Blueprint





 







Exhibit 4.1


 


 








SECTION 382 TAX BENEFITS PRESERVATION
PLAN


 



by
and between


 



SUPPORT.COM, INC.



and

 



COMPUTERSHARE TRUST COMPANY, N.A.,

 



as Rights Agent,

 



Dated as of August 21, 2019


 


 


 


 


 


 




 








 







TABLE OF CONTENTS

 



Page

 


	


Section 1.

	


Definitions.

	


1


	


Section 2.

	


Appointment of Rights Agent

	


8


	


Section 3.

	


Issuance of Right Certificates.

	


9


	


Section 4.

	


Form of Right Certificates; Notice to Rights Agent as to Acquiring
Person.

	


10


	


Section 5.

	


Countersignature and Registration.

	


11


	


Section 6.

	


Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right
Certificates.

	


12


	


Section 7.

	


Exercise of Rights; Purchase Price; Expiration Date of
Rights.

	


12


	


Section 8.

	


Cancellation and Destruction of Right Certificates.

	


14


	


Section 9.

	


Reservation and Availability of Shares of Preferred
Stock.

	


15


	


Section 10.

	


Securities Issuable Upon Exercise

	


16


	


Section 11.

	


Adjustments to Number and Kind of Securities or Other Property,
Number of Rights or Purchase Price.

	


16


	


Section 12.

	


Certification of Adjustments

	


23


	


Section 13.

	


Fractional Rights and Fractional Shares.

	


23


	


Section 14.

	


Rights of Action

	


24


	


Section 15.

	


Agreement of Right Holders

	


24


	


Section 16.

	


Right Certificate Holder Not Deemed a Stockholder

	


25


	


Section 17.

	


Concerning the Rights Agent.

	


25


	


Section 18.

	


Merger or Consolidation or Change of Name of Rights
Agent.

	


26


	


Section 19.

	


Duties of Rights Agent

	


26


	


Section 20.

	


Change of Rights Agent

	


29


	


Section 21.

	


Issuance of New Right Certificates

	


30


	


Section 22.

	


Redemption.

	


30


	


Section 23.

	


Exchange.

	


31


	


Section 24.

	


Notice of Proposed Actions.

	


32


	


Section 25.

	


Notices

	


32


	


Section 26.

	


Supplements and Amendments

	


33


	


Section 27.

	


Successors

	


34


	


Section 28.

	


Benefits of this Agreement

	


34


	


Section 29.

	


Governing Law

	


34


	


Section 30.

	


Counterparts

	


34


	


Section 31.

	


Descriptive Headings

	


34


	


Section 32.

	


Severability

	


34


	


Section 33.

	


Determination and Actions by the Board, etc

	


35


	


Section 34.

	


Force Majeure

	


35


	


Section 35.

	


Further Assurance

	


35







 



Exhibit A
- 


Amended and Restated Certificate of Designation of Series B Junior
Participating Preferred Stock







Exhibit B
- 


Form of Right Certificate







Exhibit C
- 


Form of Summary of Rights





 




 








 







SECTION 382 TAX BENEFITS PRESERVATION
PLAN

 


SECTION
382
TAX BENEFITS PRESERVATION PLAN (this
“Agreement”),
dated August 21, 2019, between Support.com, Inc., a Delaware
corporation (the “Company”),
and Computershare Trust Company, N.A., a federally chartered trust
company, as rights agent (the “Rights
Agent”).

 



RECITALS:

 


WHEREAS,
the Company
and certain of its Subsidiaries have generated certain Tax Benefits
(as hereinafter defined) for United States federal income tax
purposes, such Tax Benefits may potentially provide valuable
benefits to the Company, the Company desires to avoid an
“ownership change” within the meaning of Section
382 (as
hereinafter defined), and the Treasury Regulations (as hereinafter
defined) promulgated thereunder, and thereby preserve its ability
to utilize such Tax Benefits, and, in furtherance of such
objective, the Company desires to enter into this Agreement;
and

 


WHEREAS,
on August
21, 2019, the Board of Directors of the Company (the
“Board”)
authorized and declared a dividend of one right (a
“Right”)
for each share of the Common Stock (as hereinafter defined) of the
Company outstanding as of the Close of Business (as defined herein)
on September 3, 2019 (the “Record
Date”), each Right
representing the right to purchase, upon the terms and subject to
the conditions herein, one one-thousandth of a share of Preferred
Stock (as defined below) of the Company (each one one-thousandth of
a share, a “Unit”),
and (ii) further authorized the issuance, upon the terms and
subject to the conditions herein, of one Right with respect to each
share of Common Stock of the Company that shall become outstanding
between the Record Date and the earlier of the Distribution Date
and the Expiration Date (each as defined herein) (or thereafter in
accordance with 
Section 21 hereof).

 


NOW,
THEREFORE, in consideration of
the premises and the mutual agreements herein set forth and
intending to be legally bound hereby, the parties hereby agree as
follows:

 


Section
1.                      Definitions.

 



For purposes of this Agreement, the following terms shall have the
meanings indicated:

 


(a)           “Acquiring
Person” means
any Person who or which, together with all Affiliates and
Associates of such Person, is or becomes the Beneficial Owner of
4.99% or more of the shares of Common Stock of the Company then
outstanding, as calculated pursuant hereto, but shall not
include:

 


(i)           any
Exempt Person;

 


(ii)           any
“direct public group” within the meaning of Treasury
Regulations Section 1.382-2T(j)(2)(ii);

 


 




 

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(iii)           any
Existing Holder unless and until such Existing Holder acquires
Beneficial Ownership of any additional shares of Common Stock of
the Company after the first public announcement by the Company of
the adoption of this Agreement (other than pursuant to a stock
split, reverse stock split, stock dividend, reclassification or
similar transaction effected by the Company) at a time when such
Existing Holder is still the Beneficial Owner of 4.99% or more of
shares of the Common Stock of the Company then outstanding, in
which case such Person shall be an Acquiring
Person;

 


(iv)           any
Person who as the result of an acquisition of shares of Common
Stock by the Company (or any Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the
Company, or any Person organized, appointed or established by the
Company for or pursuant to the terms of any such plan) which, by
reducing the number of shares of Common Stock of the Company
outstanding, increases the proportionate number of shares of Common
Stock of the Company Beneficially Owned by such Person to 4.99% or
more of the shares of Common Stock of the Company then
outstanding; provided, however, that, if a Person shall become the
Beneficial Owner of 4.99% or more of the shares of Common Stock of
the Company then outstanding by reason of acquisition of shares by
the Company (or any Subsidiary of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, or any Person
organized, appointed or established by the Company for or pursuant
to the terms of any such plan) and shall, after the first public
announcement by the Company of such share acquisitions by the
Company (or any Subsidiary of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, or any Person
organized, appointed or established by the Company for or pursuant
to the terms of any such plan), becomes the Beneficial Owner of any
additional shares (other than pursuant to a stock split, reverse
stock split, stock dividend, reclassification or similar
transaction effected by the Company) of Common Stock of the Company
and immediately thereafter is the Beneficial Owner of 4.99% or more
of the shares of Common Stock of the Company then outstanding, then
such Person shall be an Acquiring Person; or

 


(v)           any
Person who or which, within ten (10) Business Days of being
requested by the Company to advise it regarding the same, certifies
to the Company that such Person acquired shares of Common Stock in
excess of 4.99% inadvertently or without knowledge of the terms of
the Rights and who or which, together with all Affiliates and
Associates, thereafter within ten (10) Business Days following such
certification reduces such Person’s, together with its
Affiliates’ and Associates’, Beneficial Ownership to
less than 4.99% of the shares of Common Stock then
outstanding; provided, however, that (x) if the Person requested to so
certify fails to do so within ten (10) Business Days or breaches or
violates such certification, then such Person shall become an
Acquiring Person immediately after such ten (10) Business Day
period or such breach or violation or (y) if the Person together with its
Affiliates and Associates fails to reduce Beneficial Ownership to
less than 4.99% within ten (10) Business Days following such
certification, then such Person shall become an Acquiring Person
immediately after such ten (10) Business Day
period;

 


 




 

2








 






 


 

 



provided, however,
that no Person shall be an Acquiring Person if the Board shall have
affirmatively determined, prior to or after the Distribution Date,
in light of the intent and purposes of this Agreement or other
circumstances facing the Company, that such Person shall not be
deemed an Acquiring Person, unless and until such Person shall
again become an Acquiring Person.

 


In determining whether
a Person owns 4.99% or more of the shares of Common Stock of the
Company then outstanding, for all purposes of this Agreement, all
of the Common Stock of the Company Beneficially Owned by such
Person shall be taken into account in the numerator and, for
purposes of the denominator, any calculation of the number of
shares of Common Stock outstanding at any particular time shall be
made pursuant to and in accordance with Section 382 and the Treasury
Regulations promulgated thereunder. Without limiting the foregoing,
any Person (other than a “direct public group” within
the meaning of Treasury Regulations Section 1.382-2T(j)(2)(ii))
shall be treated as the Beneficial Owner of 4.99% or more shares of
the Common Stock of the Company then outstanding if, in the
determination of the Board, that Person would be treated as a
“5-percent stockholder” for purposes of Section
382
(substituting “4.99” for “5” each time
“five” or “5” is used in or for purposes of
Section 382). Notwithstanding
anything to the contrary set forth herein, any shares of Common
Stock of which a Person or any Affiliate or Associate becomes the
Beneficial Owner pursuant to an equity compensation award granted
to such Person by the Company or as a result of an adjustment by
the Company to the number of shares of Common Stock represented by
such equity compensation award pursuant to the terms thereof shall,
solely for purposes of determining the number of shares of Common
Stock of which such Person or any Affiliate or Associate is the
Beneficial Owner at any time, not be included in
(x) the
calculation of the number of shares of Common Stock outstanding
or (y) the particular
percentage of the number of shares of Common Stock of which such
Person and/or any Affiliate or Associate of such Person is the
Beneficial Owner.

 


(b)           “Adjustment
Shares” shall
have the meaning set forth in Section
11(a)(ii).

 


(c)       
   “Affiliate” and “Associate” shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Exchange Act as in effect on the date of
this Agreement, and to the extent not included within the foregoing
clause of this Section
1(c), shall also
include, with respect to any Person (other than an Exempt Person or
an Existing Holder), any other Person whose Common Stock would be
deemed constructively or otherwise owned by, or otherwise
aggregated with shares owned by, such first Person or owned by a
single “entity” pursuant to the provisions of
Section 382;
provided,
however, that a Person will not be deemed to
be the Affiliate or Associate of another Person solely because
either or both Persons are or were directors of the
Company.

 


 




 

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(d)           A
Person shall be deemed the “Beneficial Owner” of, and to
“Beneficially
Own,” any
securities:

 


(i)         
which such Person or any of
such Person’s Affiliates or Associates (A) directly or indirectly has the
right to vote or dispose of, alone or in concert with others,
or (B) is deemed to
beneficially own, directly or indirectly, within the meaning of
Rule 13d-3 of the General Rules and Regulations under the Exchange
Act as in effect on the date of this Agreement, including, with
respect to both clause (A) and clause (B), pursuant to any
agreement, arrangement or understanding (whether or not in
writing), but only if the effect of such agreement, arrangement or
understanding is to treat such Persons as an “entity”
under Section 1.382-3(a)(l) of the Treasury
Regulations; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to Beneficially Own securities (including
rights, options or warrants) which are convertible or exchangeable
into or exercisable for Common Stock except to the extent the
acquisition or transfer of such rights, options or warrants would
reasonably be expected to result in the rights, options or warrants
being treated as exercised on the date of their acquisition or
transfer under Section 382;

 


(ii)        
which such Person or any of
such Person’s Affiliates or Associates owns, directly or
indirectly, or has the right to acquire (whether such right is
exercisable immediately, or only after the passage of time,
compliance with regulatory requirements, the fulfillment of a
condition, or otherwise) pursuant to any agreement, arrangement or
understanding (whether or not in writing), or upon the exercise of
conversion rights, exchange rights, warrants, options, or other
rights (including, without limitation, within the meaning of
Section 382) or
otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (A) any shares of Common Stock by
virtue of owning securities or other interests (including rights,
options or warrants) that are convertible or exchangeable into, or
exercisable for, such shares of Common Stock, except to the extent
that upon the issuance, acquisition or transfer of such securities
or other interests, such securities or other interests would be
treated as exercised under Section 1.382-4(d) or other applicable sections
of the Treasury Regulations, (B) securities tendered pursuant to a
tender offer or exchange offer made by or on behalf of such Person
or any of such Person’s Affiliates or Associates until such
tendered securities are accepted for purchase or exchange or
(C) securities issuable
upon the exercise or exchange of Rights;

 


(iii)       
which are owned, directly
or indirectly, by any other Person, if such Person or any of such
Person’s Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing) with such
other Person or any of such other Person’s Affiliates or
Associates for the purpose of acquiring, holding, voting or
disposing of any securities of the Company, but only if the effect
of such agreement, arrangement or understanding is to treat such
Persons as an “entity” under Section
1.382-3(a)(l) of the
Treasury Regulations; and




 






   
           
           
           
    (iv)        
to the extent not included within the
foregoing provisions of this Section, a Person shall be deemed the
“Beneficial Owner” of and shall be deemed to
“beneficially own” or have “beneficial
ownership” of securities, if such Person would be deemed to
constructively own such securities pursuant to Sections
1.382-2T(h)


and
1.382-4(d) of the Treasury
Regulations, such Person owns such securities pursuant to a
“coordinated acquisition” treated as a single
“entity” as defined in Section 1.382-3(a)(l) of the Treasury
Regulations, or such securities are otherwise aggregated with
securities owned by such Person, pursuant to the provisions of
Section 382;
 

  




 




 

4








 






 


 

 



provided, however,
that (i) a Person will not
be deemed the Beneficial Owner of, or to Beneficially Own, any
security (A) if such Person has
the right to vote such security pursuant to an agreement,
arrangement or understanding (whether or not in writing)
which (1) arises solely from
a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, Section 14(a) of the Exchange
Act by means of a solicitation statement filed on Schedule 14A, and
(2) is not also then reportable on Schedule 13D under the Exchange
Act (or any comparable or successor report), or (B) if such beneficial
ownership arises solely as a result of such Person’s status
as a “clearing agency,” as defined in Section 3(a)(23)
of the Exchange Act; (ii) nothing in this definition will cause a
Person engaged in business as an underwriter of securities to be
the Beneficial Owner of, or to Beneficially Own, any securities
acquired through such Person’s participation in good faith in
an underwriting syndicate until the expiration of forty (40)
calendar days after the date of such acquisition, or such later
date as the Board may determine in any specific case; (iii) subject
to 
Section 1(d)(iv), above, a Person shall
not be deemed the Beneficial Owner of, or to Beneficially Own, any
securities if (A) such securities
would not be deemed constructively or otherwise owned by, or
otherwise aggregated with shares owned by, such Person, and
(B) such
securities would not be deemed constructively or otherwise owned by
a single “entity,” in each case, for purposes of
Section 382; and (iv) a Person
shall not be deemed the Beneficial Owner of, or to Beneficially Own
any securities which such Person or any of such Person’s
Affiliates or Associates would otherwise be deemed to Beneficially
Own pursuant to this 
Section 1(d) solely as a result of
any merger or other acquisition agreement between the Company and
such Person (or one or more of such Person’s Affiliates or
Associates), or any tender, voting or support agreement entered
into by such Person (or one or more of such Person’s
Affiliates or Associates) in connection therewith, if, prior to
such Person becoming an Acquiring Person, the Board has approved
such merger or other acquisition agreement and any such tender,
voting or support agreement entered into in connection
therewith.


 

(e) 
“Appropriate
Officer” shall have the
meaning set forth in Section 19(b).





(f)      
“Board” shall have the meaning set
forth in the recitals.

 


(g)     
“Business Day” shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive
order to close.

 


(h)     
“Close of Business” on any given date shall mean
5:00 P.M. New York City time, on such date; provided, however, that if such date is not a Business
Day, it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.

 


(i)      
“Code” shall have the meaning set
forth in the preamble.

 


(j)      
“Common Stock.” when used with reference to
the Company, shall mean the common stock (presently $0.0001 par
value per share) of the Company. “Common Stock,” when used with reference to any
Person other than the Company, shall mean shares of the capital
stock with the greatest voting power of such other Person or, if
such other Person is a subsidiary of another Person, the entity
which ultimately controls such first-mentioned Person.
“Common
Stock” when
used with reference to any Person not organized in corporate form
shall mean units of beneficial interest which (x) represent the right to participate
generally in the profits and losses of such Person (including
without limitation any flow-through tax benefits resulting from an
ownership interest in such Person) and (y) are entitled to exercise the
greatest voting power of such Person or, in the case of a limited
partnership, have the power to remove the general partner or
partners.

 


(k)      
“Company” shall have the meaning set
forth in the preamble.

 


(l)       
“Code” shall mean the Internal Revenue
Code of 1986, as amended.

 


(m)     
“Current Market
Price” shall
have the meaning set forth in Section
11(d).

 


(n)      
“Current Value” shall have the meaning set
forth in Section
11(a)(iii).

 


(o)      
“Distribution Date” shall have the meaning set
forth in Section
3(a).

 


 




 

5








 






 


 

 


(p)         
“Equivalent Preferred
Securities”
shall have the meaning set forth in Section
11(b).

 


(q)         
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended,

 


(r)           “Excess
Exchange Shares” shall have the meaning set
forth in Section
23.

