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rules 144 or 701 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk. Optionee understands that no assurances can be given that any
such other registration exemption will be available in such event.
Signature of Optionee:
______________________________________
Dated: __________________, 19__
<PAGE>
EXHIBIT A
---------
SUPPORT.COM, INC.
Amended and Restated 1998 Stock Option Plan
EARLY EXERCISE NOTICE AND RESTRICTED STOCK PURCHASE AGREEMENT
-------------------------------------------------------------
This Agreement ("Agreement") is made as of __________ __, 2000, by and
---------
between Support.com, Inc., a Delaware corporation (the "Company"), and
-------
_____________ ("Purchaser"). To the extent any capitalized terms used in this
---------
Agreement are not defined, they shall have the meaning ascribed to them in the
Amended and Restated 1998 Stock Option Plan.
1. Exercise of Option. Subject to the terms and conditions hereof, Purchaser
------------------
hereby elects to exercise his or her option to purchase ____________ shares of
the Common Stock (the "Shares") of the Company under and pursuant to the
------
Company's Amended and Restated 1998 Stock Option Plan (the "Plan") and the Stock
----
Option Agreement dated ____________ (the "Option Agreement"). Of these Shares,
----------------
Purchaser has elected to purchase ____________ of those Shares which have become
vested as of the date hereof under the Vesting Schedule set forth in the Notice
of Stock Option Grant (the "Vested Shares") and ____________ Shares which have
-------------
not yet vested under such Vesting Schedule (the "Unvested Shares"). The purchase
---------------
price for the Shares shall be $____________ per Share for a total purchase price
of $ ____________. The term "Shares" refers to the purchased Shares and all
securities received in replacement of the Shares or as stock dividends or
splits, all securities received in replacement of the Shares in a
recapitalization, merger, reorganization, exchange or the like, and all new,
substituted or additional securities or other properties to which Purchaser is
entitled by reason of Purchaser's ownership of the Shares.
2. Time and Place of Exercise. The purchase and sale of the Shares under
--------------------------
this Agreement shall occur at the principal office of the Company simultaneously
with the execution and delivery of this Agreement in accordance with the
provisions of Section 2(b) of the Option Agreement. On such date, the Company
will deliver to Purchaser a certificate representing the Shares to be purchased
by Purchaser (which shall be issued in Purchaser's name) against payment of the
purchase price therefor by Purchaser by (a) check made payable to the Company,
(b) cancellation of indebtedness of the Company to Purchaser, (c) delivery of
shares of the Common Stock of the Company in accordance with Section 3 of the
Option Agreement, or (d) by a combination of the foregoing.
3. Limitations on Transfer. In addition to any other limitation on transfer
-----------------------
created by applicable securities laws, Purchaser shall not assign, encumber or
dispose of any interest in the Shares while the Shares are subject to the
Company's Repurchase Option (as defined below), except as provided below. After
any Shares have been released from such Repurchase Option, Purchaser shall not
assign, encumber or dispose of any interest in such Shares except in compliance
with the provisions below and applicable securities laws.
(a) Repurchase Option.
-----------------
A-1
<PAGE>
(i) In the event of the voluntary or involuntary termination of
Purchaser's employment or consulting relationship with the Company for any
reason (including death or disability), with or without cause, the Company shall
upon the date of such termination (the "Termination Date") have an irrevocable,
----------------
exclusive option (the "Repurchase Option") for a period of 60 days from such
-----------------
date to repurchase all or any portion of the Unvested Shares held by Purchaser
as of the Termination Date which have not yet been released from the Company's
Repurchase Option at the original purchase price per Share specified in Section
1 (adjusted for any stock splits, stock dividends and the like).
(i) The Repurchase Option shall be exercised by the Company by
written notice to Purchaser or Purchaser's executor and, at the Company's
option, (A) by delivery to Purchaser or Purchaser's executor with such notice of
a check in the amount of the purchase price for the Shares being purchased, or
(B) in the event Purchaser is indebted to the Company, by cancellation by the
Company of an amount of such indebtedness equal to the purchase price for the
Shares being repurchased, or (C) by a combination of (A) and (B) so that the
combined payment and cancellation of indebtedness equals such purchase price.
Upon delivery of such notice and payment of the purchase price in any of the
ways described above, the Company shall become the legal and beneficial owner of
the Shares being repurchased and all rights and interest therein or related
thereto, and the Company shall have the right to transfer to its own name the
number of Shares being repurchased by the Company, without further action by
Purchaser.
(ii) One hundred percent (100%) of the Unvested Shares shall
initially be subject to the Repurchase Option. The Unvested Shares shall be
released from the Repurchase Option in accordance with the Vesting Schedule set
forth in the Notice of Stock Option Grant until all Shares are released from the
Repurchase Option. Fractional shares shall be rounded to the nearest whole
share.
(b) Right of First Refusal. Before any Shares held by Purchaser or
----------------------
any transferee of Purchaser (either being sometimes referred to herein as the
"Holder") may be sold or otherwise transferred (including transfer by gift or
operation of law), the Company or its assignee(s) shall have a right of first
refusal to purchase the Shares on the terms and conditions set forth in this
Section 3(b) (the "Right of First Refusal").
----------------------
(i) Notice of Proposed Transfer. The Holder of the Shares shall
---------------------------
deliver to the Company a written notice (the "Notice") stating: (i) the Holder's
------
bona fide intention to sell or otherwise transfer such Shares; (ii) the name of
each proposed purchaser or other transferee ("Proposed Transferee"); (iii ) the
number of Shares to be transferred to each Proposed Transferee; and (iv) the
-------------------
terms and conditions of each proposed sale or transfer. The Holder shall offer
the Shares at the same price (the "Offered Price") and upon the same terms (or
-------------
terms as similar as reasonably possible) to the Company or its assignee(s).
(ii) Exercise of Right of First Refusal. At any time within
----------------------------------
thirty (30) days giving written notice to the Holder, elect to purchase all, but
not less than all, of the Shares proposed to be transferred to any one or more
of the Proposed Transferees, at the purchase price determined in accordance with
subsection (iii) below.
A-2
<PAGE>
(iii) Purchase Price. The purchase price ("Purchase Price") for
-------------- --------------
the Shares purchased by the Company or its assignee(s) under this Section 3(b)
shall be the Offered Price. If the Offered Price includes consideration other
than cash, the cash equivalent value of the non-cash consideration shall be
determined by the Board of Directors of the Company in good faith.
(iv) Payment. Payment of the Purchase Price shall be made, at
-------
the option of the Company or its assignee(s), in cash (by check), by
cancellation of all or a portion of any outstanding indebtedness of the Holder
to the Company (or, in the case of repurchase by an assignee, to the assignee),
or by any combination thereof within 30 days after receipt of the Notice or in
the manner and at the times set forth in the Notice.
(v) Holder's Right to Transfer. If all of the Shares proposed in
--------------------------
Notice to be transferred to a given Proposed Transferee are not purchased by the
Company and/or its assignee(s) as provided in this Section 3(b), then the Holder
may sell or otherwise transfer such Shares to that Proposed Transferee at the
Offered Price or at a higher price, provided that such sale or other transfer is
consummated within 60 days after the date of the Notice and provided further
that any such sale or other transfer is effected in accordance with any
applicable securities laws and the Proposed Transferee agrees in writing that
the provisions of this Section 3 shall continue to apply to the Shares in the
hands of such Proposed Transferee. If the Shares described in the Notice are not
transferred to the Proposed Transferee within such period, or if the Holder
proposes to change the price or other terms to make them more favorable to the
Proposed Transferee, a new Notice shall be given to the Company, and the Company
and/or its assignees shall again be offered the Right of First Refusal before
any Shares held by the Holder may be sold or otherwise transferred.
(vi) Exception for Certain Family Transfers. Anything to the
--------------------------------------
contrary contained in this Section 3(b) notwithstanding, the transfer of any or
all of the Shares during Purchaser's lifetime or on Purchaser's death by will or
intestacy to Purchaser's immediate family or a trust for the benefit of
Purchaser's immediate family shall be exempt from the provisions of this Section
3(b). "Immediate Family" as used herein shall mean spouse, lineal descendant or
----------------
antecedent, father, mother, brother or sister. In such case, the transferee or
other recipient shall receive and hold the Shares so transferred subject to the
provisions of this Section, and there shall be no further transfer of such
Shares except in accordance with the terms of this Section 3.
(c) Involuntary Transfer.
--------------------
(i) Company's Right to Purchase upon Involuntary Transfer. In the
-----------------------------------------------------
event, at any time after the date of this Agreement, of any transfer by
operation of law or other involuntary transfer (including death or divorce, but
excluding a transfer to Immediate Family as set forth in Section 3(b)(vi) above)
of all or a portion of the Shares by the record holder thereof, the Company
shall have an option to purchase all of the Shares transferred at the greater of
the purchase price paid by Purchaser pursuant to this Agreement or the fair
market value of the Shares on the date of transfer. Upon such a transfer, the
person acquiring the Shares shall promptly notify the Secretary of the Company
of such transfer. The right to purchase such
A-3
<PAGE>
Shares shall be provided to the Company for a period of thirty (30) days
following receipt by the Company of written notice by the person acquiring the
Shares.
(ii) Price for Involuntary Transfer. With respect to any stock to
------------------------------
be transferred pursuant to Section 3(c)(i), the price per Share shall be a price
set by the Board of Directors of the Company that will reflect the current value
of the stock in terms of present earnings and future prospects of the Company.
The Company shall notify Purchaser or his or her executor of the price so
determined within thirty (30) days after receipt by it of written notice of the
transfer or proposed transfer of Shares. However, if the Purchaser does not
agree with the valuation as determined by the Board of Directors of the Company,
the Purchaser shall be entitled to have the valuation determined by an
independent appraiser to be mutually agreed upon by the Company and the
Purchaser and whose fees shall be borne equally by the Company and the
Purchaser.
(d) Assignment. The right of the Company to purchase any part of the
----------
Shares may be assigned in whole or in part to any shareholder or shareholders of
the Company or other persons or organizations; provided, however, that an
-------- -------
assignee, other than a corporation that is the parent or a 100% owned subsidiary
of the Company, must pay the Company, upon assignment of such right, cash equal
to the difference between the original purchase price and fair market value, if
the original purchase price is less than the fair market value of the Shares
subject to the assignment.
(e) Restrictions Binding on Transferees. All transferees of Shares or
-----------------------------------
any interest therein will receive and hold such Shares or interest subject to
the provisions of this Agreement, including, insofar as applicable, the
Company's option to repurchase under Section 3(a). Any sale or transfer of the
Company's Shares shall be void unless the provisions of this Agreement are
satisfied.
(f) Termination of Rights. The right of first refusal granted the
---------------------
Company by Section 3(b) above and the option to repurchase the Shares in the
event of an involuntary transfer granted the Company by Section 3(c) above shall
terminate upon the first sale of Common Stock of the Company to the general
public pursuant to a registration statement filed with and declared effective by
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"). Upon termination of the right of first refusal
--------------
described in Section 3(b) and the expiration or exercise of the Company's
repurchase option described in Section 3(a) above, a new certificate or
certificates representing the Shares not repurchased shall be issued, on
request, without the legend referred to in Section 6(a)(ii) herein and delivered
to Purchaser.
