-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KFL+DJP0ERutG270zUH30I4M/7JJ6ohn+ooXeRrROIuMW0jqHI+2dev4ihVflYwr QAOGe4YdRB4ENXt81DDkeA== 0001012870-00-001265.txt : 20000310 0001012870-00-001265.hdr.sgml : 20000310 ACCESSION NUMBER: 0001012870-00-001265 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000309 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUPPORT COM INC CENTRAL INDEX KEY: 0001104855 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-30674 FILM NUMBER: 564290 BUSINESS ADDRESS: STREET 1: 575 BROADWAY CITY: REDWOOD STATE: CA ZIP: 94063 BUSINESS PHONE: 6502334539 MAIL ADDRESS: STREET 1: 575 BROADWAY CITY: REDWOOD STATE: CA ZIP: 94063 S-1/A 1 AMENDMENT NO. 1 TO THE FORM S-1 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) Delaware 7389 94-3282005 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of incorporation or organization) Classification Code Number) Identification No.)
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: 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
---------------- 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. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- EXPLANATORY NOTE This Amendment No. 1 is being filed solely for the purpose of filing exhibits. 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.
Payable by Registrant ---------- 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........................................................... * =======
- -------- * 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 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 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.
Name Title Date ---- ----- ---- /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
/s/ Radha Ramaswami Basu *By:______________________ Radha Ramaswami Basu (Attorney-in-Fact) II-3 EXHIBIT INDEX
Exhibit Number Description of Document ------- ----------------------- 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).
- ------- * To be filed by amendment. ** Previously Filed. + Confidential Treatment Requested. EX-4.10 2 WARRANT AGREEMENT 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- 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- 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- 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- 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- 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- 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: -7- (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- 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- 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 -10- 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- 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. ------------- -12- 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: -13- (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. -14- 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 ------------------------ ------------------------ -15- 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. -16- 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. -17- EX-10.1 3 REGISTRANT'S 1998 STOCK OPTION PLAN 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 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 (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 (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 (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 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 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 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 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 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 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 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. 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. 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 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. (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 income tax withholding by the Company on the compensation income recognized by the Optionee. SUPPORT.COM, INC. By:____________________________ Title:_________________________ 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: __________________________________ __________________________________ 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 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. (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. (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 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: - ------- _______________________________ _______________________________ _______________________________ 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 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__ 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 (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 (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 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 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 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 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 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 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 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 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 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 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] EX-10.17 4 ENTERPRISE LICENSE AGREEMENT 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
Licensee: General Electric Company Contact: Kevin Hofmann - ----------------------------------------------------------------------------------------------- Address: 3135 Easton Turnpike, Fairfield, CT 06431 Phone: (203) 373-*** - ----------------------------------------------------------------------------------------------- Email: kevin.hofmann@corporate.ge.com Fax: (203) 373-*** - -----------------------------------------------------------------------------------------------
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. 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. 2 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 ------- 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 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 4 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 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. 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, 7 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. 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 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 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. 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 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 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. 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. 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. 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 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. 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. 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. 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. Product Enhancements *** *** 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 ***.
15 February 2000 /s/ Radha R. Basu * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. Release Schedule Continuous and Growing *** 15 February 2000 /s/ Radha R. Basu * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. -----END PRIVACY-ENHANCED MESSAGE-----