 


(s)          
“Existing Holder” shall mean any Person who,
immediately prior to the first public announcement of the adoption
of this Agreement by the Company, is the Beneficial Owner of 4.99%
or more of the Common Stock then outstanding, together with any
Affiliates and Associates of such Person.

 


(t)          
“Exempt Person” shall mean (i) the Company or any Subsidiary of
the Company, in each case including, without limitation, the
officers and board of directors thereof acting solely in their
fiduciary capacity, (ii) any employee benefit plan of the Company
or any Subsidiary of the Company or any entity or trustee
organized, appointed, established or holding shares of Common Stock
of the Company for or pursuant to the terms of any such plan, or
for the purpose of funding other employee benefits for employees of
the Company or any Subsidiary of the Company, (iii) any Person who
the Board determines, in its sole discretion, prior to the time
such Person would otherwise be an Acquiring Person, should be
permitted to become the Beneficial Owner of up to a number of the
shares of Common Stock determined by the Board (the
“Exempted
Number”) and
be exempted from being an Acquiring Person, unless and until such
Person acquires Beneficial Ownership of shares of Common Stock of
the Company in excess of the Exempted Number (other than pursuant
to a stock split, reverse stock split, stock dividend,
reclassification or similar transaction effected by the Company) in
which case such Person shall be an Acquiring Person;
provided,
however, that the Board may make such
exemption subject to such conditions, if any, which the Board may
determine, and (iv) any Person who is a transferee from the estate
of an Exempt Person and who receives Common Stock of the Company as
a bequest or inheritance from such Exempt Person, but only for so
long as such transferee continues to be the Beneficial Owner of
4.99% or more of the then outstanding shares of Common Stock of the
Company.

 


(u)       
“Expiration Date” shall mean the earliest
of (i) the date on
which all of the Rights are redeemed as provided in
Section
22, (ii) the date on
which the Rights are exchanged as provided in Section
23, (iii) the
consummation of a reorganization transaction entered into by the
Company resulting in the imposition of stock transfer restrictions
that the Board, in its sole discretion, determines will provide
protection for the Company’s Tax Benefits similar to that
provided by this Agreement, (iv) the Close of Business on the
effective date of the repeal of Section 382 (but excluding the repeal or
withdrawal of any Treasury Regulations thereunder), or any other
change, if the Board determines in its sole discretion, that this
Agreement is no longer necessary or desirable for the preservation
of Tax Benefits, (v)
the date on which the Board otherwise determines, in its sole
discretion, that this Agreement is no longer necessary to preserve
the Tax Benefits, and (vi) the beginning of a taxable year of the
Company to which the Board determines in its sole discretion, that
no Tax Benefits may be carried forward.

 


 




 

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(v)         
“Final Expiration
Date” shall
mean the earliest of (i) the Close of Business on the day following
the certification of the voting results of the Company’s 2020
annual meeting of stockholders, if at such stockholder meeting a
proposal to approve this Agreement has not been passed by the
affirmative vote of the majority of the votes cast at the 2020
annual meeting of stockholders or any other meeting of stockholders
of the Company duly held prior to August 21, 2020, and (ii) August
21, 2022, provided that neither (i) nor (ii) shall apply if a
Distribution Date has occurred in advance of the effectiveness of
either (i) or (ii).

 


(w)         
“NASDAQ” shall mean the NASDAQ Stock
Market or any of its listing venues.

 


(x)           “NYSE”
shall mean the New York Stock Exchange.

 


(y)           “Person”
shall mean any individual, firm, corporation, partnership, limited
liability company, limited liability partnership, association,
trust, syndicate or other entity, or any group of persons making a
“coordinated acquisition” of shares of Common Stock or
otherwise treated as an entity within the meaning of Section
1.382-3(a)(l) of the
Treasury Regulations or otherwise for purposes of Section
382, or any successor
provision or replacement provision, and includes any successor (by
merger or otherwise) of such individual or
entity.

 


(z)           “Preferred
Stock” shall
mean shares of Series B Junior Participating Preferred Stock, par
value $0.0001 per share, of the Company having the voting powers,
designations, preferences and relative rights described in the
Amended and Restated Certificate of Designation, Preferences and
Rights set forth in Exhibit
A hereto, and, to
the extent that there are not a sufficient number of shares of
Series A Junior Participating Preferred Stock authorized to permit
the full exercise of the Rights, any other series of preferred
stock of the Company designated for such purpose containing terms
substantially similar to the terms of the Series B Junior
Participating Preferred Stock.

 


(aa)        
“Purchase Price” shall have the meaning set
forth in Section
7(b).

 


(bb)        
“Record Date” shall have the meaning set
forth in the recitals.

 


(cc)        
“Redemption Price” shall have the meaning set
forth in Section
22(a).

 


(dd)        
“Right” shall have the meaning set
forth in the preamble.

 


(ee)         
“Rights Agent” shall have the meaning set
forth in the preamble.

 


(ff)           “Right
Certificate”
shall have the meaning set forth in Section
3(a).

 


(gg)         
“Section 11(a)(ii) Event” shall have the meaning set
forth in Section
11(a)(ii).

 


(hh)         
“Section 382” shall mean Section
382 of the Code and the
Treasury Regulations promulgated thereunder.

 


(ii)        
   “Securities Act” shall mean the Securities Act
of 1933, as amended.

 


 




 

7








 






 





 


(jj)            
“Share Equivalents” shall have the meaning set
forth in Section
11(a)(iii).

 


(kk)           “Stock
Acquisition Date” shall mean the first date of a
public announcement (which, for purposes of this definition, shall
include, without limitation, a report filed or amended pursuant to
Section 13(d) under the Exchange Act) by the Company or an
Acquiring Person indicating that an Acquiring Person has become
such; provided that, if such Person is determined by the Board not
to be or have become an Acquiring Person, then no Stock Acquisition
Date shall be deemed to have occurred.

 


(ll)           
“Subsidiary” of a Person shall mean any
corporation or other entity of which securities or other ownership
interests having ordinary voting power sufficient to elect or
appoint a majority of the board of directors or other persons
performing similar functions are beneficially owned, directly or
indirectly, by such Person and any corporation or other entity that
is otherwise controlled by such Person.

 


(mm)        
“Substitution Period” shall have the meaning set
forth in Section
11(a)(iii).

 


(nn)      
    “Summary of Rights” shall have the meaning set
forth in Section
3(b).

 


(oo)          
“Tax Benefits” shall mean the net operating
loss carryforwards, capital loss carryforwards, general business
credit carryforwards, alternative minimum tax credit carryforwards
and foreign tax credit carryforwards, as well as any loss or
deduction attributable to a “net unrealized built-in
loss” within the meaning of Section 382, and the Treasury Regulations
promulgated thereunder, of the Company or any direct or indirect
Subsidiary thereof.

 


(pp)       
   “Trading Day” shall have the meaning set
forth in Section
11(d)(i).

 


(qq)          
“Treasury
Regulations”
shall mean final and temporary (but not proposed) regulations of
the U.S. Department of the Treasury promulgated under the Code, as
such regulations may be amended from time to
time.

 


(rr)           
“Triggering Event” shall mean any
Section
11(a)(ii) Event.

 


(ss)       
    “Trust” shall have the meaning set
forth in Section
23(a).

 


(tt)            
“Trust Agreement” shall have the meaning set
forth in Section
23(a).

 


(uu)          
“Unit” shall have the meaning set
forth in the recitals.

 


Section
2.              
Appointment of Rights
Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section
3 hereof, shall
prior to the Distribution Date also be the holders of the Common
Stock) in accordance with the express terms and conditions of this
Agreement (and no implied terms and conditions), and the Rights
Agent hereby accepts this appointment. The Company may from time to
time appoint such co-Rights Agents as it may deem necessary or
desirable, upon ten (10) days’ prior written notice the
Rights Agent. In the event the Company appoints one or more
co-Rights Agents, the respective duties of the Rights Agents and
any co-Rights Agents shall be as the Company shall determine and
the Company shall promptly notify the Rights Agent of such duties.
The Rights Agent shall have no duty to supervise, and in no event
shall be liable for, the acts or omissions of any co-Rights
Agent.

 


 




 

8








 






 


 

 


Section
3.                 
Issuance of Right
Certificates.

 


(a)           Until
the Close of Business on the earlier to occur of
(i) the tenth (10th)
calendar day after the Stock Acquisition Date or (ii) the tenth
(10th) calendar day (or such later time as determined by the Board
but in no event later than the time such Person becomes an
Acquiring Person) after the date of the commencement by any Person
of a tender or exchange offer, upon the successful consummation of
which such Person, together with its Affiliates and Associates,
would be an Acquiring Person (irrespective of whether any shares
are actually purchased pursuant to such offer), or in the case of
clause (ii) such later date specified by the Board which date shall
not be later than the date specified in clause (i) (the earliest of
such dates being referred to herein as the
“Distribution
Date”),
(x) the Rights will be
evidenced by the certificates for the shares of Common Stock of the
Company registered in the names of the holders of the shares of
Common Stock of the Company (which certificates for shares of
Common Stock of the Company shall be deemed also to be certificates
for Rights) or, with respect to shares of Common Stock of the
Company not represented by certificates, the Rights related thereto
will be evidenced by the notation on the records of the Company
representing these shares, and, in each case, not by separate
certificates, (y)
the registered holders of shares of Common Stock of the Company
shall also be the registered holders of the associated Rights,
and (z) the Rights
(and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the underlying
shares of Common Stock of the Company (including a transfer to the
Company). As soon as practicable after the Distribution Date, the
Rights Agent will, if requested to do so by the Company and
provided with all necessary information and documents, at the
expense of the Company, send, by first-class, postage prepaid mail,
to each record holder of shares of Common Stock of the Company as
of the Close of Business on the Distribution Date, at the address
of the holder shown on the records of the Company, a certificate in
substantially the form of Exhibit
B (the
“Right
Certificate”)
evidencing the Rights underlying the shares of Common Stock of the
Company so held, provided,
that all procedures relating to actions to be taken or information
to be provided with respect to Rights recorded in uncertificated or
book-entry form, and all requirements with respect to the form of
any Right Certificate set forth in this Agreement, may be modified
as necessary or appropriate to reflect uncertificated or book-entry
ownership subject to the prior written consent of the Rights Agent.
As of and after the Distribution Date, the Rights will be evidenced
solely by the Right Certificates. The Company shall promptly notify
the Rights Agent in writing upon the occurrence of the Distribution
Date and, if notification is given orally, the Company shall
confirm the same in writing on or prior to the next succeeding
Business Day. Until such written notice is received by the Rights
Agent, the Rights Agent may presume conclusively for all purposes
that the Distribution Date has not occurred.

 


(b)           As
soon as practicable following the Record Date, the Company will
send a copy of the Summary of the Terms of the Rights,
substantially in the form attached hereto as Exhibit
C (the
“Summary of
Rights”), by
postage prepaid mail, to each record holder of the Common Stock as
of the Close of Business on the Record Date, at the address of such
holder shown on the records of the Company.

 


(c)           Until
the Distribution Date (or, if earlier, the Expiration Date or Final
Expiration Date), the surrender for transfer of any certificate for
shares of Common Stock of the Company shall also constitute the
surrender for transfer of the Rights associated with the shares of
Common Stock represented thereby and the transfer of shares of
Common Stock on the records of the Company shall also constitute
the transfer of the Rights associated with the
shares.

 


(d)           Certificates
issued for shares of Common Stock of the Company (including,
without limitation, certificates issued upon transfer or exchange
of shares of Common Stock of the Company) after the Record Date,
but prior to the earlier of the Distribution Date, the Expiration
Date or the Final Expiration Date, shall have impressed on, printed
on, written on or otherwise affixed to them the following
legend:

 


“This certificate
also evidences and entitles the holder to certain rights (the
“Rights”)
as set forth in a Section 382 Tax Benefits
Preservation Plan by and between Support.com, Inc. (the
“Company”) and Computershare Trust Company, N.A., as
Rights Agent (or any successor rights agent), dated as of August
21, 2019, as from time to time amended, extended or renewed (the
“Plan”),
the terms of which are incorporated herein by reference and a copy
of which is on file at the principal executive office of the
Company. Under certain circumstances, as set forth in the Plan,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to
the holder of record of this certificate a copy of the Plan,
without charge, within ten Business Days (as defined in the Plan)
after receipt of a written request therefor. Under certain
circumstances, as provided in the Plan, Rights issued to or
beneficially owned by Acquiring Persons or their Associates or
Affiliates (as such terms are defined in the Plan) or any purported
subsequent holder of such Rights will become null and void. The
Rights shall not be exercisable, and shall be void so long as held,
by a holder in any jurisdiction where the requisite qualification
to the issuance to such holder, or the exercise by such holder, of
the Rights in such jurisdiction shall not have been obtained or be
obtainable.”

 


 




 

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In
the case of the initial transaction statement or subsequent period
statements with respect to shares of Common Stock of the Company
not represented by certificates (including, without limitation,
upon transfer or exchange of Common Stock) after the Record date,
but prior to the earlier of the Distribution Date or the Expiration
Date, registration of such shares in the Company’s share
register shall be deemed also to be evidence of such Rights, and
such statements will include a legend in substantially the
following form:

 


“The registration in the share register of
Support.com of the shares of common stock to which this initial
transaction or subsequent periodic statement relates also evidences
and entitles the registered holder of such shares to certain rights
(the “Rights”)
as set forth in a Section 382 Tax Benefits Preservation Plan by and
between Support.com, Inc. and Computershare Trust Company, N.A., as
Rights Agent (or any successor rights agent), dated as of
August
21, 2019, as from time to time
amended, extended or renewed (the “Plan”),
the terms of which are incorporated herein by reference and a copy
of which is on file at the principal executive office of the
Company. Under certain circumstances, as set forth in the Plan,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by such registration. The Company will mail to
the holder of this statement a copy of the Plan, without charge,
within ten Business Days (as defined in the Plan) after receipt of
a written request therefor. Under certain circumstances, as
provided in the Plan, Rights issued to or beneficially owned by
Acquiring Persons or their Associates or Affiliates (as such terms
are defined in the Plan) or any purported subsequent holder of such
Rights will become null and void. The Rights shall not be
exercisable, and shall be void so long as held, by a holder in any
jurisdiction where the requisite qualification to the issuance to
such holder, or the exercise by such holder, of the Rights in such
jurisdiction shall not have been obtained or be
obtainable.”

 


The failure to print
the foregoing legend on any such certificate, initial transaction
statement or subsequent period statement representing shares of
Common Stock of the Company or any defect therein shall not affect
in any manner whatsoever the application or interpretation of the
provisions of 
Section 7(e) hereof.

 


Section
4.                      Form
of Right Certificates; Notice to Rights Agent as to Acquiring
Person.

 


(a)           The
Right Certificates (and the forms of election to purchase shares
and forms of assignment to be printed on the reverse thereof),
when, as and if issued, shall be substantially in the form set
forth in Exhibit
B and may have such
marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate
(which do not affect the rights, liabilities, duties or
responsibilities of the Rights Agent) and as are not inconsistent
with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant
thereto or with any law, rule or regulation of any stock exchange
on which the Rights may from time to time be listed, or to conform
to usage. Subject to the terms and conditions hereof, the Right
Certificates evidencing the Rights, whenever issued, on their face
shall entitle the holders thereof to purchase, for each Right, one
Unit, at the Purchase Price, but the number and type of shares or
other property holders thereof shall be entitled to purchase and
the Purchase Price, shall be subject to adjustment as provided in
this Agreement.

 


 




 

10








 






 


 

 


(b)           Notwithstanding
any other provision of this Agreement, any Right Certificate that
represents Rights that may be or may have been at any time on or
after the Distribution Date beneficially owned by an Acquiring
Person or any Affiliate or Associate thereof (or any purported
transferee of such Rights) may have impressed on, printed on,
written on or otherwise affixed to it the following
legend:

 


“The beneficial
owner of the Rights (the “Rights”)
represented by this Right Certificate may be an Acquiring Person or
an Affiliate or Associate (as such terms are defined in the
Section 382 Tax Benefits
Preservation Plan by and between Support.com, Inc. and
Computershare Trust Company, N.A., as Rights Agent (or any
successor rights agent), dated as of August 21, 2019, as from time
to time amended, extended or renewed (the
“Plan”))
of an Acquiring Person or a subsequent holder of a Right
Certificate beneficially owned by such Persons (as defined in the
Plan). Accordingly, under certain circumstances as provided in the
Plan, this Right Certificate and the Rights represented hereby will
be null and void.”

 



The provisions of this Agreement shall be operative whether or not
the foregoing legend is imprinted on any such Right Certificate.
The Company shall give notice to the Rights Agent promptly after it
becomes aware of the existence of any Acquiring
Person.

 


Section
5.                      Countersignature
and Registration.

 


(a)           The
Right Certificates shall be duly executed on behalf of the Company
by the Chief Executive Officer, Chief Financial Officer, General
Counsel or any Vice President of the Company, either manually or by
facsimile signature, and shall have affixed thereto the
Company’s seal or a facsimile thereof which shall be attested
by the Secretary, Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, either manually or by facsimile
signature. The Right Certificates shall be countersigned by the
Rights Agent, manually or by in facsimile signature, and shall not
be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, the Right Certificates nevertheless may be
countersigned by the Rights Agent, issued and delivered with the
same force and effect as though the person who signed the Right
Certificates had not ceased to be such officer of the Company; and
any Right Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign the
Right Certificate, although at the date of the execution of this
Agreement any such person was not such an
officer.