4. Escrow of Unvested Shares. For purposes of facilitating the enforcement
-------------------------
of the provisions of Section 3 above, Purchaser agrees, immediately upon receipt
of the certificate(s) for the Shares subject to the Company's Repurchase Option
described in Section 3(a), to deliver such certificate(s), together with an
Assignment Separate from Certificate in the form attached to this Agreement as
Attachment A executed by Purchaser and by Purchaser's spouse (if required for
- ------------
transfer), in blank, to the Secretary of the Company, or the Secretary's
designee, to hold such certificate(s) and Assignment Separate from Certificate
in escrow and to take all such actions and to effectuate all such transfers
and/or releases as are in accordance with the terms of this
A-4
<PAGE>
Agreement. Purchaser hereby acknowledges that the Secretary of the Company, or
the Secretary's designee, is so appointed as the escrow holder with the
foregoing authorities as a material inducement to make this Agreement and that
said appointment is coupled with an interest and is accordingly irrevocable.
Purchaser agrees that said escrow holder shall not be liable to any party hereof
(or to any other party). The escrow holder may rely upon any letter, notice or
other document executed by any signature purported to be genuine and may resign
at any time. Purchaser agrees that if the Secretary of the Company, or the
Secretary's designee, resigns as escrow holder for any or no reason, the Board
of Directors of the Company shall have the power to appoint a successor to serve
as escrow holder pursuant to the terms of this Agreement.
5. Investment and Taxation Representations. In connection with the purchase
---------------------------------------
of the Shares, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the securities.
Purchaser is purchasing these securities for investment for his or her own
account only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act.
(b) Purchaser understands that the securities have not been
registered under the Securities Act by reason of a specific exemption therefrom,
which exemption depends upon, among other things, the bona fide nature of
Purchaser's investment intent as expressed herein.
(c) Purchaser understands that the Shares are "restricted securities"
under applicable U.S. federal and state securities laws and that, pursuant to
these laws, Purchaser must hold the Shares indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. Purchaser acknowledges that the Company has no
obligation to register or qualify the Shares for resale. Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Shares,and
requirements relating to the Company which are outside of the Purchaser's
control, and which the Company is under no obligation and may not be able to
satisfy.
(d) Purchaser understands that Purchaser may suffer adverse tax
consequences as a result of Purchaser's purchase or disposition of the Shares.
Purchaser represents that Purchaser has consulted any tax consultants Purchaser
deems advisable in connection with the purchase or disposition of the Shares and
that Purchaser is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders.
--------------------------------------------
(a) Legends. The certificate or certificates representing the Shares
shall bear the following legends (as well as any legends required by
applicable state and federal corporate and securities laws):
(i) THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED
A-5
<PAGE>
UNDER THE SECURITIES ACT OF 1933, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION
OF COUNSEL IN A FORM SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933.
(ii) THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND RIGHT OF FIRST REFUSAL
OPTIONS HELD BY THE ISSUER OR ITS
ASSIGNEE(S) AS SET FORTH IN THE EXERCISE
NOTICE BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF
WHICH MAY BE OBTAINED AT THE PRINCIPAL
OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS AND RIGHT OF FIRST REFUSAL
ARE BINDING ON TRANSFEREES OF THESE
SHARES.
(b) Stop-Transfer Notices. Purchaser agrees that, in order to ensure
---------------------
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be required (i) to
-------------------
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
7. No Employment Rights. Nothing in this Agreement shall affect in any
--------------------
manner whatsoever the right or power of the Company, or a parent or subsidiary
of the Company, to terminate Purchaser's employment, for any reason, with or
without cause.
8. Section 83(b) Election. Purchaser understands that Section 83(a) of the
----------------------
of 1986, as amended (the "Code"), taxes as ordinary income for a nonstatutory
----
stock option and as alternative minimum taxable income for an incentithe
difference between the amount paid for the Shares and the fair market value of
the Shares as of the date any restrictions on the Shares lapse. In this context,
"restriction" means the right of the Company to buy back the Shares pursuant to
-----------
the Repurchase Option set forth in Section 3(a) of this Agreement. Purchaser
understands that Purchaser may elect to be taxed at the time the Shares are
purchased, rather than when and as the Repurchase Option expires, by filing an
A-6
<PAGE>
election under Section 83(b) (an "83(b) Election") of the Code with the
--------------
InternalRevenue Service within 30 days from the date of purchase. Even if the
fair market value of the Shares at the time of the execution of this Agreement
equals the amount paid for the Shares, the election must be made to avoid income
and alternative minimum tax treatment under Section 83(a) in the future.
Purchaser understands that failure to file such an election in a timely manner
may result in adverse tax consequences for Purchaser. Purchaser further
understands that an additional copy of such election form should be filed with
his or her federal income tax return for the calendar year in which the date of
this Agreement falls. Purchaser acknowledges that the foregoing is only a
summary of the effect of United States federal income taxation with respect to
purchase of the Shares hereunder, and does not purport to be complete. Purchaser
further acknowledges that the Company has directed Purchaser to seek independent
advice regarding the applicable provisions of the Code, the income tax laws of
any municipality, state or foreign country in which Purchaser may reside, and
the tax consequences of Purchaser's death.
Purchaser agrees that he or she will execute and deliver to the Company with
this executed Agreement a copy of the Acknowledgment and Statement of Decision
Regarding Section 83(b) Election (the "Acknowledgment") attached hereto as
--------------
Attachment B. Purchaser further agrees that he or she will execute and submit
- ------------
with the Acknowledgment a copy of the 83(b) Election attached hereto as
Attachment C if Purchaser has indicated in the Acknowledgment his or her
- ------------
decision to make such an election.
9. Market Stand-off Agreement. In connection with the initial public
--------------------------
offering of the Company's securities and upon request of the Company or the
underwriters managing any underwritten offering of the Company's securities,
Purchaser agrees not to sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any Shares (other than those included
in the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 180
days) from the effective date of such registration as may be requested by the
Company or such managing underwriters and to execute an agreement reflecting the
foregoing as may be requested by the underwriters at the time of the public
offering.
10. Miscellaneous.
-------------
(a) Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto and the rights and obligations of the parties hereto shall be
governed construed and interpreted in accordance with the laws of the of
California, without giving effect to principles of conflicts of law.
(b) Entire Agreement; Enforcement of Rights. This Agreement sets
---------------------------------------
forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the parties
to this Agreement. The failure by either party to enforce any rights under this
Agreement shall not be construed as a waiver of any rights of such party.
(c) Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith.
A-7
<PAGE>
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
(d) Construction. This Agreement is the result of negotiations
------------
between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Agreement shall be deemed to be the product
of all of the parties hereto, and no ambiguity shall be construed in favor of or
against any one of the parties hereto.
(e) Notices. Any notice required or permitted by this Agreement
-------
shall be in writing and shall be deemed sufficient when delivered personally or
sent by telegram or fax or forty-eight (48) hours after being deposited in the
U.S. mail, as certified or registered mail, with postage prepaid, and addressed
to the party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
(f) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(g) Successors and Assigns. The rights and benefits of this
----------------------
Agreement shall inure to the benefit of, and be enforceable by the Company's
successors and assigns. The rights and obligations of Purchaser under this
Agreement may only be assigned with the prior written consent of the Company.
(h) California Corporate Securities Law. THE SALE OF THE SECURITIES
-----------------------------------
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON THE QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
[Signature Page Follows]
A-8
<PAGE>
The parties have executed this Agreement as of the date first set forth above.
COMPANY:
SUPPORT.COM, INC.
By: __________________________
Name:_________________________
(print)
Title:________________________
PURCHASER:
[name]
______________________________
(Signature)
______________________________
(Print Name)
Address:
______________________________
______________________________
I, ______________________, spouse of [name], have read and hereby approve the
foregoing Agreement. In consideration of the Company's granting my spouse the
right to purchase the Shares as set forth in the Agreement, I hereby agree to be
irrevocably bound by the Agreement and further agree that any community property
or other such interest shall hereby by similarly bound by the Agreement. I
hereby appoint my spouse as my attorney-in-fact with respect to any amendment or
exercise of any rights under the Agreement.
_____________________________
[name]
A-9
<PAGE>
ATTACHMENT A
------------
ASSIGNMENT SEPARATE FROM CERTIFICATE
------------------------------------
FOR VALUE RECEIVED and pursuant to that certain Early Exercise Notice and
Restricted Stock Purchase Agreement between the undersigned ("Purchaser") and
--------
Support.com, Inc., dated _____________, 2000 (the "Agreement"), Purchaser hereby
---------
sells, assigns and transfers unto _______________________________ (________)
shares of the Common Stock of Support.com, Inc., standing in Purchaser's name on
the books of said corporation represented by Certificate No. ___ herewith and
hereby irrevocably appoints _____________________________ to transfer said stock
on the books of the within-named corporation with full power of substitution in
the premises. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT
AND THE ATTACHMENTS THERETO.
Dated: __________ __, 2000.
Signature:________________________
[name]
__________________________________
Spouse of [name] (if applicable)
Instruction: Please do not fill in any blanks other than the signature line.
The purpose of this assignment is to enable the Company to exercise its
Repurchase Option set forth in the Agreement without requiring additional
signatures on the part of Purchaser.
Att. A-1
<PAGE>
ATTACHMENT B
------------
ACKNOWLEDGMENT AND STATEMENT OF DECISION
----------------------------------------
REGARDING SECTION 83(b) ELECTION
--------------------------------
The undersigned (which term includes the undersigned's spouse), a purchaser of
_________ shares of Common Stock of Support.com, Inc. (the "Company") by
-------
exercise of an option (the "Option") granted pursuant to the Company's 1998
------
Stock Option Plan (the "Plan"), hereby states as follows:
----
1. The undersigned acknowledges receipt of a copy of the Plan relating to
the offering of such shares. The undersigned has carefully reviewed the Plan and
the option agreement pursuant to which the Option was granted.
2. The undersigned either [check and complete as applicable]:
(a) ____ has consulted, and has been fully advised by, the
undersigned's own tax advisor,
_____________________________________, whose business
address is ______________________________, regarding the
federal, state and local tax consequences of purchasing
shares under the Plan, and particularly regarding the
advisability of making elections pursuant to Section
83(b) of the Internal Revenue Code of 1986, as amended
(the "Code") and pursuant to the corresponding
provisions, if any, of applicable state law; or
(b)____ has knowingly chosen not to consult such a tax advisor.
3. The undersigned hereby states that the undersigned has decided [check as
applicable]:
(a)____ to make an election pursuant to Section 83(b) of the
Code, and is submitting to the Company, together with
the undersigned's executed Early Exercise Notice and
Restricted Stock Purchase Agreement, an executed form
entitled "Election Under Section 83(b) of the Internal
Revenue Code of 1986;" or
(b)____ not to make an election pursuant to Section 83(b) of the
Code.
4. Neither the Company nor any subsidiary or representative of the Company
has made any warranty or representation to the undersigned with respect to the
tax consequences of the undersigned's purchase of shares under the Plan or of
the making or failure to make an election pursuant to Section 83(b) of the Code
or the corresponding provisions, if any, of applicable state law.
Date:________________________ ____________________________
[name]
Date:________________________ ____________________________
Spouse of [name]
Att. B-2
<PAGE>
ATTACHMENT C
------------
ELECTION UNDER SECTION 83(b)
----------------------------
OF THE INTERNAL REVENUE CODE OF 1986
------------------------------------
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, to include in taxpayer's income for the current taxable
year, the amount of any compensation taxable to taxpayer in connection with
taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of
the undersigned are as follows:
NAME OF TAXPAYER: [name]
NAME OF SPOUSE: ________________________
ADDRESS: ________________________
________________________
IDENTIFICATION NO. OF TAXPAYER: _______________
IDENTIFICATION NO. OF SPOUSE: _______________
TAXABLE YEAR: 2000
2. The property with respect to which the election is made is described as
follows:
__________ shares of the Common Stock of Support.com, Inc.(the "Company").
-------
3. The date on which the property was transferred is: __________ __, 2000
4. The property is subject to the following restrictions:
Repurchase option at cost in favor of the Company upon termination of
taxpayer's employment or consulting relationship.
5. The fair market value at the time of transfer, determined without regard
to any restriction other than a restriction which by its terms will never lapse,
of such property is: $__________
6. The amount (if any) paid for such property: $ _____________
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
- --------------------------------------------------------------------------
except with the consent of the Commissioner.
- -------------------------------------------
Dated:__________________________ ____________________________
[name]
Dated:__________________________ ____________________________
Spouse of [name]
Att. C-1
<PAGE>
RECEIPT AND CONSENT
-------------------
The undersigned hereby acknowledges receipt of a photocopy of Certificate
No. ______ for ________ shares of Common Stock of Support.com, Inc. (the
"Company").
- --------
The undersigned further acknowledges that the Secretary of the Company, or
his or her designee, is acting as escrow holder pursuant to the Early Exercise
Notice and Restricted Stock Purchase Agreement Purchaser has previously entered
into with the Company. As escrow holder, the Secretary of the Company, or his
or her designee, holds the original of the aforementioned certificate issued in
the undersigned's name.
Dated:___________________________ ___________________________
[name]
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
[LOGO OF SUPPORT.COM]
Agreement Number: GEN012900
EXHIBIT 10.17
Licensee Information
<TABLE>
<CAPTION>
<S> <C> <C>
Licensee: General Electric Company Contact: Kevin Hofmann
- -----------------------------------------------------------------------------------------------
Address: 3135 Easton Turnpike, Fairfield, CT 06431 Phone: (203) 373-***
- -----------------------------------------------------------------------------------------------
Email: [email protected] Fax: (203) 373-***
- -----------------------------------------------------------------------------------------------
</TABLE>
ENTERPRISE LICENSE AGREEMENT
This License Agreement ("Agreement") is entered into as of February 17, 2000
(the "Effective Date") by and between Support.com, Inc., with offices at 575
Broadway, Redwood City, CA 94063 ("Support.com") and General Electric Company,
with offices at 3135 Easton Turnpike, Fairfield, CT 06431 ("GE"), and sets forth
the terms and conditions under which Support.com agrees to license software to
GE.
1. DEFINITIONS
-----------
1.1 "Computer(s)" shall mean all computing devices owned, leased, rented or
controlled by GE.
1.2 "Confidential Information" shall mean the GE Confidential Information or
the Support.com Confidential Information, as the case may be, as used in Section
4. hereof.
1.3 "Documentation" shall mean the instructions and/or end-user manuals that
describe installation, use, and/or operation of the Software which is provided
to GE along with the Software.
1.4 "Employee" shall mean any employee of GE or an individual independent
contractor using the Software in the course of performing services on behalf of
GE and for whom GE remains responsible.
1.5 "Enterprise License" shall mean the license grant which, subject to the
terms and conditions herein, allows any Employee to access and use the Software,
without limitation as to the number of Employees who may concurrently access and
- ------------------
use the Software. As such, subject to the terms of the Agreement, the
Enterprise License shall grant access and use to an unlimited number of
simultaneous Employee-users, with no limitation on the number of copies which
may be made by GE of the Software.
1.6 "GE" shall mean General Electric Company and any subsidiary, affiliate, or
other worldwide entity (i) which General Electric Company consolidates into its
audited financial statements and, (ii) upon consent from Support.com (which
consent shall not be unreasonably withheld), in which General Electric has at
least *** percent (***%) ownership; provided that (A) each such subsidiary,
affiliate, or entity is not a competitor of Support.com and (B) General Electric
Company shall remain responsible for compliance with this Agreement by each such
subsidiary, entity, and affiliate.
1.7 "GE Business" shall mean an individual operating business or division of
GE, which operating divisions at the time of this Agreement include: GE Aircraft
Engines, GE Appliances, GE Capital Services, GE Industrial Systems, GE
Information Services, GE Lighting, GE Medical Systems, GE Motors, GE Plastics,
GE Supply, GE Transportation Systems, NBC and GE Corporate (which includes GE
Corporate Research & Development, and all other Corporate and support components
which components provide, among other things, international trade support,
market development, licensing and investments for various GE businesses).
1.8 "GE Confidential Information" shall mean all information identified by GE
as confidential or proprietary and disclosed by GE to Support.com which relates
to GE's past, present or future research, development, business activities and
Help Desk and e-Commerce programs including, but not limited to GE's Help Desk
and e-Commerce training programs and collateral materials, and GE's Help Desk
and e-Commerce project cases, compilations thereof, and associated knowledge
bases. GE Confidential Information shall include (1) any unannounced product(s)
or service(s) of GE; (2) the terms, conditions and subject matter of this
Agreement and any related contract documents; and (3) any other GE information
or materials provided to Support.com and designated by GE as confidential. GE
Confidential Information will not be deemed to include information that is (i)
publicly available or becomes so in the future without restriction, other than
as a breach of this Agreement by Support.com, (ii) rightfully received by
Support.com from third parties and not accompanied by confidentiality
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
obligations, (iii) already in Support.com's possession and lawfully received
from sources other than GE, (iv) approved for release or disclosure without
restriction by GE in writing or (v) independently developed by Support.com
without the use of any GE Confidential Information.
1.9 "Network" shall mean an aggregation of devices, any of which may perform
the functions of computation, data storage, and/or data communications, and
which are interconnected by cable or wireless communications means so as to
permit the passage of machine-readable information among two or more such
devices; Network shall include without limitation any publicly accessible
communications systems capable of data and/or voice communications, which
systems may be generally known as the Internet, the World Wide Web, or other
designation.
1.10 "Non-Production Use" shall mean any use or installation of the Software for
failover, disaster recovery, development, staging, technology integration,
testing, and/or other such purposes, by GE Employees. GE shall not be subject
to any requirement by Support.com to pay fees for Support Services on a per use
or installation basis, provided that there shall be a requirement that such fees
shall be applicable to at least one instance of an Operational deployment in
cases where a GE Business is undertaking any such Non-Production Use or
installation of the Software and does not yet otherwise have an Operational
deployment in place and GE seeks the benefit of Support Services.
1.11 "Operational" shall mean, under the Enterprise License, for the Software
installations, only those installations of Software which are deployed for
operational ("production") use in support of GE and only such Operational
Software shall be subject to optional, annual fees for Support Services under
the Agreement.
1.12 "Product Upgrade" shall mean a successor version of the Software that is
an eSupport solution made generally available to GE in accordance with Exhibit A
---------
hereof. Subject to the terms and conditions hereof, Product Upgrades shall
include, for example, the following:
(a) changes in the one's, tenth's, hundredth's, or after hundredth's digit of
the Software version number;
(b) successor version(s) of the Software that incorporates corrections,
upgrades and/or enhancements to the Software, whether or not such
corrections, upgrades and/or enhancements are marketed separately by
Support.com;
(c) migration from one operating system to another prescribed by Support.com;
(d) migration from 32-bit Software to 64-bit Software;
(e) migration from one platform generation to the next platform generation of
Software;
(f) migration by Support.com of Software from one localized language (e.g.:
U.S. English) to any other localized language (e.g.: German) to the extent
that Support.com has made such migration available to other licensed users
of the Software; and
(g) new releases containing increased Software functionality derived from the
Software (whether marketed separately or as part of a more comprehensive
release).
If Support.com removes a feature or function from the Software that existed as
of the Effective Date of this Agreement, or which resulted from a Product
Upgrade during the term of this Agreement, and Support.com then distributes the
removed feature or function as a stand-alone or other product, then such new
stand alone product shall be deemed to be a Product Upgrade for purposes of this
Agreement. If Support.com develops a successor product with incremental
improvements to the Software with similar functionality and Support.com then
distributes the successor product, then such successor product will be
considered a Product Upgrade. However, if Support.com develops other Software
products outside the eSupport solutions, it shall be at Support.com's discretion
as to whether or not the other software products are distributed as a Product
Upgrade.
Support.com expressly acknowledges and agrees that it is GE's intent, by virtue
of this Agreement, to license all current Support.com eSupport solutions
identified in Exhibit A for GE Businesses globally, and the parties acknowledge
---------
that any future derivatives of current Software and technologies will be
provided to GE as outlined above. Notwithstanding Support.com's obligation to
provide Product Upgrades, both parties acknowledge eSupport solutions are still
evolving, therefore for a period of *** months from the Effective Date
("Technology Subscription Period"), Support.com will provide all of its non-
third party internally developed eSupport solutions (as listed on a certain
document dated February 15, 2000, entitled "Product Enhancements" and signed by
Radha Basu which is hereby incorporated by reference and made an integral part
of this Agreement) that are made generally available and *** the *** of Product
Upgrades to GE if and when Support.com develops such product.
1.13 "Site" shall mean one or more buildings or
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
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portion(s) thereof that are located within an area defined by a ten mile radius,
and are i) used in the conduct of GE business, and ii) are under control within
GE's organizational structure.
1.14 "Software" shall mean as of the Effective Date of this Agreement the
products designated on Exhibit A, including all related Documentation, and
---------
modifications thereof, and received by GE from Support.com pursuant to this
Agreement. In the event GE is current under Support Services, "Software" shall
also include Product Updates within eSupport solutions that were provided to GE
during the Technology Subscription Period. Software also includes all Product
Upgrades in accordance with Exhibit C.
---------
1.15 "Support.com Confidential Information" shall mean Support.com's Software,
Documentation, discoveries, ideas, concepts, know-how, techniques, designs,
specifications, drawings, blueprints, tradings, diagrams, models, samples, flow
charts, data, computer programs, disks, diskettes, tapes, marketing plans,
prospect names, customer names, and other technical, financial or business
information, whether regarding the past, present, or future. Support.com
Confidential Information shall include (1) any unannounced product(s) or
service(s) of Support.com; (2) the terms, conditions and subject matter of this
Agreement and any related contract documents; and (3) any other Support.com
information or materials provided to GE and designated by Support.com as
confidential. Support.com Confidential Information will not be deemed to
include information that is (i) publicly available or becomes so in the future
without restriction, other than as a breach of this Agreement by GE, (ii)
rightfully received by GE from third parties and not accompanied by
confidentiality obligations, (iii) already in GE's possession and lawfully
received from sources other than Support.com, (iv) approved for release or
disclosure without restriction by Support.com in writing or (v) independently
developed by GE without the use of any Support.com Confidential Information.
1.16 "Support Services" shall mean the software maintenance and technical
support services performed by Support.com for GE hereunder, as described in
Exhibit C attached hereto.
- ---------
1.17 "Third Parties" shall mean customers and suppliers of GE.