 


(b)           Following
the Distribution Date and receipt by the Rights Agent of written
notice to that effect and all other relevant information referred
to in Section
3(a), the Rights
Agent will keep or cause to be kept books for registration and
transfer of the Right Certificates issued hereunder. The books
shall show the names and addresses of the respective holders of the
Right Certificates, the number of Rights evidenced on its face by
each of the Right Certificates, the date of each of the Right
Certificates, and the certificate numbers for each of the Right
Certificates.

 


 




 

11








 






 


 

 


Section
6.                      Transfer,
Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right
Certificates.

 


(a)           Subject
to the provisions of Section
4(b),
Section
7(e) and
Section
13(b), at any time
after the Close of Business on the Distribution Date and at or
prior to the Close of Business on the earlier of the Expiration
Date or the Final Expiration Date, any Right Certificate or Right
Certificates may be (a) transferred or (b) split up, combined or exchanged for
another Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of Units (and/or other
securities or property, as the case may be) as the Right
Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Right Certificate shall make such
request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate to be transferred, split up,
combined or exchanged at the office of the Rights Agent designated
for this purpose, accompanied by a signature guarantee by an
“Eligible Guarantor Institution” that is a member or
participant in the Securities Transfer Agents Medallion Program or
other comparable “signature guarantee program”
(a “signature guarantee”) and such other documentation
as the Rights Agent may reasonably request. The Right Certificates
are transferable only on the registry books of the Rights Agent.
Neither the Rights Agent nor the Company shall be obligated to take
any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the registered holder thereof
shall have (i) properly completed and signed the certificate
contained in the form of assignment set forth on the reverse side
of each such Right Certificate, (ii) provided a signature guarantee
and such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) thereof and of the Rights
evidenced thereby and the Affiliates and Associates of such
Beneficial Owner (or former Beneficial Owner) as the Company or the
Rights Agent shall reasonably request, and (iii) paid a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Right Certificates. Thereupon or as promptly as
practicable thereafter, the Company shall prepare, execute and
deliver to the Rights Agent, and the Rights Agent shall countersign
(by manual or facsimile signature) and deliver to the Person
entitled thereto a Right Certificate or Right Certificates, as the
case may be, as so requested, registered in such name or names as
may be designated by the surrendering registered holder. The Rights
Agent shall forward any such sum collected by it to the Company or
to such Persons as the Company shall specify by written notice. The
Rights Agent shall have no duty or obligation to take any action
under this Section
6 unless and until
the Rights Agent is reasonably satisfied that all such taxes and/or
charges have been paid.

 


(b)           Subject
to Section
7(d),
Section
7Section
7(e) or as otherwise
provided in this Agreement, upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them of the
loss, theft, destruction or mutilation of a Right Certificate and
such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof,
accompanied by a signature guarantee and such other documentation
as the Company or the Rights Agent may reasonably request, and, in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and, if requested by the Company,
reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will execute and
deliver to the Rights Agent a new Right Certificate of like tenor
for delivery to the registered owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated. Without
limiting the foregoing, the Company may require the owner of any
lost, stolen or destroyed Right Certificate, or his legal
representative, to give the Company a bond sufficient to indemnify
the Company and the Rights Agent against any claim that may be made
against it on account of the alleged loss, theft or destruction of
any such Right Certificate or the issuance of any such new Right
Certificate.

 


Section
7.                      Exercise
of Rights; Purchase Price; Expiration Date of
Rights.

 


(a)           Subject
to Section
7(d),
Section
7(e)
or as otherwise provided in
this Agreement, the registered holder of any Right Certificate may
exercise the Rights evidenced thereby in whole at any time or in
part from time to time after the Distribution Date upon surrender
of the Right Certificate, with the form of election to purchase on
the reverse side thereof duly executed (with such signature duly
guaranteed), to the Rights Agent at the office of the Rights Agent
designated for such purposes together with payment of the Purchase
Price (defined below), or portion thereof, as applicable, with
respect to each Unit or Units (and/or other securities or property
in lieu thereof) as to which the Rights are exercised, subject to
adjustment as hereinafter provided, at or prior to the earlier of
the Expiration Date and the Final Expiration
Date.

 


 




 

12








 






 


 

 


(b)           The
purchase price shall initially be $3.00 for each Unit issuable
pursuant to the exercise of a Right. The purchase price and the
number of Units (and/or other securities or property, as the case
may be) to be acquired upon exercise of a Right shall be subject to
adjustment from time to time as provided in Section
11. (The purchase
price, after giving effect to any adjustments, shall be referred to
as the “Purchase Price.”) The Purchase Price shall be
payable in lawful money of the United States of America, in
accordance with Section
7(c).

 


(c)           
Except as provided
in Section
7(d)
and Section
7(e),
upon receipt of a Right Certificate with the form of election to
purchase duly executed, accompanied by payment of the Purchase
Price, or the applicable portion thereof, for the Units (and/or
other securities or property, as the case may be) to be purchased
and an amount equal to any applicable tax or governmental charge,
by cash, certified check or official bank check payable to the
order of the Company or the Rights Agent, the Rights Agent shall
thereupon promptly (i) (A) requisition from the Company or any
transfer agent for the Units, certificates for the number of Units
so elected to be purchased or, in the case of shares of Units not
represented by certificates, requisition from the Company or any
transfer agent therefor a notice setting forth such number of Units
to be purchased for which registration will be made in the
Company’s share register, and the Company will comply and
hereby authorizes and directs the transfer agent or shall cause the
transfer agent (if the Rights Agent is not also the transfer agent)
to comply with all such requests or (B) if the Company, in its sole
discretion, shall have elected to deposit the shares of Preferred
Stock underlying the Units issuable upon exercise of the Rights
hereunder into a depositary, requisition from the depositary agent
depositary receipts representing the number of Units as are to be
purchased (in which case certificates for the shares of Preferred
Stock underlying the Units represented by the receipts shall be
deposited by the transfer agent with the depositary agent) and the
Company will direct the depositary agent to comply with such
request, (ii) requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance
with Section
13(b) and (iii)
promptly after receipt of the Units certificates or depositary
receipts, as the case may be, cause the same to be delivered to or
upon the order of the registered holder of the Right Certificate,
registered in such name or names as may be designated by such
holder, and, when appropriate, after receipt promptly deliver the
cash to or upon the order of the registered holder of the Right
Certificate. In the event that the Company is obligated to issue
other securities of the Company, pay cash and/or distribute other
property pursuant to Section
11(a), the Company
shall make all arrangements necessary so that those other
securities, cash and/or other property are available for
distribution by the Rights Agent, if and when necessary to comply
with this Agreement and the Rights Agent shall promptly take the
appropriate actions corresponding to the foregoing clauses (i)
through (iii), as applicable. In addition, in the case of an
exercise of the Rights by a holder pursuant to Section
11(a)(ii), the
Rights Agent shall return the Right Certificate to the registered
holder thereof after imprinting, stamping or otherwise indicating
thereon that the Rights represented by the Right Certificate no
longer include the rights provided by Section
11(a)(ii) and, if
less than all the Rights represented by such Right Certificate were
so exercised, the Rights Agent shall indicate on the Right
Certificate the number of Rights represented thereby which continue
to include the rights provided by Section
11(a)(ii). In case
the holder of any Right Certificate shall exercise (except pursuant
to Section
11(a)(ii))
less than all the Rights
evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by
the Rights Agent and delivered to the registered holder of the
Right Certificate or the holder’s duly authorized assigns,
subject to the provisions of Section
13(b).

 


 




 

13








 






 


 

 


(d)           Notwithstanding
anything in this Agreement to the contrary, neither the Rights
Agent nor the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence of any
purported exercise as set forth in this Section
7 unless the
registered holder shall have (i) properly completed and signed the
certificate contained in the form of election to purchase set forth
on the reverse side of the Right Certificate surrendered for
exercise and (ii) provided such additional evidence of the identity
of the Beneficial Owner (or former Beneficial Owner) or Affiliates
or Associates thereof as the Company or the Rights Agent shall
reasonably request.

 


(e)           Notwithstanding
anything in this Agreement to the contrary, from and after the
first occurrence of a Section
11(a)(ii) Event, any
Rights beneficially owned by (i) an Acquiring Person (or any
Affiliate or Associate thereof), (ii) a transferee of an Acquiring
Person (or of any Affiliate or Associate thereof) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any Affiliate or Associate
thereof) who becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and receives those Rights pursuant
to either (A) a
transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in the Acquiring Person or to
any Person with whom the Acquiring Person has a continuing
agreement, arrangement or understanding (whether or not in writing)
regarding the transferred Rights or (B) a transfer which the Board has
determined is part of an agreement, arrangement or understanding
which has as a primary purpose or effect the avoidance of
this Section
7(e),
shall become null and void without any further action and no holder
of those Rights shall have any rights whatsoever with respect to
those Rights, whether under any provision of this Agreement or
otherwise. The Company shall notify the Rights Agent when
this Section
7(e)
applies and shall use its
best efforts to ensure that the provisions of this
Section
7(e)
and Section
4(b) are complied
with, but neither the Company nor the Rights Agent shall have any
liability to any holder of Right Certificates or other Person as a
result of the Company’s failure to make any determinations
with respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder.

 


Section
8.                      Cancellation
and Destruction of Right Certificates.

 



All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered
to the Company or to any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if surrendered to
the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Company
shall deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any Right
Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all
cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy the cancelled Right
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.

 


 




 

14








 






 


 

 


Section
9.                      Reservation
and Availability of Shares of Preferred Stock.

 


(a)           The
Company covenants and agrees that, from and after the Distribution
Date, it will cause to be reserved and kept available, out of and
to the extent of its authorized and unissued shares of Preferred
Stock not reserved for another purpose or shares of Preferred Stock
not reserved for another purpose held in its treasury, the number
of Units that, as provided in this Agreement, will be sufficient to
permit the exercise in full of all outstanding Rights;
provided,
however, that the
Company shall not be required to reserve and keep available Units
sufficient to permit the exercise in full of all outstanding Rights
pursuant to the adjustments set forth in Section
11(a)(ii) or
Section
11(a)(iii) unless,
and only to the extent that, the Rights become exercisable pursuant
to such adjustments.

 


(b)           The
Company shall (i)
use its best efforts to cause, from and after the Distribution
Date, the Rights and all Units (and/or following the occurrence of
a Triggering Event, shares of Common Stock of the Company or other
securities, as the case may be) issued or reserved for issuance
upon exercise thereof to be listed or admitted to trading on the
NYSE, NASDAQ or another national securities exchange, and (ii) if
then necessary to permit the offer and issuance of such Units,
shares of Common Stock of the Company and/or other securities, as
the case may be, register and qualify such Units (or shares of
Common Stock of the Company or other securities, as the case may
be) under the Securities Act and any applicable state securities or
“blue
sky” laws (to
the extent exemptions therefrom are not available), cause the
related registration statement and qualifications to become
effective as soon as possible after filing and keep such
registration statement and qualifications effective (with a
prospectus at all times meeting the requirements of the Securities
Act) until the earlier of the expiration of the 60-day period referred to in
Section
11(a)(ii), the
Expiration Date or the Final Expiration Date. The Company may
temporarily suspend, for a period of time not to exceed 90 days,
the exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act and permit it to
become effective. Upon any such suspension, the Company shall issue
a public announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. The Company
shall promptly notify the Rights Agent in writing whenever it makes
a public announcement pursuant to this Section
9(b) and give the
Rights Agent a copy of such announcement. Until such written notice
is received by the Rights Agent, the Rights Agent may presume
conclusively that no such suspension has occurred or such
suspension is still in effect, as the case may be. Notwithstanding
any provision of this Agreement to the contrary, the Rights shall
not be exercisable in any jurisdiction if the requisite
qualification in such jurisdiction shall not have been obtained or
the exercise thereof shall not otherwise be permitted under
applicable law or a registration statement under the Securities Act
(if required) shall not have been declared
effective.

 


(c)           The
Company covenants and agrees that it will take all such action as
may be necessary to insure that all Units (or shares of Common
Stock or other securities) delivered upon exercise of Rights shall,
at the time of delivery of the certificates for such Units (or
shares of Common Stock of the Company or other securities) subject
to payment of the Purchase Price (or the applicable portion
thereof) in respect thereof, be duly and validly authorized and
issued and fully paid and nonassessable Units (and/or shares of
Common Stock and other securities, as the case may be) in
accordance with applicable law.

 


 




 

15








 






 


 

 


(d)           The
Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and
governmental charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Units (or
shares of Company Stock of the Company or other securities or
property, as the case may be) upon the exercise of Rights. The
Company shall not, however, be required to pay any tax or charge
which may be payable in respect of any transfer or delivery of
Right Certificates to a Person other than, or the issuance or
delivery of certificates for Units (or shares of Common Stock of
the Company or other securities or property, as the case may be)
upon exercise of Rights in a name other than that of, the
registered holder of the Right Certificate, and the Company and the
Rights Agent shall not be required to issue or deliver a Right
Certificate or certificate for Units (and/or shares of Common Stock
of the Company or other securities or property, as the case may be)
to a Person other than the registered holder until any such tax or
charge shall have been paid (any such tax or charge being payable
by the holder of such Right Certificate at the time of surrender)
or until it has been established to the Company’s and the
Rights Agent’s satisfaction that no such tax or charge is
due.

 


Section
10.                                Securities
Issuable Upon Exercise. Each Person in whose name any
certificate for Units (or shares of Common Stock of the Company or
other securities, as the case may be) is issued upon the exercise
of Rights shall for all purposes be deemed to have become the
holder of record of the Units (or shares of Common Stock or other
securities, as the case may be) represented thereby on, and the
certificate shall be dated, the date upon which the Right
Certificate evidencing these Rights was duly surrendered and
payment of the Purchase Price, or the applicable portion thereof
(and any applicable taxes and governmental charges), was
made; provided, however, that if the date of such presentation
and payment is a date upon which the transfer books for the Units
(or shares of Common Stock of the Company or other securities, as
the case may be) are closed, such Person shall be deemed to have
become the record holder of such Units (or shares of Common Stock
of the Company or other securities) on, and such certificate shall
be dated, the next succeeding Business Day on which the transfer
books for the Units (or shares of Common Stock of the Company or
other securities) are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Right Certificate, as such,
shall not be entitled to any rights of a stockholder of the Company
with respect to shares for which the Right shall be exercisable,
including without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided
herein.

 


Section
11.                                Adjustments
to Number and Kind of Securities or Other Property, Number of
Rights or Purchase Price.

 


The number and kind of
securities or other property subject to purchase upon the exercise
of each Right, the number of Rights outstanding and the Purchase
Price are subject to adjustment from time to time as provided in
this 
Section 11.

 


 




 

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(a)           (i)           In
the event that the Company shall at any time after the date of this
Agreement (A)
declare or pay any dividend on the shares of Preferred Stock
payable in shares of Preferred Stock, (B) subdivide or split the outstanding
shares of Preferred Stock into a greater number of shares,
(C) combine or consolidate
the outstanding shares of Preferred Stock into a smaller number of
shares or effect a reverse split of the outstanding shares of
Preferred Stock or (D) issue any shares of its capital
stock in a reclassification of the shares of Preferred Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), then except as otherwise provided in
this Section
11(a) and
Section
7(e), the Purchase
Price in effect at the time of the record date for the dividend or
of the effective date of the subdivision, split, combination,
consolidation or reclassification, and the number of Units and the
number and kind of other securities, as the case may be, issuable
on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price then in effect, the
aggregate number of Units and/or the number and kind of other
securities as the case may be, which, if the Right had been
exercised immediately prior to such date, whether or not such Right
was then exercisable, and at a time when the transfer books for the
Preferred Stock (or other capital stock, as the case may be) of the
Company were open, such holder would have owned upon such exercise
and been entitled to receive by virtue of the dividend,
subdivision, split, combination consolidation or reclassification.
If an event occurs which would require an adjustment under
both Section
11(a)(i)
and Section
11(a)(ii),
the adjustment provided for in this Section
11(a)
shall be in addition to,
and shall be made prior to, any adjustment required pursuant
to Section
11(ii).

 


(ii)           In
the event any Person at any time becomes an Acquiring Person (this
event being referred to as a “Section
11(a)(ii) Event”), then, subject to
Section
22(a) and
Section
23, and except as
otherwise provided in Section
7(e), each holder of
a Right shall, for a period of sixty days (or such longer period as
may be established by the Board) after the later of the occurrence
of any such event and the effective date of an appropriate
registration statement under the Securities Act pursuant to
Section
9, have a right to
receive for each Right, upon exercise thereof in accordance with
the terms of this Agreement and payment of the Purchase Price (or
the applicable portion thereof) such number of shares of Common
Stock of the Company as shall equal the result obtained by
(x) multiplying the then
current Purchase Price by the then number of Units for which a
Right was exercisable immediately prior to the first occurrence of
a Section
11(a)(ii) Event
(whether or not such right was then exercisable), and
(y) dividing that product
by 50% of the Current Market Price per share of Common Stock of the
Company on the date of such first occurrence (such number of shares
of Common Stock is called the “Adjustment Shares”); provided, however, that the Purchase Price and the
number of Adjustment Shares shall be further adjusted as
appropriate to reflect any stock split, reverse stock split, stock
dividend, reclassification or similar transaction effected by the
Company, or as provided in this Agreement to reflect any other
events, occurring after the date of such first occurrence;
and provided, further, that in connection with any exercise
effected pursuant to this Section
11(a)(ii), the Board
may (but shall not be required to) determine that a holder of
Rights shall not be entitled to receive shares of Common Stock of
the Company that would result in such holder, together with such
holder’s Affiliates, becoming the Beneficial Owner of 4.99%
or more of the total number of shares of Common Stock of the
Company then outstanding. If a holder would, but for the previous
clause, be entitled to receive a number of shares of Common Stock
of the Company (such shares, the “Excess Flip-In
Shares”), in
lieu of receiving such Excess Flip-In Shares, such holder will be
entitled to receive an amount in (1) cash, (2) debt securities of the
Company, (3) other
assets, or (4) any
combination of the foregoing, having an aggregate value equal to
the Current Market Price per share of Common Stock of the Company
on the date of the occurrence of a Section
11(a)(ii) Event
multiplied by the number of Excess Flip-In Shares that would
otherwise have been issuable to such holder.