2. SCOPE OF THIS AGREEMENT
-----------------------
This Agreement shall apply to GE wherever situated (subject to Section 17), and
Software may be used by GE and its officers and Employees engaged in work on
behalf of GE, whether on or off premises, worldwide (subject to Section 17).
This Agreement shall also allow GE to install the Healing Agent component of the
Software on GE Computers which may be located at Third Parties' premises
provided that (i) GE restricts usage of the Software to activities related to
business between GE and such Third Party and/or in conjunction with services
being provided to GE by such Third Party for GE's benefit, and (ii) the Software
is used in accordance with the terms of this Agreement and GE remains
responsible for compliance with this Agreement by such Third Parties as long as
such Third Parties use is as contemplated by the Parties and within the scope of
control of GE as reasonably contemplated by this Agreement. Notwithstanding,
Support.com acknowledges that the Software may also be accessed incidentally by
any end user in the world while obtaining application services from GE provided
that such end user does not install or download any component of the Software.
3. LICENSE
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3.1 License Grants.
---------------
(a) In consideration of payment made by GE to Support.com pursuant to Exhibit A
--------
of this Agreement, Support.com grants and agrees to grant GE, subject to the
terms and conditions contained herein, a non-exclusive, perpetual, limited, non-
transferable (except as set forth herein), worldwide Enterprise License to use
and/or reproduce the Software on GE Computers and GE Networks under the terms of
this Agreement.
(b) Support.com hereby grants and agrees to grant to GE a non-exclusive license
to reproduce (completely and accurately) and install, subject the terms of this
Agreement, the Software specified in Exhibit A. GE shall have the right subject
---------
to Section 17, to reproduce and install such Software on Computers and Networks
in GE's United States and worldwide sites.
(c) Support.com additionally grants to GE a non-exclusive right to reproduce
and install copies of the appropriate Software on GE Computer(s) located in the
home(s) of, and/or carried and used on a portable basis by, Employees of GE,
provided that any such Employee uses such Software on such home or portable
Computer substantially in fulfillment of GE employment duties.
(d) GE may make reasonable copies of the Software and Documentation for back-up
and archival purposes in accordance with applicable law. GE shall reproduce the
Software and Documentation accurately and include all original copyright and
trademark notices, claims of confidentiality, or trade secrets, and other
proprietary rights notices on all back-up or archival copies. Any copies that GE
makes of the Software or Documentation, in whole or
3
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in part, are Support.com's sole property.
3.2 Restrictions
------------
(a) GE agrees not to reverse engineer, decompile, disassemble, extract or
otherwise derive, the source code and any other ideas, algorithms or procedures
from the Software or Documentation for any reason, except to the extent that
Support.com is not permitted by such applicable law to exclude or limit such
rights. Information relating to the Software which is necessary to enable the
production of software which is interoperable or compatible with the Software or
other software may be available from Support.com upon written request.
(b) GE agrees to reproduce the Software and Documentation accurately and
include Support.com's original copyright and trademark notices, claims of
confidentiality or trade secrets, and other proprietary rights notices on any
copies of the Software and Documentation, including partial copies.
(c) Except to the extent expressly authorized herein or in the Documentation,
GE agrees not to modify or create a derivative work of any part of the Software.
3.3 Intentionally omitted.
----------------------
3.4 Intentionally omitted.
----------------------
3.5 Acquisitions by GE. If GE acquires another entity or part of another
------------------
entity (either, an "Acquired Entity"), such Acquired Entity shall be considered
GE hereunder and bound by the terms hereof and the Software license fee paid by
GE hereunder shall not be adjusted in light of such acquisition during the term
of this Agreement, provided that the Acquired Entity meets the definition of
"GE" as set forth in Section 1.
3.6 Title. Subject only to the license granted pursuant to this Agreement,
-----
Support.com shall retain all right, title and interest, including all copyrights
and trademarks, in and to the Software.
3.7 Extension of License Rights. At the sole option and discretion of GE, upon
---------------------------
written notice thereof to Support.com, the provisions of this Agreement shall
supersede the provisions of any other agreement in effect as of the Effective
Date of this Agreement between GE and Support.com.
4. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
-----------------------------------------
All Confidential Information furnished under this Agreement by the party
disclosing such Confidential Information (the "Disclosing Party") to the party
receiving the Confidential Information (the "Receiving Party") shall remain the
property of the Disclosing Party and/or its licensors. The Disclosing Party's
Confidential Information may be disclosed to Receiving Party visually, orally,
in machine-readable form, or in writing (including graphic material). When
disclosed in machine-readable form or writing, the Confidential Information
shall be labeled "Confidential" or otherwise appropriately as to indicate its
confidential nature. When disclosed visually or orally, the Confidential
Information shall be identified as Confidential Information at the time of
initial disclosure. The Receiving Party shall label clearly as "[Disclosing
Party's Name] Confidential" all Confidential Information reduced by Receiving
Party to machine readable form or writing as a result of such disclosures by
Disclosing Party.
Support.com and GE agree that each party shall receive the Confidential
Information of the other party subject to the following conditions:
(a) Confidential Information shall be held and protected by Receiving Party in
strict confidence and used by Receiving Party and its personnel and affiliates
only in conjunction with the performance of this Agreement. The Receiving Party
shall not disclose the Confidential Information of the Disclosing Party to
anyone except its own officers, Employees, who have a need to know such
information for purposes of exercising the Receiving Party's rights or
performing its obligations hereunder, and such officers and Employees shall make
no further disclosure of Confidential information to any other officers,
employees, third parties or GE Contractors of the Receiving Party nor to any
other party without the express written authorization of the Disclosing Party.
(b) GE and Support.com warrant and represent on their own behalf that all of
their own officers, and Employees working on GE-Support.com projects are aware
of (or will, within 10 days of the Effective Date of this Agreement be made
aware of) the terms of this non-disclosure agreement so that they may
sufficiently protect the considerable interests of the Disclosing Party's
Confidential Information.
(c) The Receiving Party shall not copy the Disclosing Party's Confidential
Information (except for the limited purpose of making secondary copies for
officers and employees on a need-to-know basis) and shall return to Disclosing
Party any or all portions of the Disclosing Party's Confidential Information at
any time upon request by the Disclosing Party including, but not limited to all
documents or other media containing the Disclosing Party's Confidential
Information. If any intermediate work products or working papers containing the
Disclosing Party's Confidential Information shall have been generated, they
shall be delivered to the Disclosing Party's Contract Administrator or Technical
Coordinator or, when appropriate, disposed of as they so direct.
(d) GE's and Support.com obligations herein with respect to any item of
Confidential Information
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shall be binding upon each party during the term of this Agreement and for five
(5) years after the expiration or termination of this Agreement. Protection to
trade secrets shall extend to such time as the relevant information qualifies as
a trade secret under the applicable law.
(e) Neither GE nor Support.com nor any third party shall have obligations to
the other regarding the accuracy or future utilization by the Receiving Party of
the Disclosing Party's Confidential Information.
(f) The Receiving Party shall not export or re-export any of the Disclosing
Party's Confidential Information, technical data or products received from the
Disclosing Party or the direct products of such Confidential Information's
technical data to any proscribed country, unless authorized by the Disclosing
Party in writing, and as properly authorized by any applicable regulation of the
U.S. Government.
(g) THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE
DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use
Disclosing Party's Confidential Information for the express, limited purposes
described above.
(h) The Receiving Party shall be responsible in all cases for the enforcement
of all confidentiality and non-disclosure provisions contained herein as they
pertain to the Disclosing Party's Confidential Information, and shall bear all
liability for any violations of these provisions by its subsidiaries,
affiliates, joint ventures, consultants, agents, third party contractors and
related persons or entities that are controlled by or under common ownership and
control of the Receiving Party.
(i) Support.com acknowledges that GE does not desire to receive any
Support.com Confidential Information that is not related or appropriate to the
performance of this Agreement or that is not otherwise requested by GE
(collectively, "Disclosure Objectives"). Support.com agrees to use reasonable
efforts to avoid disclosures of Support.com Confidential Information to GE that
are not Disclosure Objectives.
(j) Either party may disclose the Disclosing Party's Confidential Information
to a governmental entity in the event such disclosure is required to be
disclosed pursuant to a regulation, law or court order provided such party has
given prior notice to the Disclosing Party and provides only the minimum amount
of information required to comply with such regulation or order.
5. PROPRIETARY RIGHTS INDEMNIFICATION
----------------------------------
(a) Support.com represents and warrants that it is the sole owner of the
Software, or has procured the Software under valid licenses from the owners
thereof, and Support.com further represents and warrants that it has full power
and authority to grant the rights herein granted without the consent of any
other person. Support.com shall defend and indemnify and hold GE harmless
against any amounts awarded in a settlement or final court decision arising from
any claim, suit, or other proceeding brought against GE based on an allegation
that the Software or any elements thereof, or the use of any Software furnished
by Support.com pursuant to this Agreement constitutes a violation or
infringement of any worldwide copyright, trade secret, or other proprietary
information right, or U.S. patent provided that Support.com is notified promptly
in writing of such allegation, suit, or proceeding and given full, complete, and
exclusive authority, and complete information and assistance (at Support.com's
expense) for the defense of same. Support.com shall pay without limitation all
damages and costs incurred by GE with respect to such suits or proceedings, but
Support.com shall not be responsible for any compromise made by GE or its agents
without Support.com's consent. If such Software is held by a court of competent
jurisdiction to constitute infringement, and its use is enjoined, Support.com
shall, at its own expense without limitation, either promptly procure the right
for continued use of such Software by GE, or, if the performance thereof will
not thereby be materially adversely affected promptly replace or modify such
product(s) so that it becomes non-infringing. If neither of the actions
specified for Support.com in the preceding sentence is commercially feasible,
then as a last resort, Support.com shall accept return of such Software and
refund to GE all fees paid by GE for such Software if such return of Software
occurs within the five (5) year period beginning on the Effective Date, plus any
unused maintenance fees paid for the Software and any costs incurred by GE in
the removal of such Software and installation of alternative products. After
such five (5) year period beginning with the sixth (6th) year, GE shall be
entitled to a pro-rata refund based upon a five (5) year depreciation schedule.
During the pendency of any claim against GE with respect to Support.com's
ownership or authority, GE may withhold payment of any sum otherwise required to
be paid hereunder.
(b) Support.com has no liability for any claim arising out of or related to
(i) a modification of the Software by anyone other than Support.com without
Support.com's prior written consent where such modification was outside of the
scope of use of the Software as reasonably contemplated by the Documentation
and, but for such modification there would be no infringement; (ii) a
combination of the
5
<PAGE>
Software with any third party software or hardware not specifically recommended
by Support.com in its Documentation where such combination is the cause of such
infringement; or (iii) the use of a version of Software other than the then-
current version if infringement would have been avoided with the use of the
then-current version, provided that Support.com notified GE that a current
version was available to correct known infringing functionality; and
i) GE shall have had the option to receive such release at no charge, on
an immediate basis, and
ii) Support.com has promptly notified GE in writing of recommendations to
implement such release so as to minimize any disruption and costs to
GE for ongoing Operational use of the Software; and
iii) GE has applied commercially reasonable judgment to endeavor to accept
Support.com's proposed recommendations. However, if after applying
reasonable judgment, GE concludes that the implementation of such
release by GE would have involved significant disruption or cost to
GE, then Support.com shall remain liable under this Section 5.0 absent
a mutually agreeable resolution.