 


 




 

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(iii)           In
the event that the number of shares of Common Stock of the Company
which are authorized by the Company’s Restated Certificate of
Incorporation but not outstanding and which are not reserved for
issuance for purposes other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights for shares
of Common Stock of the Company in accordance with
Section
11(a)(ii) and the
Rights shall become so exercisable, to the extent permitted by
applicable laws, each Right shall thereafter represent the right to
receive, upon exercise thereof at the Purchase Price,
(x) a number of shares of
Common Stock of the Company (up to the maximum number of shares of
Common Stock of the Company which may be permissibly issued),
and (y) a number
Units so that, when added together, the numbers in clauses (x)
and (y) equal the
number of Adjustment Shares. In the event the number of shares of
Common Stock and Preferred Stock which are authorized by the
Company’s Restated Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights is insufficient to permit the exercise in
full of the Rights in accordance with the prior sentence and the
Rights shall become so exercisable, to the extent permitted by
applicable law, the Company shall: (A) determine the value of the
Adjustment Shares issuable upon the exercise of a Right (the
“Current
Value”) and
that value shall be conclusive for all purposes; and
(B) with respect to each
Right, upon exercise of such Right, issue shares of Common Stock of
the Company and Units to the extent available for the exercise in
full of such Right and, to the extent shares of Common Stock or
Units are not so available, make adequate provision to substitute
for the Adjustment Shares not received upon exercise of such
Right: (1) other
equity securities of the Company (including, without limitation,
shares, or units of shares, of preferred stock which, by virtue of
having dividend, voting and liquidation rights substantially
comparable to the shares of Common Stock of the Company, are deemed
in good faith by the Board to have substantially the same value as
one share of Common Stock of the Company (such shares are herein
called “Share
Equivalents”)
and whose determination shall be conclusive for all
purposes); (2) debt
securities of the Company; (3) other assets; (4) cash; or (5) any combination of the foregoing as
determined by the Board, having a value which, when added to the
value of the number of the shares of Common Stock of the Company
and Units actually issued upon exercise of such Right, shall have
an aggregate value equal to the Current Value, where such aggregate
value has been determined by the Board based upon the advice of a
nationally recognized independent investment banking firm selected
by the Board; provided, however, if the Company shall not have made
adequate provision to deliver shares of Common Stock, Units and
Share Equivalents pursuant to Section
11(a)(ii), the prior
sentence of this paragraph and clause (B) above within 50 days
following the Stock Acquisition Date, then, to the extent permitted
by applicable law, the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without requiring payment
of the Purchase Price, shares of Common Stock (to the extent
available), Units or Share Equivalents and then, if necessary,
cash, debt securities, or other assets (in that order) which
shares, units, cash, debt securities and/or other assets have an
aggregate value equal to the excess of the Current Value over the
Purchase Price, and provided, further, that the Board may (but
shall not be required to) determine that a holder of Rights shall
not be entitled to receive equity securities under this
Section
11(a)(iii) to the
extent the Company determines the receipt thereof could limit the
Company’s ability to utilize the Tax Benefits. If the Board
shall determine in good faith that it is likely that sufficient
additional shares of Common Stock, Units or Share Equivalents could
be authorized for issuance upon exercise in full of the Rights, the
50 day period set forth above may be extended to the extent
necessary, but not more than 120 days after the Stock Acquisition
Date, in order that the Company may seek stockholder approval for
the authorization of such additional shares or Shares Equivalents
(such 50 day period, as it may be extended, is called the
“Substitution
Period”), To
the extent that the Company determines that some action need be
taken pursuant to the foregoing provisions of this
Section
11(a)(iii), the
Company (x) shall
provide, subject to Section
7(e), that this
action shall apply uniformly to all outstanding and exercisable
Rights, and (y) may
suspend the exercisability of the Rights until the expiration of
the Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of
distribution to be made pursuant to the foregoing provisions of
this Section
11(a)(iii) and, if
necessary, to determine the value thereof In the event of any such
suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement (with a prompt written
notice thereof to the Rights Agent) at such time as the suspension
is no longer in effect. For purposes of this Section
11(a)(iii), the
value of each Unit, each share of Common Stock of the Company and
the per share or unit value of any Share Equivalent shall be deemed
to equal the Current Market Price of a share of Common Stock of the
Company thereof as of the Stock Acquisition
Date.

 


(b)           In
case the Company shall fix a record date for the issuance of rights
(other than the Rights), options or warrants to all holders of
shares of Preferred Stock entitling them to subscribe for or
purchase (for a period expiring within 45 calendar days after this
record date) shares of Preferred Stock and/or securities having the
same rights, privileges and preferences as the Preferred Stock
(“Equivalent
Preferred Securities”) or securities convertible into
Preferred Stock or Equivalent Preferred Securities at a price per
share of Preferred Stock or per unit of Equivalent Preferred
Securities (or having a conversion price per share or unit, if a
security convertible into Preferred Stock or Equivalent Preferred
Securities) less than the Current Market Price per share of
Preferred Stock on the record date, the Purchase Price to be in
effect after the record date shall be determined by multiplying the
Purchase Price in effect immediately prior to the record date by a
fraction, the numerator of which shall be the number of shares of
Preferred Stock outstanding on such record date, plus the number of
shares of Preferred Stock which the aggregate offering price of the
total number of shares of Preferred Stock and/or units of
Equivalent Preferred Securities (and/or the aggregate initial
conversion price of the convertible securities so to be offered)
would purchase at that Current Market Price, and the denominator of
which shall be the number of shares of Preferred Stock outstanding
on such record date, plus the number of additional shares of
Preferred Stock and/or units of Equivalent Preferred Securities to
be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible).
In case the subscription price may be paid by delivery of
consideration part or all of which may be in a form other than
cash, the value of the non-cash consideration shall be as
determined in good faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent. Shares of
Preferred Stock and units of Equivalent Preferred Securities owned
by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. This
adjustment shall be made successively whenever such a record date
is fixed, and in the event that such rights, options or warrants
are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if the record date had
not been fixed.

 


 




 

18








 






 


 

 


(c)           In
case the Company shall fix a record date for a distribution to all
holders of shares of Preferred Stock (including any such
distribution made in connection with a consolidation, merger or
share exchange in which the Company is the continuing corporation)
of evidences of indebtedness, cash (other than a regular periodic
cash dividend), assets (other than a dividend payable in shares of
Preferred Stock, but including any dividend payable in stock other
than Preferred Stock) or subscription rights or warrants (excluding
those referred to in Section
11(b)), the Purchase Price to be in effect
after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to the record date by a
fraction, the numerator of which shall be the Current Market Price
per share of Preferred Stock on the record date, less the fair
market value (as determined in good faith by the Board, whose
determination shall be described in a statement filed with the
Rights Agent) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights or
warrants applicable to a share of Preferred Stock and the
denominator of which shall be such Current Market Price per share
of Preferred Stock; provided, however, that in no event shall the
consideration to be paid upon exercise of one Right be less than
the aggregate par value of the shares of capital stock of the
Company issuable upon the exercise of one Right. These adjustments
shall be made successively whenever such a record date is fixed;
and in the event that the distribution is not so made, the Purchase
Price shall be adjusted to be the Purchase Price which would have
been in effect if such record date had not been
fixed.

 


(d)           (i)           For
the purpose of any computation hereunder, other than computations
made pursuant to Section
11(a)(iii), and
subject to Section
11(d)(ii),
the “Current
Market Price”
per share of stock or unit of other securities on any date shall be
deemed to be the average of the daily closing prices per share of
such stock or unit of other securities for the 30 consecutive Trading Days (as such
term is hereinafter defined) immediately prior to such date;
provided,
however, that in the event that the Current
Market Price per share of any stock or unit of other securities is
determined during a period following the announcement by the issuer
of that stock or other security of (i) any dividend or distribution on
such stock or other securities (other than a regular quarterly cash
dividend and other than the Rights), or (ii) any subdivision,
split, combination or reclassification of that stock or other
securities, and prior to the expiration of the requisite
30 Trading Day period, the
ex-dividend date for the dividend or distribution, or the record
date for the subdivision, combination or reclassification occurs,
then, and in each such case, the Current Market Price shall be
properly adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on that day, the average
of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system
with respect to shares of stock or units of securities listed or
admitted to trading on the NYSE or NASDAQ or, if the shares of
stock or units of any other securities are not listed or admitted
to trading on the NYSE or NASDAQ, as reported in the principal
consolidated transaction reporting system with respect to shares of
stock or units of other securities listed on the principal national
securities exchange on which the shares of stock or units of other
securities are listed or admitted to trading or, if the shares of
stock or units of other security are not listed or admitted to
trading on any national securities exchange, the last quoted sale
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the OTC
Bulletin Board or any other system then in use, or, if on any such
date the shares of such stock or units of such other security are
not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making
a market in such stock or other securities selected by the
Board; provided, that if such security is not listed
or quoted on the NYSE or NASDAQ and the principal market for such
securities is a non-U.S. securities exchange, then the closing
price foreach day shall be determined by using the customary
convention for determining the closing price of a security on such
exchange as determined by the Board (in which event the exchange
rate of the relevant currency into U.S. dollars for each Trading
Day (as defined below) shall be determined by the Board). The term
“Trading
Day” shall
mean a day on which the principal national securities exchange on
which the shares of such stock or units of other securities are
listed or admitted to trading is open for the transaction of
business or, if the shares of such stock or other units of such
security are not listed or admitted to trading on any national
securities exchange, a Business Day; provided, that if such
security is not listed or quoted on the NYSE or NASDAQ and the
principal market for such security is a non-U.S. securities
exchange, then “Trading Day” shall mean a day on which
such non-U.S. securities exchange is open for the transaction of
business. Subject to Section
11(d)(ii) with
respect to Units, if such stock or unit of other securities is not
publicly held or not so listed, traded or quoted,
“Current
Market Price”
per share or other unit of such securities shall mean the fair
value per share of stock or other unit of such securities as
determined in good faith by the Board whose determination shall be
described in a statement filed with the Rights Agent and shall be
conclusive for all purposes.

 


 




 

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(ii)           For
the purpose of any computation hereunder, the
“Current
Market Price”
per Unit shall be determined in the same manner as set forth above
in paragraph (i) of
this Section
11(d) (other than
the last sentence thereof). If the Current Market Price per Unit
cannot be determined in the manner provided above because the Units
are not publicly held, listed or traded or quoted in a manner
described in paragraph (i) of this Section
11(d), the
“Current
Market Price”
per Unit shall be conclusively deemed to be an amount equal to the
Current Market Price per share of the Common Stock of the Company.
If neither the shares of Common Stock of the Company nor the Units
are listed or traded or quoted as described in Section
11(d)(i),
“Current
Market Price”
per share thereof shall mean the fair value per share of Common
Stock of the Company as determined in good faith by the Board,
whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all
purposes.

 


(e)           Anything
herein to the contrary notwithstanding, no adjustment in the
Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one percent in the
Purchase Price; provided, however, that any adjustments which by reason
of this Section
11(e)
are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section
11 shall be made to
the nearest cent or to the nearest thousandth of a Unit or share of
Common Stock or any other security, as the case may be.
Notwithstanding the first sentence of this Section
11(e), any
adjustment required by this Section
11 shall be made no
later than the earlier of (i) three years from the date of the
transaction which mandates such adjustment, or (ii) the Final
Expiration Date.

 


(f)            If
as a result of an adjustment made pursuant to Section
11(a)(ii), the
holder of any Right thereafter exercised shall become entitled to
receive any securities other than Units, thereafter the number of
the other securities so receivable upon exercise of any Right and
the Purchase Price thereof shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of
Preferred Stock and/or Units contained in Section
11(a),
(b),
(c),
(d), (e),
(g),
(h),
(i),
(j),
(k),
(l)
and (m),
and the provisions of Section
7,
9,
10
and Section
13 with respect to
the shares of Preferred Stock and/or Units shall apply on like
terms to any such other shares.

 


(g)           All
Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of
Units (and/or other securities) purchasable from time to time
hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.

 


 




 

20








 






 


 

 


(h)           Unless
the Company shall have exercised its election as provided in
Section
11(i),
upon each adjustment of the Purchase Price as a result of the
calculations made in Section
11(b)
and (c),
each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of Units (calculated to the
nearest one-thousandth) equal to the quotient obtained by
(i) multiplying
(x) the number of Units
covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price,
and (ii) dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase
Price.

 


(i)           The
Company may elect on or after the date of any adjustment of the
Purchase Price or any adjustment to the number of Units for which a
Right may be exercised, to adjust the number of Rights, in lieu of
any adjustment in the number of Units purchasable upon the exercise
of a Right. Each of the Rights outstanding after the adjustment in
the number of Rights shall be exercisable for the number of Units
for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of
the number of Rights shall become that number of Rights (calculated
to the nearest one thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after adjustment
of the Purchase Price. The Company shall make a public announcement
(with prompt written notice thereof to the Rights Agent) of its
election to adjust the number of Rights, indicating the record date
for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any date thereafter, but, if the
Right Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number
of Rights pursuant to this Section
11(i), the Company
shall, as promptly as practicable, cause to be distributed to the
registered holders of Right Certificates on the record date Right
Certificates evidencing, subject to Section
13, the additional
Rights to which the holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such registered holders in substitution and
replacement for the Right Certificates held by such holders prior
to the date of adjustment, and upon surrender thereof, if required
by the Company, new Right Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Right
Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may bear, at
the option of the Company, the adjusted Purchase Price) and shall
be registered in the names of the registered holders of Right
Certificates on the record date specified in the public
announcement.

 


(j)           Irrespective
of any adjustment or change in the Purchase Price or the number of
Units issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to
express the Purchase Price per Unit and the number of Units which
were expressed in the initial Right Certificates issued
hereunder.

 


 




 

21








 






 


 

 


(k)           Before
taking any action that would cause an adjustment reducing the
Purchase Price below the then par value, if any, attributable to
the Units, shares of Common Stock or other securities issuable upon
exercise of the Rights, the Company shall use best efforts to take
any corporate action, which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
fully paid and nonassessable Units, shares of Common Stock or other
securities at such adjusted Purchase Price.

 


(l)           In
any case in which this Section
11 shall require
that an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
(with prompt written notice thereof to the Rights Agent) until the
occurrence of such event the issuance to the holder of any Right
exercised after such record date the Units and/or other securities
of the Company, if any, issuable upon such exercise over and above
the Units and/or other securities of the Company, if any, issuable
upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing
such holder’s right to receive the additional Units and/or
other securities upon the occurrence of the event requiring such
adjustment.

 


(m)        
Anything in this
Section
11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments
expressly required by this Section
11, as and to the
extent that in its good faith judgment the Board shall determine to
be advisable in order that any (i) consolidation or subdivision of the
Preferred Stock or Common Stock, (ii) issuance wholly for cash of
any shares of Preferred Stock or Common Stock at less than the
Current Market Price, (iii) issuance wholly for cash or shares of
Common Stock, Preferred Stock or securities which by their terms
are convertible into or exchangeable for shares of Preferred Stock
or Common Stock, (iv) stock dividends or (v) issuance of rights, options or
warrants referred to in this Section
11, hereafter made
by the Company to holders of its Common Stock or Preferred Stock,
shall not be taxable to such stockholders.

 


(n)           The
Company covenants and agrees that, after the Distribution Date, it
will not, except as permitted by Section
22,
Section
23 or
Section
26, take (or permit
any Subsidiary to take) any action if at the time such action is
taken it is reasonably foreseeable that such action will diminish
substantially or eliminate the benefits intended to be afforded by
the Rights.

 


(o)           Anything
in this Agreement to the contrary notwithstanding, in the event
that at any time after the date of this Agreement and prior to the
Distribution Date, the Company shall (i) declare or pay any dividend on the
shares of Common Stock of the Company payable in shares of Common
Stock of the Company or (ii) effect a subdivision or split the
outstanding shares of Common Stock of the Company into a greater
number of shares of Common Stock of the Company or (iii) combine or
consolidate the outstanding shares of Common Stock of the Company
into a small number of shares or effect a reverse split of the
outstanding shares of Common Stock of the Company, then in any such
case, each share of Common Stock outstanding following payment of
such dividend, such subdivision, split, combination, consolidation
or issuance shall continue to have one Right (as adjusted as
otherwise provided herein) associated therewith and the Purchase
Price following any such event shall be proportionately adjusted to
equal the result obtained by multiplying the Purchase Price
immediately prior to such event by a fraction, the numerator of
which shall be the total number of shares of Common Stock of the
Company outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the total number of
shares of Common Stock of the Company outstanding immediately
following the occurrence of such event. The adjustment provided for
in the preceding sentence shall be made successively whenever such
a dividend is declared or paid or such a subdivision, combination
or consolidation is effected.