(c) The rights granted to GE under this Section 5.0 shall be GE's sole and
exclusive remedy for any alleged infringement of any patent, copyright, trade
secret or other proprietary rights except where the alleged infringement of any
such right is asserted by GE to be an infringement of a GE right, then the
parties agree that no such limitation as to remedy set forth above shall apply.
6 PAYMENT
-------
GE agrees to pay Support.com the fees set forth in Exhibit B. All fees are
---------
payable *** (***) days from receipt of a correct invoice. All prices are
exclusive of taxes, and GE shall be solely responsible for any sales, value-
added or similar tax, other than taxes imposed on Support.com's income.
7 WARRANTY
--------
7.1 Media Warranty
Support.com warrants that for a period of ninety (90) days from the Effective
Date the media used to store and deliver Software to GE shall be free from
defects in manufacture and material. Should the media fail to be free of
defects in manufacture or material during the ninety (90) day warranty period,
Support.com shall replace the defective media. Defective media shipped to the
Support.com with a shipping date within the 90 day warranty period will be
replaced at no charge including shipping.
7.2 Limited Warranty
Support.com warrants that for a period of *** (***) months from the Effective
Date, the Software will perform substantially as described in their
Documentation. If GE should determine during the warranty period of *** (***)
months from the Effective Date the Software fails to perform substantially in
such a manner, GE's sole and exclusive remedy shall be either replacement of
the Software at no charge or a full refund of all license fees paid by GE for
the right to use the program. GE will deliver all copies of defective Software
with associated Documentation to Support.com to receive replacements or a refund
of fees.
7.3 Code Integrity Warranty
Support.com warrants that it has used reasonable efforts to ensure that, upon
delivery of the Software, the Software contains no "computer viruses" or "time
bombs" as those terms are commonly understood in the information processing
industry. Specifically, Support.com warrants that the Software contains no code
or instructions (including any code or instructions provided by third parties)
that is intended to access, modify, delete, damage, or disable any computer,
associated equipment, computer programs, data files or other electronically
stored information operated or maintained by GE. Support.com hereby expressly
waives and disclaims any right or remedy it may have at law or in equity to de-
install, disable or repossess (except as may otherwise be expressly provided in
this Agreement) any Software, in the event GE fails to perform any of its
obligations under this Agreement, except in the event such right or remedy is
finally determined by a tribunal of competent jurisdiction.
7.4 Documentation Warranty
Any Documentation furnished as part of Software(s) hereunder will be in form and
substance at least equal to comparable materials generally in use in the
industry. If at any time such original Documentation is revised or supplemented
by additional Documentation, thereupon GE shall be entitled to such revised or
additional Documentation at no charge. GE shall have the right to reproduce all
Documentation supplied hereunder provided such reproduction shall be solely for
the use by GE.
7.5 Year 2000 Compliance Warranty
6
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
In addition to any other warranties and representations provided by Support.com
to GE, whether pursuant to this Agreement, by law, equity, or otherwise,
Support.com represents and warrants that (a) all Software and Support Services
without limitation, provided by Support.com or their agents or assignees
hereunder, shall be Year 2000 Compliant at the time of delivery and at all times
thereafter and in all subsequent updates or revisions of any kind, and (b)
Support.com's supply of the Software and Support Services to GE shall not be
interrupted, delayed, decreased, or otherwise affected by dates prior to, on,
after or spanning January 1, 2000.
For purposes of this Agreement, Year 2000 Compliant means that (1) the Software
and Support Services accurately process, calculate, provide and/or receive date
data (including without limitation calculating, comparing, and sequencing),
within, from, into, and between centuries (including without limitation the
twentieth and twenty-first centuries), including leap year calculations, (2)
neither the performance, functionality nor the supply to GE of the Software and
Support Services will be affected by dates prior to, on, after, or spanning
January 1, 2000, (3) date data of any kind will not cause any error,
interruption, or decreased performance in the operation of such Software and
Support Services, and (4) where any date element is represented without a
century, the correct century will be unambiguous for all manipulations involving
that element.
If at any time the Software and Support Services are found, by GE or any other
of Support.com's customers, not to be Year 2000 Compliant, then, in addition to
any other obligation of Support.com under the law, pursuant to this Agreement,
at equity, or otherwise, at no additional charge to GE, Support.com shall, by no
later than thirty (30) days after receipt of a report of noncompliance repair
or replace the non-conforming Software or Support Service.
Any statute of limitations that might be applicable to Support.com's Year 2000
Compliant warranty and representation shall not accrue or begin to run until the
later of January 1, 2000 or the time when such statute of limitations would
otherwise accrue or begin to run, and, with respect to any claim based on any
failure of the Software and/or Support Services to be Year 2000 Compliant,
Support.com shall not assert any defense based on or alleging the passage of
time from the Effective Date of this Agreement to January 1, 2000.
7.6 General Representations and Warranties
Support.com represents and warrants that:
(a) it has taken commercially reasonable efforts to ensure it has not
intentionally submitted material information heretofore and
contemporaneously that has been untrue and inaccurate in any material
respect;
(b) it has the authority, license or permission from any third party owner or
security interest holder, to use intellectual property in conjunction with
the provision of the Software and Support Services under this Agreement;
(c) it will obtain the requisite personnel, competence, alliances, skill and
physical resources necessary to provide the Software and Support Services
on a global basis as set forth under this Agreement and that it is
authorized to act on behalf of and engage various service providers and
resellers on its behalf; and
(d) Services delivered or performed shall be in accordance with the highest
generally accepted standards of the profession existent at the time the
Services are delivered or performed (for the same type of Services and at
the same rates).
7.7 This warranty and the other warranties contained in this entire Section 7
herein shall not apply if: (i) Software was not used in accordance with the
Documentation, however, if the Software specifications contained in the
Documentation are re-published by Support.com during the Warranty Period and the
re-published specifications described functional capabilities that are
diminished from what the capabilities described in the original specifications,
the warranty shall still apply unless Support.com obtains express written
consent of GE; (ii) Software was altered, modified or converted by GE or other
third party (other than a customer-configurable feature of the Software), where,
but for such alteration, modification, or conversion the Software would have
performed; or (iii) GE's computer(s) malfunctioned and the malfunction caused
the defect.
7.8 EXCEPT AS SET FORTH IN THIS SECTION, SUPPORT.COM AND ITS LICENSORS DISCLAIM
ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR
OTHERWISE, WITH RESPECT OT THE SOFTWARE AND SUPPORT SERVICES PROVIDED HEREUNDER,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SUPPORT.COM DOES NOT WARRANT THAT THE SOFTWARE WILL BE
SECURE OR UNINTERRUPTED. GE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE
FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES,
IF ANY,
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SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT
WILL WARRANTIES PROVIDED BY LAW, IF ANY APPLY UNLESS THEY ARE REQIRED TO APPLY
BY STATUTE.
8 SUPPORT SERVICES
----------------
8.1 Initial Support Services. During the one (1) year period extending from
-------------------------
the Effective Date (the "Initial Support Period"), Support.com shall provide
the Support Services described in Exhibit C.
---------
8.2 Renewals. After the Initial Support Period, Support.com's obligation to
--------
provide the above-described Support Services and GE's obligation to pay the
applicable annual Support Service fee shall renew automatically upon the first
and second anniversary of the Effective Date. Thereafter, Support.com's
obligation to provide the above-described Support Services and GE's obligation
to pay the applicable annual Support Services shall renew automatically upon
each of the *** through *** anniversary of the Effective Date, unless GE has
given Support.com written notice of cancellation at least thirty (30) days prior
to the expiration of the then current term.
8.3 Training. Each day On-Site Training entitles GE to a one-day standard
--------
training class on-site at GE's facilities. Each class may be attended by no more
than fifteen (15) employees of GE. GE shall be responsible for all travel,
meals, hotel and other associated expenses related to providing such training
services provided such expenses comply with the GE's travel and expense policy
as described on Exhibit E of this Agreement. GE shall pay for and Support.com
---------
shall provide the number of On-Site Training days listed on Exhibit B.
---------
9 TERM AND TERMINATION.
---------------------
9.1 This Agreement shall be in effect until terminated as provided herein. GE
may terminate the Agreement for convenience after thirty six (36) months upon
one hundred eighty days (180) written notice. For the avoidance of doubt, the
license term for the Software under this Agreement is perpetual (in accordance
with Exhibit A), subject to earlier termination in accordance with the terms
---------
hereof pursuant to a material breach by GE including, but not limited to, a
violation of Section 4.0.
9.2 Either party may terminate this Agreement upon the occurrence of any of
the following events of default:
(a) If the other party fails to perform any of the covenants defined herein or
fails to carry out or discharge any of its material obligations herein, and
fails to correct such failure within a thirty (30) day cure period
following written notice specifying such failure by the other party.
(b) If the other party shall have become insolvent or bankrupt, admitted in
writing its inability to pay its debts as they mature or taken any action
for the purpose of entering into winding-up, dissolution, bankruptcy,
reorganization or similar proceedings analogous in purpose or effect
thereto, or any such action shall have been instituted against it and such
party shall have acceded thereto or such action shall not have been
dismissed or stayed within sixty (60) days of the institution thereof, or
any order shall have been made by any competent court or any resolution
shall have been passed for the appointment of a liquidator or trustee in
bankruptcy or such party shall have appointed or suffered to be appointed
any receiver or trustee of the whole or any material part of its assets or
business or shall have entered into any composition with its general
creditors. In any such event the other party (i.e., the first party
specified in this paragraph B of Section 9.0) may terminate this Agreement
at any time after such event by giving notice or may suspend or cancel
deliveries during the continuation of any such event.
9.3 Expiration or termination of this Agreement for any reason other than
breach shall not abridge or diminish in any way the rights of GE to use the
Software previously licensed or to receive Maintenance or Support Services as
provided in this Agreement, and such use of the Software shall continue in
perpetuity subject to the applicable terms and provisions of this Agreement.
Continuation of optional Support Services for such Software is subject to the
applicable terms and provisions of Exhibits A, B and C of this Agreement. Upon
-------------------
termination for breach by GE, GE shall promptly destroy or return all copies of
the Software to Support.com and shall provide Support.com with written
certification that all such copies have been destroyed or returned. GE shall pay
Support.com in full all amounts owed to Support.com, within thirty (30) days of
termination by Support.com or for convenience by GE or expiration of this
Agreement.
9.4 Impaired Performance
--------------------
(a) In the event Support.com, except for reasons beyond its reasonable control,
willfully or grossly negligently fails to materially perform or observe any
of its obligations as expressly specified in this Agreement and Support.com
fails to take effective corrective action within thirty (30) days following
written notice thereof by GE,
8
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
GE may, without waiving its right to terminate the Agreement, accept
Support.com's impaired performance and make reasonable proportional
reduction in payment for the specific defaulting Software or service.