 


 




 

22








 






 


 

 


Section
12.                                Certification
of Adjustments. Whenever an adjustment is made as
provided in Section
11, the Company
shall (a) promptly
prepare a certificate setting forth the adjustment and a reasonably
detailed statement of facts and computations accounting for such
adjustment, (b)
promptly file with the Rights Agent and with each transfer agent
for the shares of Common Stock and Preferred Stock a copy of the
certificate, and (c)
if a Distribution Date has occurred, mail or cause the Rights Agent
to mail a brief summary thereof to each registered holder of a
Right Certificate (or, if prior to the Distribution Date, to each
holder of record of shares of Common Stock) in accordance
with Section
25. Notwithstanding
the foregoing sentence, the failure of the Company to prepare such
certificate or statement or make such filings or mailings shall not
affect the validity of, or the force or effect of, the requirement
for such adjustment. The Rights Agent shall be fully protected in
relying on such certificate, shall have no duty or liability with
respect to any adjustment therein contained, and shall not be
deemed to have knowledge of any adjustment or events related
thereto unless and until it shall have received such certificate.
Subject to the preceding sentence, any adjustment to be made
pursuant to Section
11 shall be
effective as of the date of the event giving rise to the
adjustment.

 


Section
13.                                Fractional
Rights and Fractional Shares.

 


(a)           The
Company shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights.
Units may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by it, provided that the agreement shall provide that
the holders of the depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as beneficial
owners of the Units represented by the depositary receipts. In lieu
of such fractional Rights, the Company shall pay to the holders of
record of the Right Certificates with regard to which the
fractional Rights would otherwise be issuable an amount in cash
equal to the same fraction of the then Current Market Value of a
whole Right.

 


(b)           The
Company shall not be required to issue fractions of Units or other
securities upon exercise of the Rights or to distribute
certificates which evidence fractional Units or other securities.
In lieu of issuing fractions of Units or other securities, the
Company shall pay to the registered holders of Right Certificates
at the time the Right Certificates are exercised as herein provided
an amount in cash equal to the same fraction of the then Current
Market Value of a Unit or other securities, as the case may
be.

 


(c)           The
holder of a Right by the acceptance of a Right expressly waives his
right to receive any fractional Right or fractional Unit or other
fractional securities (other than the fractional shares of
Preferred Stock represented by Units) upon exercise of a
Right.

 


 




 

23








 






 


 

 


(d)           Whenever
a payment for fractional Rights or fractional shares is to be made
by the Rights Agent under this Agreement, the Company shall
(i) promptly prepare and
deliver to the Rights Agent a certificate setting forth in
reasonable detail the facts related to such payments and the prices
and formulas utilized in calculating such payments; and (ii)
provide sufficient funds to the Rights Agent in the form of fully
collected funds to make such payments. The Rights Agent shall be
fully protected in relying upon such a certificate and has no duty
with respect to, and will not be deemed to have knowledge of, any
payment for fractional Rights or fractional shares under any
Section of this Agreement relating to the payment of fractional
Rights or fractional shares unless and until the Rights Agent has
received such a certificate and sufficient
monies.

 


Section
14.                                Rights
of Action. All rights of action in respect of
this Agreement, except those rights of action vested in the Rights
Agent pursuant to Section
17 and
Section
19, are vested in
the respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the holders of record of the Common
Stock); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, the shares of Common Stock),
without the consent of the Rights Agent or of the holder of any
other Right Certificate (or, prior to the Distribution Date, any
shares of Common Stock), may, in its own behalf and for its own
benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company or any other Person to enforce,
or otherwise act in respect of, its right to exercise the Rights
evidenced by the Right Certificate in the manner provided in the
Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Agreement and,
accordingly, that they will be entitled to specific performance of
the obligations under, and injunctive relief against actual or
threatened violations of, the obligations of any Person subject to
this Agreement.

 


Section
15.                                Agreement
of Right Holders.
Every holder of a Right by accepting the same consents and agrees
with the Company and the Rights Agent and with every other holder
of a Right that:

 


(a)           prior
to the Distribution Date, the Rights will not be evidenced by a
Right Certificate and will be transferable only in connection with
the transfer of Common Stock of the Company;

 


(b)           from
and after the Distribution Date, the Right Certificates will be
transferable only on the registry books of the Rights Agent if
surrendered at the office of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates contained
therein properly completed and duly executed;

 


(c)           
subject to
Section
6 and
Section
7(e), the Company
and the Rights Agent may deem and treat the Person in whose name
the Right Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate or, with respect to shares of
Common Stock not represented by a certificate the associated
notation on the Company’s share register) is registered as
the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right
Certificate or the associated Common Stock certificate, if any,
made by anyone other than the Company or the Rights Agent or the
transfer agent of the shares of Common Stock) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary; and

 


 




 

24








 






 


 

 


(d)           notwithstanding
anything in this Agreement to the contrary, neither the Company,
its directors, officers, employees and agents nor the Rights Agent
shall have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or permanent
injunction or other order, decree, judgment or ruling (whether
interlocutory or final) issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or
commission, or by reason of any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority, regulatory or administrative agency or commission,
prohibiting or otherwise restraining performance of such
obligation.

 


Section
16.                                Right
Certificate Holder Not Deemed a
Stockholder. No holder of a Right, as such, shall
be entitled to vote, receive dividends in respect of or be deemed
for any purpose to be the holder of shares of Common Stock,
Preferred Stock, Units or any other securities of the Company which
may at any time be issuable upon the exercise of the Rights, nor
shall anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section
24 hereof), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions
hereof.

 


Section
17.                                Concerning
the Rights Agent.

 


(a)           The
Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, reimbursement of its reasonable
expenses and counsel fees and disbursements and other disbursements
incurred in the preparation, delivery, amendment, administration
and execution of this Agreement and the exercise and performance of
its duties hereunder.

 


(b)           The
Company also agrees to indemnify the Rights Agent for, and to hold
it harmless against, any loss, damage, liability, demand, judgment,
fine, penalty, claim, settlement, cost or expense incurred without
gross negligence, bad faith or willful misconduct on the part of
the Rights Agent as each must be determined by final non-appealable
judgment of a court of competent jurisdiction, for any action
taken, suffered or omitted by the Rights Agent in connection with
the acceptance of, administration of and performance of its duties
under this Agreement, including reasonable attorneys’ fees
and expenses and the costs and expenses of defending against any
claim of liability in the premises.

 


(c)           The
Rights Agent shall be authorized and protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by in connection with its administration and performance of
this Agreement in reliance upon any Right Certificate, certificate
for shares of Common or Preferred Stock, Units or other securities
of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement or other paper or document
reasonably believed by it to be genuine and to be signed, executed
and, where expressly required hereunder, guaranteed, verified or
acknowledged, by the proper person or persons, or otherwise upon
the advice of counsel as set forth herein. The Rights Agent shall
not be deemed to have knowledge of any event of which it was
supposed to receive notice thereof hereunder, and the Rights Agent
shall be fully protected and shall incur no liability for failing
to take any action in connection therewith, unless and until it has
received such notice.

 


 




 

25








 






 


 

 


The provisions of
this 
Section 17 and 
Section 19 shall survive the
termination or expiration of this Agreement, the exercise or
expiration of the Rights and the resignation, replacement or
removal of the Rights Agent. The costs and expenses incurred in
enforcing this right of indemnification shall be paid by the
Company. Anything to the contrary notwithstanding, in no event
shall the Rights Agent be liable for special, punitive, indirect,
consequential or incidental loss or damage of any kind whatsoever
(including but not limited to lost profits, even if the Rights
Agent has been advised of the likelihood of such loss or damage.
Any liability of the Rights Agent under this Agreement (other than
by reason of gross negligence, bad faith or willful misconduct, in
each case as determined by a non-appealable judgment of a court of
competent jurisdiction) will be limited to the amount of fees paid
by the Company to the Rights Agent during the twelve (12) months
immediately preceding the event for which recovery from the Rights
Agent is being sought.

 


Section
18.                                Merger
or Consolidation or Change of Name of Rights
Agent.

 


(a)           Any
Person into which the Rights Agent or any successor Rights Agent
may be merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any Person
succeeding to the stockholder services business of the Rights Agent
or any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto,
provided that such Person would be eligible for appointment as a
successor Rights Agent under the provisions of Section
20. In case at the
time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Right Certificates shall have
been countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.

 


(b)           In
case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver such Right
Certificates so countersigned; and in case at that time any of the
Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior
name or in its changed name; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.

 


Section
19.                                Duties
of Rights Agent.
The Rights Agent undertakes to perform only the duties and
obligations expressly imposed by this Agreement (and no implied
duties and obligations) upon the following terms and conditions, by
all of which the Company and the holders of Right Certificates, by
their acceptance thereof, shall be bound:

 


 




 

26








 






 

 




 


(a)           The
Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the advice or opinion of such counsel
shall be full and complete authorization and protection to the
Rights Agent and the Rights Agent shall incur no liability for or
in respect of, any action taken, suffered or omitted by it, subject
to Section
17(b) and in
accordance with such advice or opinion.

 


(b)         
Whenever in the performance
of its duties under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the
determination of Current Market Price) be proved or established by
the Company prior to taking, suffering or omitting to take any
action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to
be conclusively proved and established by a certificate signed by
the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the General Counsel, any Vice President of the
Company, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Company (each, an
“Appropriate
Officer”) and
delivered to the Rights Agent; and such certificate shall be
complete and full authorization and protection to the Rights Agent,
and, subject to Section
17(b) the Rights
Agent shall incur no liability for or in respect of any action
taken, suffered or omitted by it under the provisions of this
Agreement in reliance upon such certificate.

 


(c)          
The Rights Agent shall be
liable hereunder only for its own gross negligence, bad faith or
willful misconduct, as each is determined by a final non-appealable
judgment by a court of competent jurisdiction.

 


(d)          
The Rights Agent shall not
be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Right Certificates
(including in the case of uncertificated shares, by notation in the
Company’s share register reflecting ownership), except as to
the fact that it has countersigned the Rights Certificates, or be
required to verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company
only.

 


(e)          
The Rights Agent shall not
have any liability for nor be under any responsibility in respect
of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate
(except its countersignature thereon); nor shall it be liable nor
responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate;
nor shall it be liable or responsible for any adjustment required
under the provisions of Section
11 or responsible
for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced
by Right Certificates after receipt of a certificate describing any
such adjustment); nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization or
reservation of any shares of Preferred Stock or Common Stock to be
issued pursuant to this Agreement or any Right Certificate or as to
whether any shares of Preferred Stock (or other securities, as the
case may be) will, when issued, be validly authorized and issued,
fully paid and nonassessable.

 


(f)          
The Company agrees that it
will perform, execute, acknowledge and deliver or cause to be
performed, executed,  acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this
Agreement.

 


 




 

27








 






 


 

 


(g)        
The Rights Agent is hereby
authorized and directed to accept instructions with respect to the
performance of its duties  hereunder from an Appropriate
Officer, and to apply to such officers for advice or instructions
in connection with its duties, and such advice or instructions
shall be full authorization and protection to the Rights Agent and,
subject to 17(b),
the Rights Agent shall incur no liability for or in respect of any
action taken, suffered or omitted to be taken by it in accordance
with the advice or instructions of any such
officer.

 


(h)         
The Rights Agent and any
stockholder, Affiliate, director, officer or employee of the Rights
Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and
freely as though it were not the Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent and such Persons
from acting in any other capacity for the Company or for any other
Person.

 


(i)      
    If, with
respect to any Right Certificate surrendered to the Rights Agent
for exercise or transfer, the certificate contained in the form of
assignment or the form of election to purchase set forth on the
reverse thereof, as the case may be, has either not been completed
or indicates an affirmative response to clause 1 and/or 2 of such certificate, the Rights Agent
shall not take any further action with respect to such requested
exercise of transfer without first consulting with the Company and
the Rights Agent shall not be liable for its failure to act or any
delay in acting in compliance with this clause
(i).

 


(j)      
    No provision
of this Agreement shall require the Rights Agent to expend or risk
its own funds or otherwise incur any  financial liability in
the performance of any of its duties hereunder (other than internal
costs incurred by the Rights Agent in providing services to the
Company in the ordinary course of its business as Rights Agent and
for which the Rights Agent shall be compensated by the Company
pursuant to Section
17(a)) or in the
exercise of its rights or powers if it believes that repayment of
such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.

 


(k)         
The Rights Agent may
execute and exercise any of the rights or powers hereby vested in
it or perform any duty hereunder either itself or by or through its
attorneys or agents, and the Rights Agent shall not be liable,
answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the
Company, any holder of Rights or any other Person resulting from
any such act, default, neglect or misconduct, absent gross
negligence, bad faith or willful misconduct in the selection and
continued employment thereof, as each is determined by a final,
non-appealable court judgment of a court of competent
jurisdiction.

 


(l)         
The Rights Agent shall not
have any duty or responsibility in the case of the receipt of any
written demand from any holder of Rights with respect to any action
or default by the Company, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or to
make any demand upon the Company.

 


 




 

28








 






 


 

 


(m)           The
Rights Agent shall not be liable or responsible for any failure of
the Company to comply with any of its obligations relating to any
registration statement filed with the Securities and Exchange
Commission or this Agreement, including without limitation
obligations under applicable regulation or law.

 


(n)           The
Rights Agent shall not assume any obligations or relationship of
agency or trust with any of the owners or holders of the
Rights.

 


(o)           The
Rights Agent may rely on, and be fully authorized and protected in
acting or failing to act in reliance upon, (a) any guaranty of signature by an
“Eligible Guarantor Institution” that is a member or
participant in the Securities Transfer Agents Medallion Program or
other comparable “signature guarantee program” or
insurance program in addition to, or in substitution for, the
foregoing; or (b)
any law, act, regulation or any interpretation of the same even
though such law, act, or regulation may thereafter have been
altered, changed, amended or repealed.

 


Section
20.                                Change
of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under
this Agreement upon 30 days’ notice in writing mailed to the
Company and, to the extent the Right Agent is not the transfer
agent of the shares of Common Stock, to each such transfer agent by
registered or certified mail. The Company shall notify the
registered holders of any such change in Rights Agent. The Company
may remove the Rights Agent or any successor Rights Agent (with or
without cause) upon 30 days’ notice in writing, mailed to the
Rights Agent or any successor Rights Agent, as the case may be, and
to each transfer agent of the shares of Common Stock by registered
or certified mail, and to the registered holders of the Right
Certificates by mail. In the event a transfer agency relationship
in effect between the Company and the Rights Agent terminates, the
Rights Agent will be deemed to have resigned automatically and be
discharged from its duties under this Agreement as of the effective
date of such termination, and the Company shall be responsible for
sending any required notice to holders. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of acting,
the Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of 30
days after such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the registered holder of a Right Certificate
(who shall, with such notice, submit such holder’s Right
Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such
a court, shall be (a) a Person organized and doing
business under the laws of the United States or any state of the
United States so long as such Person is in good standing, is
authorized to do business in such state, is authorized under such
laws to exercise stockholder services powers, is subject to
supervision or examination by federal or state authority and has at
the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (b) an Affiliate of a Person described
in clause (a) of this sentence. After appointment, the successor
Rights Agent shall be vested with the same powers, rights, duties
and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and shall execute and
deliver, if applicable, any further assurance, conveyance, act or
deed necessary for that purpose. Not later than the effective date
of any such appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent
of the Common Stock, and mail a notice thereof in writing to the
registered holders of the Right Certificates, if any. Failure to
give any notice provided for in this Section
20, however, or any
defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.

 


 




 

29








 






 


 

 


Section
21.                                Issuance
of New Right Certificates. Notwithstanding any of the provisions
of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Right Certificates evidencing Rights
in such form as may be approved by its Board to reflect any
adjustment or change in the Purchase Price and the number or kind
or class of shares of stock or other securities or property
purchasable under the Right Certificates made in accordance with
the provisions of this Agreement. In addition, in connection with
the issuance or sale of shares of Common Stock of the Company
following the Distribution Date and prior to the earlier of the
Redemption Date and the Final Expiration Date, the Company
(a) shall, with respect to
shares of Common Stock of the Company so issued or sold pursuant to
the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of
securities hereafter issued by the Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board, issue Right Certificates
representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Right Certificate shall be
issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to
whom such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued, if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.

 


Section
22.                                Redemption.

 


(a)           The
Board may, at its option, at any time prior to the earlier
of (x) the Close of
Business on the tenth (10th) calendar day after the Stock
Acquisition Date (or, if the tenth (10th) calendar day following
the Stock Acquisition Date occurs before the Record Date, the Close
of Business on the Record Date) or (y) the Close of Business on the Final
Expiration Date, direct the Company to, and if directed, the
Company shall, redeem all but not less than all of the then
outstanding Rights at a redemption price of $0.001 per Right (the
total amount paid to any holder of Rights to be rounded up to the
nearest $0.01), as such amount may be appropriately adjusted to
reflect any stock split, reverse stock split, stock dividend,
reclassification or similar transaction effected by the Company
occurring after the date (such redemption price being hereinafter
referred to as the “Redemption Price”).