(b) In the event GE, except for reasons beyond its reasonable control,
willfully or grossly negligently fails to materially perform or observe any
of its obligations as expressly specified in this Agreement and GE fails to
take effective corrective action within thirty (30) days following written
notice thereof by Support.com, Support.com may, without waiving its right
to terminate the Agreement, accept GE's impaired performance and declare
that the particular and only the particular license(s) in default for the
Software is terminated immediately. GE shall immediately thereupon stop
using any terminated Software and ten (10) days after any such termination,
GE shall, at its own expense, either return to Support.com, or destroy, the
particular copy(ies) of the Software and its (their) Documentation
including any back-up copies and provide Support.com with written
certification that GE has so returned or destroyed such copy(ies).
(c) Upon written notice to the other party prior to the expiration of the
corrective action period, in accordance with Sections 9.4 (a) and (b)
above, a party has the right hereunder to request binding arbitration of
the disputed breach before the American Arbitration Association, or its
successor, however, nothing in this Section 9.4 shall be intended to or
construed as restricting a party from seeking relief in a court of
competent jurisdiction. If the parties can not mutually agree upon a
single arbitrator, each party shall designate one arbitrator provided
further that the arbitrator (s) selected shall be knowledgeable in the
computer software field. The rules and regulations to be followed shall be
those of the American Arbitration Association, or its successor, in effect
on the date of delivery of the demand for arbitration. The parties
expressly agree that the arbitrator(s) shall have the authority to issue
equitable relief. The decision of the arbitrator(s) shall be final and
binding on both parties and their respective successors and permitted
assigns, and such decision may be enforced by any court having jurisdiction
over the party against whom the award is rendered. Each party shall pay the
fees of its own attorneys and the expenses of its witnesses. All other
costs and expenses of the arbitration, including the cost of recording the
transcripts thereof, if any, administration fees and all other fees and
costs, shall be paid by the non-prevailing party. In the event the
arbitrator(s) make(s) no assessment of such other fees, costs and expenses,
such fees, costs and expenses shall be borne equally by the parties.
10. QUALITY
-------
10.1 The parties acknowledge that Support.com's willingness and ability to
provide Software and Support Services of the quality and at the levels specified
herein are the essence of this Agreement. Accordingly, the following provisions
shall apply to all Software and Support Services furnished by Support.com
hereunder:
10.2 Industry Standards. Support.com represents that its Support Services will
-------------------
be performed in a manner consistent with its Documentation and published
specifications, and shall be in accordance with the highest generally accepted
industry standards (for the same type of Services and at the same rates). This
clause shall not be interpreted as an extension to the warranty in Section 7.2,
as the latter is the warranty for the Software.
11 Limitation of Liability.
------------------------
Support.com's maximum cumulative liability to GE arising out of or relating to
this Agreement, whether based upon warranty, contract, tort, or otherwise, shall
not exceed: (i) for a claim based on the Software or the use thereof the total
amount of license fees paid to Support.com under this Agreement, and (ii) for a
claim based on the provision of Support Services, the total amount of
maintenance fees for the Maintenance Period in which the claim arose.
Except for a claim for breach of GE's intellectual property rights or GE
Confidential Information, Support.com shall not be liable for any special,
indirect, incidental, or consequential damages, including, but not limited to,
loss of profits, loss of data, or loss of use damages, arising out of or
relating to this Agreement or the creation or supplying of the Software or
Support Services, even if Support.com was aware of or was notified of the
possibility of such damages. Except for a claim for breach of Support.com's
intellectual property rights or Support.com's Confidential Information, GE shall
not be liable for any special, indirect, incidental, or consequential damages,
including, but not limited to,
9
<PAGE>
loss of profits, loss of data, or loss of use damages, arising out of or
relating to this Agreement.
In no event shall the foregoing limitation limit either party's liability to the
other party for damages resulting from personal injury or tangible property
damage. As used above, the term "tangible property" shall not include software,
documentation and/or data files. Support.com's liability for Proprietary Rights
Indemnification shall be as expressly set forth under Section 5.0 and not
subject to any limitation whatsoever.
12 RIGHT TO AUDIT
--------------
The parties agree to apply reasonable efforts to minimize reporting requirements
in the administration of this Agreement except as specifically set forth in
accordance with Exhibit A. Notwithstanding, the intent of those efforts to
---------
minimize reporting requirements shall not preclude Support.com the ability or
right to protect its interests under this Agreement, and therefore there may be
some instances in which an ability to audit is necessary.
13. Cumulative Remedies. The remedies under this Agreement shall be
-------------------
cumulative and not alternative and the election of one remedy for a breach shall
not preclude pursuit of other remedies unless expressly provided otherwise in
this Agreement.
14. Dispute Resolution. Before either party initiates any arbitration
------------------
proceeding as set forth in Section 9 above or any legal action against the other
arising from this Agreement (other than to seek injunctive or other equitable
relief), the matter in controversy will first be referred to the chief
information officers or other appropriate officers of the parties. Such
officers shall take all reasonable steps to attempt to resolve the matter within
four (4) weeks of the date of referral.
15. Governing Law. This Agreement shall be governed in all respects by the
-------------
substantive laws of the State of New York, United States of America, without
regards to its rules on conflicts of law. The parties specifically disclaim the
applicability of the United Nations Convention on Contracts for the
International Sale of Goods.
16 Notices. Notices will be in writing and will be sent to the address below.
-------
Any notice may be delivered personally or by certified mail, (or the equivalent)
and will be deemed to have been serviced, if by hand when delivered, if by mail
48 hours after mailing.
If to Support.com:
------------------
Support.com, Inc.
575 Broadway
Redwood City, CA 94063
Attention: Corporate Counsel
If to GE:
---------
Mark Mastrianni
Manager, Technology
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
17. Export Restrictions. GE agrees to comply with all applicable export and
-------------------
import laws and regulations. During the term of this Agreement, Support.com
will, as a material obligation of this Agreement, disclose the levels of
encryption technology contained within the Software sufficient for GE to comply
with all applicable export and import law and regulations. Furthermore,
Support.com will notify GE, sufficiently in advance, when the level of
encryption technology changes as long as the change(s) is in adherence to such
export and import laws and regulations.
18. Assignment.
----------
18.1 Assignment by Support.com
-------------------------
Support.com shall not assign or sublicense its rights under this Agreement
to any other person, entity or affiliate without the prior written consent
of GE, which consent shall not unreasonably be withheld or delayed.
Notwithstanding the foregoing, Support.com may assign all of its rights
and obligations hereunder in the case of (i) the sale of all or
substantially all of the capital stock or assets of Support.com, or (ii)
the merger of Support.com with and into another entity where the
Support.com is not the surviving entity. GE hereby authorizes the
foregoing assignments, provided that (a) such transfers or assignments are
made pursuant to a written assignment and assumption agreement under which
the transferee agrees to perform all of Support.com's obligations
hereunder; and (b) Support.com may not transfer or assign its rights or
obligations hereunder to any then-current competitor or customer of GE (or
any affiliate, division, operating unit or subsidiary of such competitor
or customer).
18.2 Assignment by GE
----------------
(a) GE may assign or otherwise transfer Software or the Agreement, in whole,
to third
10
<PAGE>
parties (such party, a "Transferee") following notice to Support.com in
connection with the sale of all or substantially all of the capital stock
or assets of GE or a division, business operation or subsidiary of GE (any
of the foregoing, a "GE Business Unit"). Support.com hereby authorizes the
foregoing assignments, provided that (a) such transfers or assignments are
made pursuant to a written assignment and assumption agreement; (b) all
fees due to Support.com for use by GE of such Software and Support
Services prior to such assignment have previously been paid; (c) GE may
not transfer or assign any Software or related materials to any then-
current competitor or customer of Support.com (or any affiliate, division,
operating unit or subsidiary of such competitor or customer); and (d) the
Transferee shall have signed mutually agreeable software license and
support agreements with Support.com as set forth below.
Support.com hereby agrees that the material terms of the Software license
granted to GE hereunder shall be passed on to a Transferee for no
additional license fee for the term of this Agreement provided that (i)
the scope of use of the Software by the Transferee does not and will not
exceed the scope of use at the time of transfer of the Software by GE or
the applicable GE Business Unit; (ii) GE notifies Support.com of the total
number of Healing Agent licenses that will be transferred to the
Transferee at the time of divestiture and such transferred licenses shall
then vest in the divested entity; and (iii) that number of transferred
licenses at the time of divestiture will be included in the number of
Healing Agents as called for on Exhibit A. In the event that the divested
---------
entity has additional requirements or terms (including fees for licenses
and services) said requirements or terms will be determined between the
divested entity and Support.com, and those additional Healing Agent
licenses will not be included in the total called for on Exhibit A. When
---------
the Software is transferred to a Transferee, GE's license and GE's right
to use the Software, to the extent such rights have been transferred, are
terminated.
(b) GE shall notify Support.com in writing within thirty (30) days of the
assignment date and shall furnish Support.com a copy of an executed
assignment agreement demonstrating that Transferee agrees to be bound by
the terms and conditions of this Software license. The assignment
agreement between GE and Transferee shall contain the number of Healing
Agents that are being transferred
(c) Notwithstanding any assignment of the rights and obligations of GE to
Transferee, GE shall continue to be bound by the confidentiality and non-
disclosure provisions of this Agreement, which provisions shall survive
such assignment. GE may not retain any copies of Software or Documentation
licensed hereunder following the assignment to Transferee.
(d) An assignee of either party, if authorized hereunder, shall be deemed to
have all of the rights and obligations of the assigning party set forth in
this Agreement. It is understood that no assignment shall release the
assigning party from any of its obligations, and the "assigned" party
shall carry all obligations.
19. ***. Support.com represents that the unit *** being provided hereunder
---
are *** than the unit *** by Support.com to *** using the *** of the Software
for internal purposes.
20. Independent Contractor. The relationship created by this Agreement is one
----------------------
of independent contractors, and not partners, franchisees or joint venturers.
No employees, consultants, contractors or agents of one party are employees,
consultants, contractors or agents of the other party, nor do they have any
authority to bind the other party by contract or otherwise to any obligation,
except as expressly set forth herein. Neither party will represent to the
contrary, either expressly, implicitly or otherwise.
21. Headings. The descriptive headings of this Agreement are intended for
--------
reference only and shall not affect the construction or interpretation of this
Agreement.
22. Severability. If any provision of this Agreement is held by decision of a
------------
court of competent jurisdiction to be ineffective, unenforceable or illegal for
any reason, such decision shall not affect the effectiveness, validity or
enforceability of any or all of the remaining provisions hereof, and if any
provision of this Agreement is so held to be ineffective, unenforceable, or
illegal with respect to any particular circumstances, such provision shall
remain in full force and effect in all other circumstances.
23. Publicity. As a material obligation of this Agreement, neither party
---------
shall use the name, logo, trademark, or any reference either direct or indirect
of the other in publicity releases, advertising, case
11
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY WITH THE COMMISSION.
<PAGE>
studies or references without the prior written consent of the other. Except as
set forth in Exhibit D, Paragraph VIII or unless the parties mutually agree
--------- --------------
during the term of this Agreement, Support.com understands that GE does not
contemplate providing any such consent and is under no obligation, express or
implied, to provide any such consent, and, in the event that any such consent
should be granted for a particular communication, GE shall not be under any
further obligation to provide consent in any future request. Both parties to
this Agreement agree not to disclose the existence or terms of this Agreement to
any third party without the prior written approval of the other, except that GE
may disclose this Agreement to an Assignee instituted by GE pursuant to Section
18.2 hereof or pursuant to Section 4(j).