 


(b)           Immediately
upon the action of the Board directing the Company to make the
redemption of the Rights, evidence of which shall have been filed
with the Rights Agent, and without any further action and without
any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive
the Redemption Price for each Right so held. Promptly after the
action of the Board directing the Company to make such redemption
of the Rights, the Company shall give notice of such redemption to
the Rights Agent and each such holder of the then outstanding
Rights by mailing such notice to the Rights Agent and to each such
holders at such holder’s last address as it appears upon the
registry books of the Rights Agent, or, prior to the Distribution
Date, on the registry books of the transfer agent for the Common
Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made, unless such
notice is mailed together with such payment.

 


In the case of a
redemption permitted under 
Section 22(a), the Company may, at
its option, discharge all of its obligations with respect to the
Rights by (i) issuing a press
release announcing the manner of redemption of the Rights (with
prompt written notice thereof to the Rights Agent) and (ii) mailing
payment of the Redemption Price to each registered holder of the
Rights at each such holder’s last address as it appears on
the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent of
the Common Stock, and upon such action, all outstanding Right
Certificates shall be null and void without any further action by
the Company.

 


 




 

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Section
23.                                Exchange.

 


(a)           The
Board may, at its option, at any time after the later of the Stock
Acquisition Date or the Distribution Date, exchange all or part of
the then-outstanding and exercisable Rights (which shall not
include Rights that have become null and void pursuant to the
provisions of Section
11(a)(ii)) for
Common Stock of the Company at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted to reflect any stock
split, reverse stock split, stock dividend, reclassification or
similar transaction effected by the Company occurring after the
Record Date (such exchange ratio being hereinafter referred to as
the “Exchange
Ratio”); provided, however, that in connection with any exchange
effected pursuant to this Section
23, the Board may
(but shall not be required to) determine that a holder of Rights
shall not be entitled to receive shares of Common Stock that would
result in such holder, together with such holder’s
Affiliates, becoming the Beneficial Owner of 4.99% or more of the
shares of Common Stock then outstanding. If a holder would, but for
the proviso set forth in the previous sentence, be entitled to
receive a number of shares under this Section
23 that would
otherwise result in such holder, together with such holder’s
Affiliates, becoming the Beneficial Owner of 4.99% or more of the
shares of Common Stock then outstanding (such shares, the
“Excess
Exchange Shares”), in lieu of receiving such
Excess Exchange Shares, such holder will be entitled to receive an
amount in (1)
cash, (2) debt
securities of the Company, (3) other assets, or
(4) any combination of the
foregoing, having an aggregate value equal to the Current Market
Price per share of the Common Stock on the date of the Stock
Acquisition Date or Distribution Date, as applicable, multiplied by
the number of Excess Exchange Shares that would otherwise have been
issuable to such holder. Any such exchange will be effective
immediately upon the action of the Board ordering the same, unless
such action of the Board expressly provides that such exchange will
be effective at a subsequent time or upon the occurrence or
nonoccurrence of one or more specified events (in which case such
exchange will be effective in accordance with the provisions of
such action of the Board). Without limiting the foregoing, prior to
effecting an exchange pursuant to this Section
23, the Board may
enter into a Trust Agreement in such form and with such terms as
the Board shall then approve (the “Trust Agreement”). If the Board so directs, the
Company shall enter into the Trust Agreement and shall issue to the
trust created by such agreement (the “Trust”) all of the Common Stock
issuable pursuant to the exchange (or any portion thereof that has
not theretofore been issued in connection with the exchange). From
and after the time at which such shares are issued to the Trust,
all stockholders then entitled to receive shares pursuant to the
exchange shall be entitled to receive such shares (and any
dividends or distributions made thereon after the date on which
such shares are deposited in the Trust) only from the Trust and
solely upon compliance with the relevant terms and provisions of
the Trust Agreement. Any shares of Common Stock issued at the
direction of the Board in connection herewith shall be validly
issued, fully paid and nonassessable Common Stock, and the Company
shall be deemed to have received as consideration for such issuance
a benefit having a value that is at least equal to the aggregate
par value of the shares so issued.

 


(b)           Immediately
upon the action of the Board authorizing the exchange of any Rights
pursuant to Section
23(a) and without
any further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of the
holders of such Rights shall be to receive that number of shares of
Common Stock (or Units, as applicable) equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange
(with prompt written notice to the Rights Agent);
provided,
however, that the failure to give, or any
defect in, such notice shall not affect the validity of such
exchange. The Company shall promptly mail a notice of any such
exchange to all of the holders of Rights at their last addresses as
they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each notice
of exchange will state the method by which the exchange of shares
of Common Stock (or Units, as applicable) for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than Rights
which have become null and void pursuant to the provisions
of Section
7(e)) held by each
holder of Rights.

 


(c)           In
any exchange pursuant to this Section
23, the Company, at
its option, may, and to the extent there are an insufficient number
of authorized shares of Common Stock not reserved for any other
purpose to exchange all of the outstanding Rights shall, substitute
Units or Share Equivalents for some or all of the shares of Common
Stock exchangeable for Rights, at the initial rate of one Unit or
Share Equivalent for each share of Common
Stock.

 


(d)           The
Board shall not authorize any exchange transaction referred to
in Section
23(a) unless at the
time such exchange is authorized there shall be sufficient shares
of Common Stock (and/or Units or Unit Equivalents) issued but not
outstanding, or authorized but unissued, to permit the exchange of
Rights as contemplated in accordance with this Section
23.

 


 




 

31








 






 


 

 


Section
24.                                Notice
of Proposed Actions.

 


(a)           In
case the Company shall propose, at any time after the Distribution
Date, (i) to pay any
dividend to the holders of record of its shares of Preferred Stock
payable in stock of any class or to make any other distribution to
the holders of record of its shares of Preferred Stock (other than
a regular periodic cash dividend out of earnings or retained
earnings of the Company), (ii) to offer to the holders of record of
its shares of Preferred Stock options, warrants, or other rights to
subscribe for or to purchase shares of Preferred Stock (including
any security convertible into or exchangeable for shares of
Preferred Stock) or shares of stock of any class or any other
securities, options, warrants, convertible or exchangeable
securities or other rights, (iii) to effect any reclassification of
its shares of Preferred Stock or any recapitalization or
reorganization of the Company, (iv) to effect any consolidation,
combination or merger with or into, or any share exchange with, or
to effect any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer), in one or
more transactions, of 50% or more of the assets, earning power or
cash flow of the Company and its Subsidiaries (taken as a whole)
to, any other Person or Persons, or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case,
the Company shall give to the Rights Agent and, to the extent
feasible, each registered holder of a Right Certificate in
accordance with Section
25, a written notice
of such proposed action, which shall specify the record date for
the purposes of such dividend or distribution, or the date on which
such reclassification, recapitalization, reorganization,
consolidation, combination, merger, share exchange, sale or
transfer of assets, liquidation, dissolution, or winding up is to
take place and the record date for determining participation
therein by the holders of record of shares of Preferred Stock, if
any such date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii) above at least
10 days prior to the record date for determining holders of record
of the shares of Preferred Stock for purposes of such action, and
in the case of any such other action, at least 10 days prior to the
date of the taking of such proposed action or the date of
participation therein by the holders of record of the shares of
Preferred Stock, whichever shall be the earlier. The failure to
give notice required by this Section
24 or any defect
therein shall not affect the legality or validity of the action
taken by the Company or the vote upon any such
action.

 


(b)           In
case a Section
11(a)(ii) Event is
proposed, then, in any such case, the Company shall, as soon as
practicable thereafter, give to the Rights Agent and to each
registered holder of Rights, to the extent feasible, in accordance
with Section
25, notice of the
occurrence of such event or proposal of such transaction which
notice shall specify the proposed event and the consequences of the
event to holders of Rights under Section
11(a)(ii), upon
consummating such transaction, shall similarly give notice thereof
to each holder of Rights.

 


Section
25.                                Notices.
Notices or demands authorized by this Agreement to be given or made
by the Rights Agent or by the registered holder of any Right
Certificate or Right to or on behalf of the Company shall be
sufficiently given or made if in writing and when sent by first-
class mail, postage prepaid, addressed or by nationally recognized
overnight courier (until another address is filed in writing with
the Rights Agent) as follows:

 



Support.com, Inc.



900 Chesapeake Drive, 2nd Floor



Redwood City, CA 94063



Attention: General Counsel



Fax: (650) 556-1194


 



with a copy (which will not constitute notice) to:

 



Pillsbury Winthrop Shaw Pittman LLP


2550
Hanover Street


Palo
Alto, CA 94304-1115



Attention: James J. Masetti, Esq.



Fax: (650) 233-4545

 


 




 

32








 






 


 

 


Subject to the
provisions of 
Section 20, any notice or demand
authorized by this Agreement to be given or made by the Company or
by the registered holder of any Right Certificate or Right to or on
the Rights Agent shall be sufficiently given or made if in writing
and when sent by first-class mail, postage prepaid, addressed or a
nationally recognized courier service (until another address is
filed in writing with the Company) as follows:

 



Computershare Trust Company, N.A.



8742 Lucent Blvd., Suite 225



Highlands Ranch, CO 80129



Attention: Client Services

 



with a copy (which shall not constitute notice) to:

 



Computershare Trust Company, N.A.



250 Royall Street



Canton, MA 02021



Attention: General Counsel  

 



Notices or demands authorized by this Agreement to be given or made
by the Company or the Rights Agent to the registered holder of any
Right Certificate or Right shall be sufficiently given or made if
in writing and when sent by mail, postage prepaid, addressed to
such holder at the address of such holder as it appears upon the
registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the transfer agent.

 


Section
26.                                Supplements
and Amendments. Subject to extension by the Board by
amendments, prior to the Close of Business on the tenth (10th)
calendar day after the Stock Acquisition Date, the Company may in
its sole and absolute discretion and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this
Agreement (including without limitation amendments that increase or
decrease the Purchase Price or Redemption Price or accelerate or
extend the Final Expiration Date or the period in which Rights may
be redeemed), without the approval of any holders of the Rights or
shares of Common Stock. From and after the Close of Business on the
tenth (10th) calendar day after the Stock Acquisition Date, the
Company may and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any
holders of Right Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii)
to shorten or lengthen any time period hereunder, or (iv) to change
or supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable which shall not adversely
affect the interests of the holders of Right Certificates (other
than any interest an Acquiring Person or an Affiliate or Associate
of an Acquiring Person has other than as a holder of Rights). Upon
the delivery of a certificate from an Appropriate Officer of the
Company which states that the proposed supplement or amendment is
in compliance with the terms of this Section
26, the Rights Agent
shall execute such supplement or amendment. Prior to the Stock
Acquisition Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of shares of
Common Stock. Notwithstanding anything contained herein to the
contrary, the Rights Agent may, but shall not be obligated to,
enter into any supplement or amendment that affects the Rights
Agent’s own rights, duties, obligations or immunities under
this Agreement. In addition, notwithstanding anything to the
contrary in this Agreement, no supplement or amendment to this
Agreement shall be made that extends the Expiration Date. No
supplement or amendment to this Agreement shall be effective unless
duly executed by the Rights Agent.

 


 




 

33








 






 


 

 


Section
27.                                Successors.
All of the covenants and provisions of this Agreement by or for the
benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns
hereunder.

 


Section
28.                               
Benefits of this
Agreement.
Nothing in this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered holders
of the Right Certificates (and, prior to the Distribution Date, the
shares of Common Stock) any legal or equitable right, remedy or
claim under this Agreement but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the shares of Common Stock).

 


Section
29.                              
Governing
Law.
This Agreement and each Right Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state.

 


Section
30.                               
Counterparts.
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but
one and the same instrument. Delivery of an executed counterpart of
a signature page to this Agreement by facsimile or electronic mail
shall be as effective as delivery of a manually executed
counterpart of this Agreement.

 


Section
31.                                
Descriptive
Headings.
Descriptive headings of the several  sections of this 
Agreement are  inserted for  convenience only and shall
not control or affect the meaning or construction of any of the
provisions.


 


Section
32.                               
Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement
to the contrary, if any such excluded term, provision, covenant or
restriction shall materially and adversely affect the rights,
immunities, duties or obligations of the Rights Agent, the Rights
Agent shall be entitled to resign immediately upon written notice
to the Company pursuant to the requirements of Section
25 of this
Agreement; and provided, further, that notwithstanding anything in
this Agreement to the contrary, if any such term, provision,
covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board determines in its good
faith judgment that severing the invalid language from this
Agreement would adversely affect the purpose or effect of this
Agreement, the right of redemption set forth in Section
22 hereof shall be
reinstated and shall not expire until the Close of Business on the
tenth (10th) Business Day following the date of such determination
by the Board.

 


 




 

34








 






 


 

 


Section
33.                               
Determination and Actions
by the Board, etc.


 


Except with respect to the rights,
immunities, duties or obligations of the Rights Agent hereunder,
the Board shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers
specifically granted to the Board, or to the Company, or as may be
necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to
(i) interpret the
provisions of this Agreement, and (ii) make all determinations or
judgments deemed necessary or advisable for the administration of
this Agreement (including without limitation a determination to
redeem or not redeem the Rights or to amend this Agreement) or
otherwise contemplated by this Agreement. All such actions,
calculations, interpretations, judgments and determinations
(including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board in
good faith, shall (x) be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Board to any
liability to the holders of the Right Certificates. The Rights
Agent is entitled always to assume the Board acted in good faith
and shall be fully protected and incur no liability in reliance
thereon.

 


Section
34.                                Force
Majeure

 



.. Notwithstanding anything to the contrary contained herein, the
Rights Agent shall not be liable for any delays or failures in
performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts,
shortage of supply, breakdowns or malfunctions, interruptions or
malfunction of computer facilities, or loss of data due to power
failures or mechanical difficulties with information storage or
retrieval systems, labor difficulties, war, or civil
unrest.

 


Section
35.                                Further
Assurance

 



.. The Company shall perform, acknowledge and deliver or cause to be
performed, acknowledged and delivered all such further and other
acts, documents, instruments and assurances as may be reasonably
required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Agreement.

 



[signature page follows]




 

35








 






 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above
written.


 


	
 

	


SUPPORT.COM, INC.


 


 


 



By:       /s/ Richard
Bloom                              





Name:  Richard Bloom



Title:    President and Chief Executive
Officer


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	


COMPUTERSHARE TRUST COMPANY,



N.A., AS RIGHTS AGENT


 


 


 



By:             
                 
                 
             
 




Name:



Title:


 







 


 


[Signature
Page to Section 382 Tax Benefits Preservation Plan]

 


 

 


 




 

36








 






 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above
written.


 


	
 

	


SUPPORT.COM, INC.


 


 


 



By:      
_________________________________   




Name:   Richard Bloom



Title:     President and Chief Executive
Officer


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	


COMPUTERSHARE TRUST COMPANY,



N.A., AS RIGHTS AGENT


 


 


 



By:       /s/ Patrick
Hayes                                        





Name:  Patrick Hayes



Title:    Vice President & Manager







 


 


[Signature
Page to Section 382 Tax Benefits Preservation Plan]


 


 




 

37








 







EXHIBIT A

 



AMENDED AND RESTATED



CERTIFICATE OF DESIGNATION



OF



SERIES B JUNIOR PARTICIPATING PREFERRED STOCK



OF



SUPPORT.COM, INC.

 



(Pursuant to Section 151 of the Delaware
General Corporation Law)

 



_______________________________________

 


The undersigned,
Richard Bloom, the President and Chief Executive Officer of
Support.com, Inc. (the “Corporation”),
a corporation organized and existing under the General Corporation
Law of the State of the Delaware, as amended (the
“DGCL”), does hereby certify:

 


That pursuant to the
authority granted by Article IV of the
Restated Certificate of Incorporation of the Corporation, as
amended (the “Restated Certificate
of Incorporation”), and in
accordance with Section 151 of the DGCL, the
Board of Directors of the Corporation (hereinafter being referred
to as the “Board of
Directors” or the
“Board”),
at a meeting duly called and held on April 20, 2016, adopted
resolutions authorizing the creation and issuance of a series of
preferred stock designated as the “Series B Junior
Participating Preferred Stock,” none of which shares have
been issued;

 


That the Certificate of
Designation for the Series B Junior Participating Preferred Stock
(the “Certificate
of Designation”) was filed with
the Secretary of State for the State of Delaware and became
effective on April 21, 2016.

 


That pursuant to the
authority granted by the Restated Certificate of
Incorporation, and in accordance
with Section 151 of the DGCL, the Board of Directors, at a meeting
duly called and held on August 21, 2019, adopted the following
resolutions amending and restating the Certificate of
Designation:

 



RESOLVED, that pursuant to the authority granted to and vested in
the Board of Directors in accordance with the provisions of the
Restated Certificate of Incorporation, the Certificate of
Designation for the Series B Junior Participating Preferred Stock
shall be amended and restated in its entirely, and the designation
and number of shares constituting such series, and the rights,
powers, preferences, privileges and restrictions relating to such
series, in addition to any set forth in the Restated Certificate of
Incorporation, shall be as follows:

 


 




 

A-1








 






 


 

 


1.           Designation
and Amount. The shares of such
series shall be designated as “Series B Junior
Participating Preferred Stock” (the
“Series
B Preferred Stock”) and the number
of shares constituting the Series B Preferred Stock shall be
150,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors prior to issuance; provided,
that no decrease shall reduce the number of shares of the Series B
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into the Series B Preferred Stock; provided, further,
that if more than a total of 150,000 shares of Series B Preferred
Stock shall be issuable upon the exercise of Rights (the
“Rights”) issued pursuant to the Tax Benefits
Preservation Plan, dated as of August 21, 2019, by and between the
Corporation and Computershare Trust Company, N.A., as Rights Agent,
the Board of Directors of the Corporation, pursuant to
Section 151(g) of the
DGCL, shall direct by resolution or resolutions that a certificate
be properly executed, acknowledged, filed and recorded, in
accordance with the provisions of Section 103 of the DGCL,
providing for the total number of shares of Series B Preferred
Stock authorized to be issued to be increased (to the extent that
the Certificate of Incorporation then permits) to the largest
number of whole shares (rounded up to the nearest whole number)
issuable upon exercise of such Rights.

 



2.            

Dividends and
Distributions.





 


(a)            Subject
to the rights of the holders of any shares of any series of
Preferred Stock of the Corporation (the “Preferred
Stock”) (or any
similar stock) ranking prior and superior to the shares of Series B
Preferred Stock with respect to dividends, the holders of shares of
the Series B Preferred Stock, in preference to the holders of
common stock, par value $0.0001 per share, of the Corporation (the
“Common Stock”) and of any other stock of the
Corporation ranking junior to the Series B Preferred Stock, shall
be entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally available for the
payment of dividends, quarterly dividends payable in cash on the
last day of each fiscal quarter of the Corporation in each year, or
such other dates as the Board of Directors shall approve (each such
date being referred to herein as a “Quarterly Dividend
Payment Date”), commencing on
the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of the Series B Preferred Stock
(the “Issue
Date”), in an amount
per share (rounded to the nearest cent) equal to the greater
of (i) $1.00 or (ii)
subject to the provision for adjustment hereinafter set forth, 1000
times the aggregate per share amount of all cash dividends,
and 1000 times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares
of the Common Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of
a share of Series B Preferred Stock. In the event the Corporation
shall at any time after the Issue Date (A) declare and pay any
dividend on the Common Stock payable in shares of Common Stock,
or (B) effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event under clause (ii) of the
preceding sentence shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event. In the event the
Corporation shall at any time declare or pay any dividend on the
Series B Preferred Stock payable in shares of Series B Preferred
Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Series B Preferred Stock (by reclassification
or otherwise than by payment of a dividend in shares of Series B
Preferred Stock) into a greater or lesser number of shares of
Series B Preferred Stock, then in each such case the amount to
which holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under clause (ii) of the first
sentence of this 
Section 
2(a) shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Series B Preferred Stock that were
outstanding immediately prior to such event and the denominator of
which is the number of shares of Series B Preferred Stock
outstanding immediately after such event.

 


 




 

A-2








 






 


 

 


(b)            The
Corporation shall declare a dividend or distribution on the Series
B Preferred Stock as provided in paragraph (a) of this
Section
2 immediately after it
declares a dividend or distribution on the Common Stock (other than
a dividend payable in shares of Common Stock); and the Corporation
shall pay such dividend or distribution on the Series B Preferred
Stock before the dividend or distribution declared on the Common
Stock is paid or set apart; provided
that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1.00 per share on the Series B Preferred Stock
shall nevertheless be payable, when, as and if declared, on such
subsequent Quarterly Dividend Payment Date.

 


(c)           Dividends
shall begin to accrue and be cumulative, whether or not declared,
on outstanding shares of Series B Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to
the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series B Preferred
Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series B
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares
at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of Series B
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment
thereof.

 


3.           Voting
Rights. The holders of shares
of Series B Preferred Stock shall have the following voting
rights:

 


(a)           Subject
to the provision for adjustment hereinafter set forth and except as
otherwise provided in the Restated Certificate of Incorporation or
required by law, each share of Series B Preferred Stock shall
entitle the holder thereof to 1000 votes on all matters upon which
the holders of the Common Stock of the Corporation are entitled to
vote. In the event the Corporation shall at any time after the
Issue Date (i)
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or (ii) effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
In the event the Corporation shall at any time declare or pay any
dividend on the Series B Preferred Stock payable in shares of
Series B Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series B Preferred Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Series B Preferred Stock) into a greater or lesser number
of shares of Series B Preferred Stock, then in each such case the
number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event shall
be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Series B Preferred Stock that
were outstanding immediately prior to such event and the
denominator of which is the number of shares of Series B Preferred
Stock outstanding immediately after such event.

 


 




 

A-3








 






 


 

 


(b)           Except
as otherwise provided herein, in the Restated Certificate of
Incorporation or in any other Certificate of Designations creating
a series of Preferred Stock or any similar stock, and except as
otherwise required by law, the holders of shares of Series B
Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.

 


(c)           (i)
          
If at any
time dividends on any Series B Preferred Stock shall be in arrears
in an amount equal to six quarterly dividends thereon, the holders
of the Series B Preferred Stock, voting as a separate series from
all other series of Preferred Stock and classes of capital stock,
shall be entitled to elect two members of the Board in addition to
any Directors elected by any other series, class or classes of
securities and the authorized number of Directors will
automatically be increased by two. Promptly thereafter, the Board
of the Corporation shall, as soon as may be practicable, call a
special meeting of holders of Series B Preferred Stock for the
purpose of electing such members of the Board. Such special meeting
shall in any event be held within 45 days of the occurrence of such
arrearage.

 


(ii)           During
any period when the holders of Series B Preferred Stock, voting as
a separate series, shall be entitled and shall have exercised their
right to elect two Directors, then, and during such time as such
right continues, (a) the then authorized
number of Directors shall be increased by two, and the holders of
Series B Preferred Stock, voting as a separate series, shall be
entitled to elect the additional Directors so provided for,
and (b) each such
additional Director shall serve until the next annual meeting of
stockholders for the election of Directors, or until his successor
shall be elected and shall qualify, or until his right to hold such
office terminates pursuant to the provisions of this

Section 3(c).

 


(iii)           A
Director elected pursuant to the terms hereof may be removed with
or without cause by the holders of Series B Preferred Stock
entitled to vote in an election of such
Director.

 


(iv)           If,
during any interval between annual meetings of stockholders for the
election of Directors and while the holders of Series B Preferred
Stock shall be entitled to elect two Directors, there is no such
Director in office by reason of resignation, death or removal,
then, promptly thereafter, the Board shall call a special meeting
of the holders of Series B Preferred Stock for the purpose of
filling such vacancy and such vacancy shall be filled at such
special meeting. Such special meeting shall in any event be held
within 45 days of the occurrence of such
vacancy.

 


 




 

A-4








 






 


 

 

   
           
           
           
       
(v)           At
such time as the arrearage is fully cured, and all dividends
accumulated and unpaid on any shares of Series B Preferred Stock
outstanding are paid, and, in addition thereto, at least one
regular dividend has been paid subsequent to curing such arrearage,
the term of office of any Director elected pursuant to this

Section 3(c), or his successor,
shall automatically terminate, and the authorized number of
Directors shall automatically decrease by two, the rights of the
holders of the shares of the Series B Preferred Stock to vote as
provided in this 
Section 3(c) shall cease, subject to
renewal from time to time upon the same terms and conditions, and
the holders of shares of the Series B Preferred Stock shall have
only the limited voting rights elsewhere herein set
forth.
 


(d)           Except
as set forth herein, or as otherwise provided by law, holders of
Series B Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein)
for taking any corporate action.

 



4.            

Certain
Restrictions.





 


(a)           Whenever
quarterly dividends or other dividends or distributions payable on
the Series B Preferred Stock as provided in Section 2
hereof are
in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series B
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:

 


(i)            
declare or
pay dividends, or make any other distributions, on any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;

 


(ii)           declare
or pay dividends, or make any other distributions, on any shares of
stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B Preferred
Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled;

 


(iii)         
redeem or
purchase or otherwise acquire for consideration shares of any stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock,
provided
that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series B Preferred
Stock or rights, warrants or options to acquire such junior stock;
or

 


(iv)        
redeem or
purchase or otherwise acquire for consideration any shares of
Series B Preferred Stock, or any shares of stock ranking on a
parity (either as to  dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or
classes.

 


(b)            The
Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock
of the Corporation unless the Corporation could, under
paragraph (a) of this

Section 4, purchase or otherwise
acquire such shares at such time and in such
manner.

 


5.           Reacquired
Shares. Any shares of Series
B Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued, without designation as to
series until such shares are once more designated as part of a
particular series of Preferred Stock by resolution or resolutions
of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein, in the Restated
Certificate of Incorporation, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar
stock or as otherwise required by law.

 


 




 

A-5








 






 


 

 


6.           Liquidation,
Dissolution or Winding Up.

 


(a)           Upon
any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of the Common Stock
or of shares of any other stock of the Corporation ranking junior,
either as to dividends or upon liquidation, dissolution or winding
up, to the Series B Preferred Stock unless, prior thereto, the
holders of shares of Series B Preferred Stock shall have received
$1000 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment, provided that the holders of shares of Series B
Preferred Stock shall be entitled to receive an aggregate amount
per share, subject to the provision for adjustment hereinafter set
forth, equal to 1000
times the aggregate amount to be distributed per share to holders
of shares of Common Stock, or (ii) to the holders of shares of
stock ranking on a parity either as to dividends or upon
liquidation, dissolution or winding up with the Series B Preferred
Stock, except distributions made ratably on the Series B Preferred
Stock and all such parity stock in proportion to the total amounts
to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event, however, that
there are not sufficient assets available to permit payment in full
of the Series B Preferred Stock liquidation preference and the
liquidation preferences of all other classes and series of stock of
the Corporation, if any, that rank on a parity with the Series B
Preferred Stock in respect thereof, then the assets available for
such distribution shall be distributed ratably to the holders of
the Series B Preferred Stock and the holders of such parity shares
in the proportion to their respective liquidation preferences. In
the event the Corporation shall at any time after the Issue
Date (A) declare or
pay any dividend on the Common Stock payable in shares of Common
Stock, or (B) effect
a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series B Preferred
Stock were entitled immediately prior to such event under the
proviso in clause (i) of this Section 6(a) shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event. In the event the
Corporation shall at any time declare or pay any dividend on the
Series B Preferred Stock payable in shares of Series B Preferred
Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Series B Preferred Stock (by reclassification
or otherwise than by payment of a dividend in shares of Series B
Preferred Stock) into a greater or lesser number of shares of
Series B Preferred Stock, then in each such case the aggregate
amount to which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event under the proviso in
clause (1) of
paragraph (A) of
this Section
6 shall be adjusted
by multiplying such amount by a fraction, the numerator of which is
the number of shares of Series B Preferred Stock that were
outstanding immediately prior to such event and the denominator of
which is the number of shares of Series B Preferred Stock
outstanding immediately after such event.

 


(b)           Neither
the merger, consolidation or other business combination of the
Corporation into or with another entity nor the merger,
consolidation or other business combination of any other entity
into or with the Corporation (nor the sale, lease, exchange or
conveyance of all or substantially all of the property, assets or
business of the Corporation) shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of
this Section
6.

 


7.            Consolidation
Merger, etc. Notwithstanding
anything to the contrary contained herein, in case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are converted into,
exchanged for or changed into other stock or securities, cash
and/or any other property (payable in kind), then in any such case
each share of Series B Preferred Stock shall at the same time be
similarly converted into, exchanged for or changed into an amount
per share (subject to the provision for adjustment hereinafter set
forth) equal to 1000 times the
aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is converted or exchanged. In the
event the Corporation shall at any time after the Issue Date
(i) declare
or pay any dividend on the Common Stock payable in shares of Common
Stock, or (ii) effect a subdivision or combination or consolidation
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) of the outstanding shares of Common Stock
into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with
respect to the conversion, exchange or change of shares of Series B
Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the
Corporation shall at any time declare or pay any dividend on the
Series B Preferred Stock payable in shares of Series B Preferred
Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Series B Preferred Stock (by reclassification
or otherwise than by payment of a dividend in shares of Series B
Preferred Stock) into a greater or lesser number of shares of
Series B Preferred Stock, then in each such case the amount set
forth in the first sentence of this 
Section 7 with respect to the
exchange or change of shares of Series B Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Series B Preferred Stock that were
outstanding immediately prior to such event and the denominator of
which is the number of shares of Series B Preferred Stock
outstanding immediately after such event.

 


 




 

A-6








 






 


 

 


   
8.          
No
Redemption. The shares of Series
B Preferred Stock shall not be redeemable from any
holder.

 


   
9.          
Rank.
The Series B Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, junior
to all series of any other class of the Preferred Stock issued
either before or



after the issuance of the Series B Preferred Stock, unless the
terms of any such series shall provide otherwise, and shall rank
senior to the Common Stock.

 


10.         
Amendment.
At such time as any shares of Series B Preferred Stock are
outstanding, if any proposed amendment to the  Restated
Certificate of Incorporation (including this Certificate of
Designation) would materially alter, change or repeal any of the
preferences, powers or special rights given to the Series B
Preferred Stock so as to affect the Series B Preferred Stock
adversely, then the holders of the Series B Preferred Stock shall
be entitled to vote separately as a class upon such amendment, and
the affirmative vote of two-thirds of the outstanding shares of the
Series B Preferred Stock, voting separately as a single class,
shall be necessary for the adoption thereof, in addition to such
other vote as may be required by the DGCL.

 


11.         
Fractional
Shares. Series B Preferred
Stock may be issued in fractions of a share that shall entitle the
holder, in proportion to such holder’s fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series B Preferred Stock.

 


IN WITNESS WHEREOF, the
undersigned have signed and attested this Amended and Restated
Certificate of Designation on the 21st
day of
August, 2019.

 



SUPPORT.COM, INC.

 




By:                                                        







Name: Richard Bloom



Title: President and Chief Executive Officer

 



Attest:

 


 

_________________________________





Olivia Mirzoyev, Secretary

 


 




 

A-7








 







EXHIBIT B



Form of Right Certificate

 



Certificate No. R-____  



____________ Rights

 


 

 


NOT EXERCISABLE AFTER
August 21, 2022, SUBJECT TO EARLIER REDEMPTION OR EXPIRATION
PURSUANT TO THE SECTION 382 TAX BENEFITS
PRESERVATION PLAN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $0.001 PER RIGHT ON THE TERMS SET FORTH
IN THE SECTION 382 TAX BENEFITS
PRESERVATION PLAN. THE RIGHTS EVIDENCED BY THIS CERTIFICATE SHALL
NOT BE EXERCISABLE, AND SHALL BE VOID SO LONG AS HELD BY A HOLDER
IN ANY JURISDICTION WHERE THE REQUISITE QUALIFICATION FOR THE
ISSUANCE TO SUCH HOLDER, OR THE EXERCISE BY SUCH HOLDER, OF THE
RIGHTS IN SUCH JURISDICTION SHALL NOT HAVE BEEN OBTAINED OR BE
OBTAINABLE. THE BENEFICIAL OWNER OF THE RIGHTS REPRESENTED BY THIS
RIGHT CERTIFICATE MAY BE AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE (AS DEFINED IN THE SECTION 382 TAX BENEFITS
PRESERVATION PLAN) OF AN ACQUIRING PERSON OR A SUBSEQUENT HOLDER OF
A RIGHT CERTIFICATE BENEFICIALLY OWNED BY SUCH PERSONS.
ACCORDINGLY, UNDER CERTAIN CIRCUMSTANCES AS PROVIDED IN THE
SECTION 382 TAX BENEFITS
PRESERVATION PLAN, THIS RIGHT CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY WILL BE NULL AND VOID.

 



RIGHT CERTIFICATE

 



SUPPORT.COM, INC.

 


This certifies
that                                                               ,
or registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the
Section 382 Tax Benefits
Preservation Plan, dated as of August 21, 2019, as amended,
restated, renewed or extended from time to time (the
“Plan”)
between Support.com, a Delaware corporation
(“Company”),
and Computershare Trust Company N.A., a federally chartered trust
company, as Rights Agent (“Rights
Agent”), to purchase
from the Company at any time after the Distribution Date (as such
term is defined in the Plan) and prior to 5:00 P.M., New York
City time, on August 21, 2022, at the office or offices of the
Rights Agent, or its successors as Rights Agent, designated for
such purpose, one one-thousandth of a fully paid, nonassessable
share of Series B Junior Participating Preferred Stock, par value
$0.0001 per share, of the Company (a “Unit”),
at a purchase price of $3.00, as the same may from time to time be
adjusted in accordance with the Plan (“Purchase
Price”), upon
presentation and surrender of this Right Certificate with the Form
of Election to Purchase and included Certificate duly completed and
executed. The number of Rights evidenced by this Right Certificate
(and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price set forth above,
are the number and Purchase Price as of ___________, 20___, based
on the Units as constituted at such date.

 


 




 

B-1








 






 


 

 



As provided in the Plan, the Purchase Price and the number of Units
which may be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and adjustment
upon the happening of certain events and, upon the happening of
certain events, shares of Common Stock or other securities other
than Units, or other property, may be acquired upon exercise of the
Rights evidenced by this Right Certificate, as provided by the
Plan.

 


As more fully set forth
in the Plan, from and after the first occurrence of a

Section 11(a)(ii) Event (as such term is
defined in the Plan), if the Rights evidenced by this Right
Certificate are beneficially owned by (i) an Acquiring Person
or an Associate or Affiliate of an Acquiring Person (as such terms
are defined in the Plan), (ii) a transferee of such Acquiring
Person (or of any such Associate or Affiliate), or (iii) under
certain circumstances specified in the Plan, a transferee of such
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with such Acquiring
Person becoming such, such Rights shall become null and void
without any further action, and no holder hereof shall have any
right with respect to such Rights from and after the occurrence of
such 
Section 11(a)(ii) Event, whether under
the Plan or otherwise.