24. Amendment. Any waiver, amendment or modification of any of the provisions
---------
of this Agreement, or any right, power or remedy hereunder, shall not be
effective unless made in writing and signed by the party against whom
enforcement of such waiver, amendment or modification is sought. No failure or
delay by either party in exercising any right, power, or remedy with respect to
any of its rights hereunder shall operate as a waiver thereof in the future.
25. Security. In the event that any Support.com personnel are physically
--------
present at a GE location pursuant to this Agreement, any such physical presence
shall be subject to commercially reasonable security requirements, provided that
GE will indemnify and hold Support.com harmless against any claims by such
personnel related to an invasion of privacy, and Support.com shall indemnify GE
against any claims that may arise because of the negligence of such personnel.
26. Disputes; Injunctive Relief. In the event of a legal action brought by one
---------------------------
party against the other and arising out of this Agreement, the prevailing party
is entitled to recover reasonable attorneys' fees and court costs. Any attempted
or actual violation of the terms set forth in this Agreement regarding
confidential information or intellectual or proprietary rights is a breach of
this Agreement which will cause irreparable harm to the injured party entitling
such party to injunctive relief in addition to all other available legal
remedies.
27. Survival. The following provisions will survive termination of this
--------
Agreement: 1, 3.2-3.7, 4-6, 7.7, 7.8, 9, 11-13, 15-17, 20-24, 26-32, and only in
the event the termination does not result from a breach of this Agreement by GE,
2 and 3.
28. Entire Agreement; Conflict. This Agreement, together with all exhibits and
--------------------------
schedules hereto, constitutes the complete, final and exclusive statement of the
terms of the Agreement between the parties pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions of the parties. No modification or rescission of this Agreement
shall be binding unless executed in writing by the party to be bound thereby.
This Agreement includes and incorporates herein by this reference the Exhibits A
----------
through E attached hereto. In the event of any conflict between the terms and
- ---------
conditions of this Agreement and an Exhibit, the terms and conditions of the
Exhibit shall prevail. Any different or additional terms of any related purchase
order, confirmation, invoice, or similar form shall have no force or effect.
29. Force Majeure. Either party shall be excused from any delay or failure in
-------------
performance hereunder due to causes beyond its control, including but not
limited to, acts of God, earthquake, floods, lightning, labor disputes and
strikes, other labor or industrial disturbances, riots, war, acts of the public
enemy, insurrections, embargoes, blockages, regulations or orders of any
government, agency or subdivision thereof, shortages of materials, rationing,
utility or communication failures, casualty, novelty of product manufacture or
other unanticipated product development problems, and governmental requirements.
The obligations and rights of the party so excused shall be extended on a day-
to-day basis for the period of time equal to that of the underlying cause of the
delay; provided that such party shall give notice of such force majeure event to
the other party as soon as reasonably possible.
30. Authority. Each party represents that all corporate action necessary for
---------
the authorization, execution and delivery of this Agreement by such party and
the performance of its obligations hereunder has been taken.
31. Privacy. The Software contains features which may allow GE to collect
-------
data from, control and/or monitor computers running the Software without notice
to or knowledge by end users of the Software. GE is solely responsible for, and
assumes all liability with respect to all such activity. GE shall indemnify
Support.com against any damages, claims, losses, settlements, attorneys' fees
and other expenses related to any such activities.
32. Government End-Users. As defined in Federal Acquisition Regulations (FAR)
--------------------
section 2.101 (or otherwise), the Software and any accompanying documentation
licensed in this Agreement are deemed to be "commercial items" and commercial
computer software" and "commercial computer software documentation." Consistent
with DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, or disclosure of the Software by
the U.S. Government shall be governed solely by the terms of this Agreement and
shall be prohibited except to the
12
<PAGE>
extent expressly permitted by the terms of this Agreement.
33 Encryption. The security mechanisms implemented by the Software have
-----------
inherent limitations and GE must determine that the Software sufficiently meets
its requirements.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year above written.
ACCEPTED BY:
- ----------------------------- ----------------------------
("General Electric Company") ("Support.com")
By: /s/ Mark Mastrianni By: /s/ Radha R. Basu
---------------------------- ----------------------------
Name: Mark Mastrianni Name: Radha R. Basu
------------------- -------------------
Title: Mgr, Technology Title: President & CEO
------------------------- -------------------------
13
<PAGE>
EXHIBIT A
SOFTWARE LICENSE
----------------
I. Description Software:
- -------------------------
SUPPORT CENTER, Version 3, in object code format and including all underlying
technology elements expressed in a higher level language, e.g. html,
scripts (but excluding source code)
SUPPORT PORTAL, Version 3 in object code format and including all underlying
technology elements expressed in a higher level language, e.g. html,
scripts (but excluding source code)
FOUNDRY, Version 3, in object code format and including all underlying
technology elements expressed in a higher level language, e.g. html,
scripts (but excluding source code)
II. Number of Network Computers and Workstations Licensed
- ----------------------------------------------------------
Software Number of Authorized Copies
- -------- ---------------------------
SUPPORT CENTER:
- ---------------
Support.com Healing Agent *** Years (see Section III below)
Support.com Healing Console *** Years (see Section III below)
Support.com Server *** Years (see Section III below)
SUPPORT PORTAL:
- --------------
Web Application *** Years (see Section III below)
Nexus *** Years (see Section III below)
FOUNDRY: *** Years (see Section III below)
- --------
III. Deployment Term
---------------
GE shall have the right to use the Software on *** GE Computers and GE Networks
for a period of *** (***) *** commencing on the Effective Date ("Deployment
Term"). Upon expiration of the Deployment Term, *** rights to *** usage of the
Software shall cease and GE shall retain a *** right *** to: (i) the number of
Healing Consoles *** and in *** by *** , (ii) the number of Servers *** and in
*** by ***; (iii) the number of Web Applications *** and in *** by ***; (iv) the
number of *** components *** and in *** by ***; (v) the number of Foundry
products *** and in *** by ***; and (vi) the number of Healing Agents *** and in
*** as permitted (***). In the event the number of Deployed Healing Agents is
*** than *** (***), then GE shall be entitled to *** to an *** of *** without
owing any further license fees to Support.com and in the event the number of
Deployed Healing Agents is *** than *** (***), then GE and Support.com shall ***
in *** to *** the amount owed to Support.com for a *** for each Deployed Healing
Agent in *** and any such *** would be on a basis *** than this Agreement. In
any event, support and maintenance fees following the Deployment Term shall be
*** in *** based upon a *** in the *** of *** . GE shall *** the *** of *** and
each such *** or *** and in *** to Support.com in a writing executed by a
company executive within sixty (60) days after the expiration or termination of
the Term.
2
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
EXHIBIT B
FEE SCHEDULE
------------
I. Software Fees
- ------------ ----
As set forth on Exhibit A $***
---------
II. Support and Maintenance Fees
- --------------------------- ----
*** Years of support and maintenance *** year included in Software Fees
for the Software purchased hereunder $ *** (*** year)
$*** (*** year)
III. Implementation Services Fees
- ---------------------------- ----
*** people for *** days at *** *** (except for T&E)
GE Business (to be used during or
*** to the *** month
*** commencing on the Effective Date; GE acknowledges that some of these days
have already been served as of the Effective Date)
IV. Training Fees
- ------------- ----
*** Days of On-Site Training *** (except for T&E)
-for up to *** employees
V. Invoicing
- --------------
On the Effective Date: $ ***
On the *** $ ***
On the *** $ ***
VI. *** Pricing
- ------------------
*** Support and Maintenance Fees ("Support Services"): If GE *** to *** Support
Services for the Software licensed hereunder for the *** (***) *** period
commencing on the *** and *** anniversary of the Effective Date, such Support
Services fees will be $ *** each year, respectively.
*** Services
For a period of *** from the Effective Date, if GE *** to *** On-Site Training
Days and Implementation Services Days, the price for each such day will be
$***, plus *** and *** (in accordance with ***'s travel and expense policy in
accordance with Exhibit E). Payment for such *** shall be due *** (***) ***
after receipt of an invoice reflecting services performed in the previous month.
3
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
EXHIBIT C
SUPPORT SERVICES
----------------
During the period for which GE has paid the applicable Support Services fee, GE
shall be entitled to the following:
I. Software Services
Support Services shall entitle GE to all Product Upgrades as defined under
Section 1.12 of this Agreement. Product Upgrades shall be subject to the terms
and conditions applicable to the Software as set forth in this Agreement.
Support.com will support the most current version of the Software and the
release immediately preceding the new version of the Software. On-site
implementation and training for Product Upgrades is available from Support.com
at mutually agreeable times and at the rates described under Exhibit B.
---------
II. Software Technical Support
Support.com shall provide assistance in the English language, by telephone, or
other electronic means available by Support.com, to answer urgent and immediate
questions, during the hours of 7 a.m. to 7 p.m. (Pacific time), Monday through
Friday, excluding Support.com holidays. All telephone assistance shall be given
only to two (2) named employees of GE with sufficient knowledge of the Software
("Designated GE Contacts"); such Designated GE Contacts may be changed by GE
from time to time by written notice to Support.com, provided such Designated GE
Contacts have attended appropriate Support.com training of the Software.
Support.com shall not be required to deal with any person other than the
Designated GE Contacts. Additional Designated GE Contacts can be purchased at
Support.com's standard rates. All additional assistance provided by Support.com
to GE, including, but not limited to, custom programming, data conversion and
consulting shall be charged at Support.com's then-current standard time and
material rates. Notwithstanding the foregoing and provided GE is then current
under support and maintenance, for the period beginning *** (***) *** after the
Effective Date, Support.com shall provide the above described assistance to a
total of *** (***) Designated *** (provided each such *** has attended
appropriate Support.com ***) and shall also provide the above described
assistance in the following ***.
Support.com shall use commercially reasonable efforts to remedy any reproducible
Error (as defined below) in the Software reported in writing by GE in accordance
with the Severity Levels set forth below. Support.com's obligation to provide
such services shall continue only so long as GE maintains the current installed
version of the Software, without modification by any party other than
Support.com and so long as the equipment on which the Software is installed is
configured as specified in the Documentation or as otherwise specified by
Support.com.
"Error" means a material failure of the Software to conform to its functional
specifications as described in the applicable Documentation, which failure is
demonstrable in the environment for which the Software was designed and causes
it to be inoperable, to operate improperly in the environment for which it was
designed, or produces results different from those described in the applicable
Documentation. The specific Severity Levels are set forth below. Failure
resulting from GE's negligence or improper use of the Software, modifications or
damages to the Software by GE, and GE's use of the Software on a platform or
with an operating system other than the designated platform in the Documentation
or in combination with any third party software not provided by Support.com, are
not considered Errors except as reasonably contemplated by the parties.
"Severity 1 Error": The Software materially fails to conform to the functional
- -------------------
specifications set forth in Documentation and GE is unable to proceed without a
fix to the problem or a work-around solution provided by Support.com (no
functionality, e.g., system down problems). Severity 1 Errors shall be directly
reported to Support.com Technical Support by telephone at numbers provided by
Support.com. All such Severity 1 Errors will be assigned to Technical Support
Specialist and a Support Manager. Supplier will initially respond to GE within
four (4) business hours of receipt of the Severity 1 Error by Support.com. This
response will inform GE of the identity of Supplier personnel assigned and of
the plan to seek resolution. Support.com will in addition provide regular
status updates.
"Severity 2 Error": The Software contains major functional problems against the
- ------------------
Documentation, which GE is able to work around but the Software can only be used
to a limited degree (partial or limited functionality). Severity 2 category
Errors shall be directly reported to Support.com Technical Support by telephone
or e-mail. All such problems. Support.com will initially respond to GE within
eight (8) business hours of receipt of the Severity 2
4
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
program error by Support.com. This response will inform GE of the identity of
Supplier personnel assigned and of the plan to seek resolution. Support.com will
in addition provide regular status updates.
"Severity 3 Error": Software or documentation contains incorrect logic,
- -------------------
incorrect descriptions, or functional problems, which GE is able to work around,
or where a temporary correction has been implemented (fully functional but needs
improvement). Support.com will initially respond to GE within one business day
of receipt of the Severity 3 program error by Support.com. This response will
inform GE of the identity of the Support.com personnel assigned and of the plan
to seek resolution. Support.com, in addition, will provide regular status
updates provided however that Support.com shall have the right to prioritize
Severity 3 Errors and include corrections for such Errors in future releases at
its sole discretion.
GE Obligations. In addition to providing Support.com with full, good faith
cooperation and such information as may be required by Support.com in order to
perform the support and maintenance services, GE shall provide Support.com with
(i) specific detailed information concerning GE's use of the Software as may be
required for the performance of the support and maintenance services and (ii)
all necessary computer services information and access to key personnel needed
to provide the support and maintenance. If GE fails or delays in its
performance of any of the foregoing responsibilities, Support.com shall be
relieved of its obligations hereunder to the extent such obligations are
dependent upon such performance.
License Grant. In the event any work product or code is created in the
provision of support and maintenance services hereunder, such work product or
code shall be included within Software and licensed to GE under the terms and
conditions of this Agreement, and Support.com shall retain all right, title and
interest in and to such work product or code and any derivatives, enhancements
or modifications to the Software created by Support.com.
Exclusions. Support.com is not required to provide any Support services
relating to problems arising out of (i) changes to the operating system or
environment which adversely affect the Software; (ii) use of the Software in a
manner not specified in the Documentation unless reasonably contemplated by the
parties; (iii) accident, negligence, or misuse of the Software; or (iv)
alterations or modifications to the Software by GE unless such alteration or
modifications were reasonably contemplated by the parties.
5
<PAGE>
EXHIBIT D
SPECIAL TERMS AND CONDITIONS ATTACHMENT
---------------------------------------
I. *** Support.
Support.com agrees that the availability of *** mentioned herein was an *** for
*** to *** this Agreement. Therefore, Support.com shall use commercially
reasonable efforts to make available the programs set forth on Exhibit A ***
---------
within *** (***) months from the Effective Date. Moreover, Support.com
has a *** to make available the programs set forth on Exhibit A ***
---------
within *** (***) months of the Effective Date. Upon release of such ***, GE
shall be entitled to use *** versions, subject to the terms and conditions
herein, *** .
II. *** Support ***.
Within *** (***) days of the Effective Date, Support.com shall provide an ***
Support *** (***) for a period of time not to exceed *** (***) months. The ***
shall be *** GEGE headquarters in Fairfield, Connecticut and GE shall provide
the *** a ***, a ***, and ***, as well as *** (***) *** one hundred percent
(100%) to assist the *** in establishing ***, and *** of problems. The ***
shall not be expected to travel, but in the event travel becomes reasonably
necessary, it shall be controlled and managed to cause minimum impact on the ***
and *** shall be responsible for all travel costs provided such travel costs
meet ***'s standard travel and expense policy in accordance with Exhibit E. The
---------
*** will have a *** and will have the *** to *** technical support issues and
use reasonable commercial efforts to *** reports, distribute ***, and share ***.
The *** shall not be responsible for *** of the Software, *** of the Software,
or *** on *** to *** the Software; such services are available on a ***, as set
forth in Exhibit B. The *** position is based upon an ***, and *** for ***
---------
holidays, training, and company functions.
III. Assistance with Roll-outs.
During the performance of the Implementation Services at the initial *** (***)
GE businesses (as set forth in Exhibit B), Support.com will document information
---------
learned during, and specifics about, the rollouts at the *** (***) GE businesses
in order to share such information with ***.
IV. ***
During the performance of the Implementation Services at the initial *** (***)
GE businesses (as set forth in Exhibit B), and thereafter for a total of ***
---------
(***) months, if deemed necessary by Support.com, Support.com will conduct a ***
(***) *** for the *** of the Software at such *** (***) businesses, with the
intent to *** only to *** in accordance with Section 23 of this Agreement to ***
the *** other *** or ***. At ***, GE agrees to be *** a *** for Support.com ***
use of the Software; it is understood that this will be a *** and will be *** to
ensure ***.
V. Kickoff Session.
Support.com and GE will jointly host a 1-day kickoff session (at a mutually
agreed upon time and location) where various representatives of the GE
businesses (and/or their service providers) can attend and receive high-level
exposure to the Software and Documentation, and review rollout strategies.
Support.com will participate with technical experts who can field questions, as
well as discuss lessons learned to date. The intent of this meeting will be to
accelerate the deployment of the Software within GE's environment, and educate
the I/T staff of GE on deployment issues. During this session, both parties
will introduce the resources to be applied to the initiative, and discuss the
processes in which GE businesses will seek support, communicate, and work with
Support.com and the GE project office.
6
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
VI. ***
During the *** (***) month period commencing on the Effective Date, Support.com
will assist GE in allowing the *** (***) to *** the use of the Software *** .
Such assistance shall be (i) the *** (***) days of on-site training (as set
forth on Exhibit B), and (ii) advice and counsel from ***, upon *** from ***
---------
provided that such requests are *** and *** to ***.
VII. ***
During the *** (***) month period commencing on the Effective Date, Support.com
shall make available *** in support of ***. Such *** shall be to provide an
available *** member for *** (***) *** at *** to *** and thereafter at a rate of
$ ***.
VIII. ***
*** Release. Upon initial deployment of the Software, and *** to the initial
- -------------
*** (***) GE business at which the *** are performed, *** agrees to *** with ***
to provide a *** upon *** which *** of the ***.
IV. Customer Advisory Board
Support.com will make available to GE two (2) seats on the Support.com Customer
Advisory Board, for the eighteen (18) month period commencing on the Effective
Date.
7
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
EXHIBIT E
*** TRAVEL and LIVING POLICIES
Travel & Living Guidelines for Corporate Employees
Receipts are required for all corporate card items and for cash items of $15 or
more.
Air Travel
- ----------
Coach class is required for all flights within North America, within Europe, and
--------
within Asia-Pacific (for flights originating in those respective regions).
Coach class is strongly recommended for all flights between North America and
--------------------
Europe and between North America and the northern portion of South America.
For these flights, because of the combination of longer distances and the
potential for unusual timing or circumstances, the ultimate decision between
coach and business class remains with the traveler. It is expected that the
choice of business class will be limited.
Business class is allowed for flights beyond the above "coach zone", e.g., North
-------
America to Asia-Pacific.
. Officer pre-approval is required for any exception to the above service class
guidelines.
. Employees may retain credits from frequent traveler programs. However, travel
Employees may retain credits from frequent traveler programs. However, travel
plans, routing requirements, etc., should not result in additional expense to
the Company nor require an increase in travel time during regularly assigned
working hours.
. The cost of upgrading an airline ticket to another class is not reimbursable.
. Make your own travel reservations and when possible schedule meetings to
allow for travel during off-peak hours.
. Take the "best buy" air fare recommended by the agent.
. Book tickets as early as possible.
. Use teleconferencing and/or videoconferencing to minimize travel costs.
. Minimize number of employees taking same trip, e.g., to trade shows,
conferences, etc.
. Consider non-refundable fare for frequent trips to the same location.
. Consider staying over on Saturday night to obtain lower air fare (Company
will reimburse hotel and meal costs if the total cost is lower).
Ground Transportation
- ---------------------
. Use hotel/airport shuttle services when practical.
. Book smallest rental car practical for traveler's purpose.
. When using your personal vehicle, you will be reimbursed @ $.325 per mile,
which covers depreciation, insurance, and gas.
. For New York airports private limos are not allowable expenses, except:
. When traveling outside normal working hours (very early in the morning or
late in the evening) or when there is a safety concern;
. When there are at least two passengers and a private limo would be a lower
---
cost option than other alternatives such as a rental car or scheduled limo
service with Red Dot.
. From Fairfield use Hertz or Red Dot Limo Service.
. Minimize Company costs on rental cars by: declining Collision Damage Waiver
inn the U.S. (covered under *** contract programs); returning rental cars
with a full tank of gas.
Living, Meals & Other Expenses
- ------------------------------
. Meals are reimbursable provided you are on Company business away from your
normal place of business with an overnight stay.
. On a day trip, meals eaten outside your regularly assigned work hours are
reimbursable.
8
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
Other Reimbursables
- -------------------
. Nominal gifts in lieu of meals and/or lodging at friends' or relatives'
residences are reimbursable as long as the cost to *** is lower.
. Gratuities for bellhop, taxi, meals, etc.
. Highway tolls and parking fees.
. Laundry and dry cleaning services if the employee is away for five
consecutive days.
. Telephone and fax expenses incurred on behalf of the Company, including
essential calls to home.
. Use your Dial Comm Key Card for all long distance phone calls.
. Review "in lieu of" situations with your financial representative.
Expenses Not Reimbursable
- -------------------------
The following items are considered to be of a personal nature, and therefore are
not normally reimbursable by the Company.
. Airline club membership fees
. Clothing or toiletries, except if caused by airline delay or overbooking of
airplane reservations
. Cost of an employee's family member traveling with the employee, except wen
the family member's presence serves a business purpose and the costs have
Corporate Officer approvaL
. Cost of a circuitous or side trip for personal convenience or benefit . Cost
of a circuitous or side trip for personal convenience or benefit
. Fines for traffic violations
. Gifts to employees or their families of flowers, money, merchandise, or
services
. Insurance on personal property; personal travel insurance
. Items for personal use, such as: hairstyling, shoe shine, magazines,
newspapers, movies (including in-room movies), shows, and sporting events
(unless for entertainment on behalf of the Company) and other similar items
. Loss or theft of personal property (e.g., clothes, jewelry, etc.), cash
advance, personal funds, or tickets
. Maintenance or repair of personal property (e.g.,
home and grounds) while out of town on Company business
. Parking or garage charges at the employee's regularly assigned place of
business
. Personal credit card fees or charges incurred as a result of third-
party misuse of lost credit cards
. Traveling expense between home and regularly assigned place of business
9
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
Product Enhancements
<TABLE>
<S> <C>
*** *** to *** and provide *** during a ***.
*** A *** to *** and *** information. The *** will help
*** the *** for each ***.
*** *** to *** the *** and *** and *** the *** of the
***.
*** *** and *** about *** and ***.
*** An *** to *** to ***. This enables existing ***
to be *** to *** for ***.
*** *** and *** to handle ***. After ***, the
product is *** to *** and ***.
*** *** the *** to *** to *** on ***.
</TABLE>
15 February 2000 /s/ Radha R. Basu
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
Release Schedule
Continuous and Growing
***
15 February 2000 /s/ Radha R. Basu
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