 



This Right Certificate is subject to all of the terms, provisions
and conditions of the Plan, which terms, provisions and conditions
are incorporated herein by reference and made a part hereof and to
which Plan reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities
of the Rights Agent, the Company and the registered holders of the
Right Certificates. Copies of the Plan are on file at the principal
executive office of the Company and will be mailed to stockholders
upon written request to the Rights Agent.

 



This Right Certificate, with or without other Right Certificates,
upon surrender at the office or offices of the Rights Agent
designated for such purpose, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing
Rights entitling the registered holder to purchase a like aggregate
number of Units as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled the holder to
purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive, upon surrender hereof, the
Right Certificate indicating the remaining Rights represented
thereby or another Right Certificate or Right Certificates for the
number of Rights not exercised.

 


Subject to the
provisions of the Plan, the Rights evidenced by this Certificate
may be (x) redeemed by the
Company at its option at a redemption price of $0.001 per Right at
any time prior to the earlier of the Close of Business on
(i) the
tenth (10th) calendar day after the Stock Acquisition Date, and
(ii) the Final Expiration Date, or under certain other conditions
as specified in the Plan, and (y) exchanged, after
any Person becomes an Acquiring Person (as such terms are defined
in the Plan), at the option of the Board of Directors of the
Company, for one share of Common Stock of the Company as set forth
in the Plan.

 



No fractional Units, shares of Common Stock of the Company or other
securities (other than fractions of a share of Preferred Stock
represented by Units) shall be required to be issued upon the
exercise of any Right or Rights evidenced hereby, and in lieu
thereof, as provided in the Plan, a holder otherwise entitled to
fractions of shares of Common Stock, Units or other securities
(other than fractions of a share of Preferred Stock represented by
Units) may receive an amount in cash equal to the same fraction of
the then current value of a share of Common Stock or such other
securities.

 



No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Units,
shares of Preferred Stock, shares of Common Stock or of any other
securities of the Company which may at any time be issuable upon
the exercise hereof, nor shall anything contained in the Plan or
herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote
for the election of directors, or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent
to any corporate action or to receive notice of meetings or other
actions affecting stockholders (except as provided in the Plan) or
to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have
been exercised as provided in the Plan.

 



This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights
Agent.

 



[remainder of page intentionally left blank]


 




 

B-2








 







WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal, dated as of ____________ ___,
______.

 


	
 

	


SUPPORT.COM, INC.


 


 


 



By:              
                 
                 
        




Name:  
               
                 
               
  
                   



Title:    
               
                 
               
  
                  




 


 



By:        
               
                 
               
      




Name:   
               
                 
               
  
                  





Title:      
               
                 
               
  
               




	
 

	
 


	
 

	
 


	
 

	


Countersigned:


	
 

	
 


	
 

	


COMPUTERSHARE TRUST COMPANY, N.A., AS RIGHTS AGENT


 


 


 



By:       
               
                 
               
  
    




Name:   
               
                 
               
  
                   





Title:     
               
                 
               
  
                




 







 

 


 




 

B-3








 






 



Form of Reverse Side of Right Certificate

 



FORM OF ASSIGNMENT

 



(To be executed by the registered holder if such
holder



desires to transfer the Right Certificate.)

 



FOR VALUE RECEIVED ________________________ hereby sells, assigns
and transfers unto

 


 

 


 







(Please print name and address of transferee)

 


 

 






 

 


 



__________________ Rights evidenced by this Right Certificate,
together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint _______________________
Attorney, to transfer the within Right Certificate on the books of
the within-named Company, with full power of
substitution.

 


Dated:                                   
, 20___

 


 




_____________________________



Signature

  




 



(Signature must conform in all respects to



the name of holder as written upon the face



of this Right Certificate, without alteration or



enlargement or any change whatsoever.)

 



Signature Guaranteed:*

 



* Signature must be guaranteed by an “Eligible Guarantor
Institution” pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934, as
amended.


 




 

B-4








 






 



Certificate


 



The undersigned hereby certifies by checking the appropriate boxes
that:


 



(1)            


the Rights evidenced by this Right Certificate










 



[ ] are






 



[ ] are not

 



being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined in the Plan);






 



after due inquiry and to the best knowledge of the undersigned, the
undersigned


 


[ ] did


 



[ ] did not

 



acquire the Rights evidenced by this Right Certificate from any
Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or any transferee of such
Persons.

 


Dated:                                   
, 20___

 









_____________________________


Signature

  




(Signature must conform in all respects to


the name of holder as written upon the face


of this Right Certificate, without alteration or


enlargement or any change whatsoever.)

 


Signature Guaranteed:*

 



* Signature must be guaranteed by an “Eligible Guarantor
Institution” pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934, as
amended.


 




 

B-5








 






 



FORM OF ELECTION TO PURCHASE

 



(To be executed if registered holder desires to Exercise the Right
Certificate.)

 



To: SUPPORT.COM, INC.

 


The undersigned hereby
irrevocably elects to exercise                                         
Rights
represented by this Right Certificate to purchase the number of one
one-thousandths of a share of Preferred Stock, shares of Common
Stock or other securities issuable upon the exercise of such Rights
and requests that certificates representing such share(s) or other
securities be issued in the name of:






 



Please insert social security or other identifying number
________________________________

 


 


 


 







(Please print name and address)


 



If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the remaining
such Rights shall be registered in the name of and delivered
to:

 



Please insert social security or other identifying number
________________________________


 







(Please print name and address)

 


Dated:                                   
, 20___

 

 


 




_______________________________ 




Signature

  





(Signature must conform in all respects to



the name of holder as written upon the face



of the Right Certificate, without alteration or



enlargement or any change whatsoever.)

 



Signature Guaranteed:*

 


* Signature must be
guaranteed by an “Eligible Guarantor
Institution” pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934, as
amended.


 




 

B-6








 






 



Certificate


 



The undersigned hereby certifies by checking the appropriate boxes
that:


 



(1)            


the Rights evidenced by this Right Certificate










 



[ ] are






 



[ ] are not

 



being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined in the Plan);


 



(2)             


after due inquiry and to the best knowledge of the undersigned, the
undersigned





 



[ ] did

 



[ ] did not

 



acquire the Rights evidenced by this Right Certificate from any
Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or any transferee of such
Persons.

 





Dated:                                     
, 20___

 




Signature:                                                                            





 



(Signature must conform in all respects to the name



of holder as written upon the face of this Right



Certificate, without alteration or enlargement or any



change whatsoever.)

 



Signature Guaranteed:*  



 



* Signature must be guaranteed by an “Eligible Guarantor
Institution” pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934, as
amended.


 

 




 

B-7








 







EXHIBIT C

 


UNDER CERTAIN
CIRCUMSTANCES AS SET FORTH IN THE SECTION 382 TAX BENEFITS
PRESERVATION PLAN, RIGHTS THAT ARE OR WERE BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE SECTION
382 TAX
BENEFITS PRESERVATION PLAN) MAY BECOME NULL AND
VOID.

 



SUPPORT.COM, INC.

 



SUMMARY OF THE TERMS OF THE RIGHTS



TO PURCHASE UNITS OF PREFERRED STOCK

 


On August 21, 2019, the
Board of Directors (the “Board”)
of Support.com, Inc., a Delaware corporation (the
“Company”),
declared a dividend distribution of one purchase right (a
“Right”)
for each outstanding share of Common Stock, par value $0.0001 per
share (“Common
Stock”), of the
Company, payable to stockholders of record on September 3, 2019,
and issuable as of that date. Except in the circumstances described
below, each Right, when it becomes exercisable, entitles the
registered holder to purchase from the Company one one-thousandth
of a share of Series B Junior Participating Preferred Stock,
$0.0001 par value, of the Company (“Preferred
Stock” and each one
one-thousandth of a share of Preferred Stock, a
“Unit”)
at a price of $3.00 per Unit (the “Purchase
Price”). The rights of
a holder of a Unit are substantially equivalent to the rights of a
holder of a share of Common Stock. The description and terms of the
Rights are set forth in a Section 382 Tax Benefits
Preservation Plan (the “Plan”)
between the Company and Computershare Trust Company, N.A., a
federally chartered trust company, as rights agent (the
“Rights
Agent”).

 


The Company has
generated substantial operating losses (“NOLs”) in
previous years which, under the Internal Revenue Code of 1986 (the
“Code”),
the Company may in certain circumstances use to offset current and
future earnings and thus reduce its future federal income tax
liability (subject to certain requirements and restrictions).
However, if the Company experiences an “Ownership
Change,” as defined in Section 382 of the Code and the
treasury regulations promulgated thereunder
(“Section
382”), its ability
to use these NOLs could be substantially limited or lost
altogether. In order to seek to avoid an “Ownership
Change” and protect stockholder value, the Board of Directors
adopted the Plan.

 



As discussed below, initially the Rights will not be exercisable,
certificates will not be sent to stockholders and the Rights will
automatically trade with the Common Stock.

 


The Rights will be
evidenced by Common Stock certificates, and Rights relating to
shares of Common Stock not represented by certificates will be
represented by notation on the records of the Company, until the
close of business on the earlier to occur of (i) the tenth (10th)
calendar day after the day on which a public announcement or filing
that a person or group of affiliated or associated persons has
become an “Acquiring Person,” which is defined as a
person who, at any time after the date of the Plan, has acquired,
or obtained the right to acquire, beneficial ownership of 4.99% or
more of the Common Stock of the Company then outstanding, subject
to certain exceptions as described below, or (ii) the tenth (10th)
calendar day (or a later date determined by the Board of Directors
of the Company) after the commencement of a tender or exchange
offer the consummation of which would result in a person becoming
an Acquiring Person (the earlier of these dates is called the
“Distribution
Date”).

 


 




 

C-1








 






 


 

 


As soon as practicable
following a Distribution Date, the Rights Agent will, if requested
to do so by the Company, mail separate certificates evidencing the
Rights (“Right
Certificates”) to holders of
record of shares of the Common Stock as of the close of business on
the Distribution Date, and those separate certificates alone will
evidence the Rights from and after the Distribution
Date.

 


Each of the following
persons will not be deemed to be an Acquiring Person, even if they
have acquired, or obtained the right to acquire, beneficial
ownership of 4.99% or more of the shares of Common Stock of the
Company then outstanding: (i) the Company, (ii)
any Subsidiary of the Company, (iii) any employee benefit plan or
employee stock plan of the Company or any Subsidiary of the
Company, or any person organized, appointed, established or holding
shares of Common Stock of the Company for or pursuant to the terms
of any such plan; (iv) any “direct public group” within
the meaning of Treasury Regulations Section 1.382-2T(j)(2)(ii);
(v) any
person who the Board determines prior to the time the person would
otherwise be an Acquiring Person, should be exempted from being an
Acquiring Person; (vi) any person who would otherwise be an
Acquiring Person upon the first public announcement by the Company
of the adoption of the Plan, unless and until such person, or any
Affiliate of such person, acquires beneficial ownership of any
additional shares of Common Stock after the first public
announcement by the Company of the adoption of the Plan; (vii) any
person who as the result of an acquisition of shares of Common
Stock by the Company (or any Subsidiary of the Company, any
employee benefit plan or employee stock plan of the Company or any
Subsidiary of the Company, or any person organized, appointed,
established or holding shares of Common Stock of the Company for or
pursuant to the terms of any such plan) which, by reducing the
number of shares of Common Stock outstanding, increases the
proportionate number of shares of Common Stock beneficially owned
by the person to 4.99% or more of the shares of Common Stock then
outstanding, unless and until such person, or any Affiliate of such
person, following the first public announcement by the Company of
such share acquisition, acquires beneficial ownership of any
additional shares of Common Stock (other than pursuant to a stock
split, reverse stock split, stock dividend, reclassification or
similar transaction effected by the Company); or (viii) any person
who or which, within ten (10) business days of being requested by
the Company to advise it regarding the same, certifies to the
Company that such person acquired shares of Common Stock in excess
of 4.99% inadvertently or without knowledge of the terms of the
Rights and who or which, together with all Affiliates and
Associates, thereafter within ten (10) business days following such
certification reduces such person’s (together with its
Affiliates’ and Associates’) beneficial ownership to
less than 4.99% of the shares of Common Stock then outstanding;
provided, however, that (x) if the person
requested to so certify fails to do so within ten (10) business
days or breaches or violates such certification, then such person
shall become an Acquiring Person immediately after such ten (10)
business day period or such breach or violation or
(y) if the
person together with its Affiliates and Associates fails to reduce
beneficial ownership to less than 4.99% within ten (10) business
days following such certification, then such person shall become an
Acquiring Person immediately after such ten (10) business day
period. In addition, no person shall be an Acquiring Person if the
Board shall have affirmatively determined in light of the intent
and purposes of the Plan or other circumstances facing the Company,
that such person should not be deemed an Acquiring Person. A person
(other than any “direct public group” within the
meaning of Treasury Regulations Section 1.382-2T(j)(2)(ii))
will be treated as the beneficial owner of 4.99% or more shares of
the Common Stock if, in the determination of the Board, that person
would be treated as a “5-percent stockholder” for
purposes of Section 382 (substituting
“4.99” for “5” each time “five”
or “5” is used in or for purposes of Section
382).

 


 




 

C-2








 






 


 

 


The Rights are not
exercisable until after the Distribution Date. The Rights will
expire upon the earliest of (i) the date on which
all of the Rights are redeemed as described below, (ii) the date on
which the Rights are exchanged as described below, (iii) the
consummation of a reorganization transaction entered into by the
Company resulting in the imposition of stock transfer restrictions
that the Board determines, in its sole discretion, will provide
protection for the Company’s tax attributes similar to that
provided by the Plan, (iv) the close of business on the effective
date of the repeal of Section 382, or any other
change, if the Board determines, in its sole discretion, that the
Plan is no longer necessary or desirable for the preservation of
the Company’s tax attributes, (v) the date on which
the Board otherwise determines, in its sole discretion, that the
Plan is no longer necessary to preserve the Company’s tax
attributes, (vi) the beginning of a taxable year of the Company to
which the Board determines, in its sole discretion, that none of
the Company’s tax attributes may be carried forward, (vii)
the Close of Business on the day following the certification of the
voting results of the Company’s 2020 annual meeting of
stockholders, if at such stockholder meeting a proposal to approve
the Agreement has not been passed by the affirmative vote of the
majority of the votes cast at the 2020 annual meeting of
stockholders or any other meeting of stockholders of the Company
duly held prior to August 21, 2020, and (viii) August 21,
2022.

 


The Purchase Price, and
the number of Units, shares of Common Stock or other securities or
property issuable upon exercise of the Rights, are subject to
adjustment from time to time to prevent dilution:
(i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock; (ii) upon the grant to
holders of Preferred Stock of certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less
than the current market price of the Preferred Stock; or (iii) upon
the distribution to holders of the Preferred Stock of evidences of
indebtedness or assets (excluding dividends payable in Preferred
Stock) or of subscription rights or warrants (other than those
referred to above). The Purchase Price is also subject to
adjustment from time to time in the event of a Common Stock
dividend on, or a subdivision or combination of, the shares of
Common Stock.

 



In the event any Person becomes an Acquiring Person, then each
holder of record of a Right, other than the Acquiring Person, will
thereafter have the right to receive, upon payment of the Purchase
Price, that number of shares of Common Stock having a value at the
time the person becomes an Acquiring Person equal to twice the
Purchase Price. Any Rights that are or were at any time, on or
after the Distribution Date, beneficially owned by an Acquiring
Person will become null and void. After such an event, to the
extent that insufficient shares of Common Stock are available for
the exercise in full of the Rights, holders of Rights will receive
upon exercise a number of shares of Common Stock to the extent
available and then Units or other securities of the Company,
assets, or cash, in proportions determined by the Company, so that
the aggregate value received is equal to twice the Purchase
Price.

 



No fractional shares of Common Stock or Units will be required to
be issued upon exercise of the Rights and, in lieu thereof, a
payment in cash equal to the fraction of the then current value of
a share of Common Stock may be made.

 


 




 

C-3








 






 


 

 



At any time after a person becomes an Acquiring Person, the Board
may exchange all or part of the outstanding Rights (other than
those held by an Acquiring Person) for shares of Common Stock at an
exchange rate of one share of Common Stock (and, in certain
circumstances, a Unit) for each Right. The Company will promptly
give public notice of any exchange (although failure to give notice
will not affect the validity of the exchange).

 



At any time until the close of business on the tenth (10th)
calendar day after the day a public announcement or filing is made
indicating that a person has become an Acquiring Person (and prior
to the giving of notice of the exchange or redemption, as
applicable to the holders of the Rights), or thereafter under
certain circumstances, the Company may redeem the Rights in whole,
but not in part, at a price of $0.001 per Right.

 



Immediately upon the action of the Board authorizing exchange or
redemption of the Rights, the right to exercise the Rights will
terminate, and the only right of the holders of Rights will be to
receive (if applicable) the shares of Common Stock of the Company
(or Units) issuable in connection with the exchange or the
Redemption Price without any interest thereon.

 



Until the close of business on the tenth (10th) calendar day after
the day a public announcement or a filing is made indicating that a
person has become an Acquiring Person, or thereafter under certain
circumstances, the Company may amend the Rights in any manner. The
Company may also amend the Plan after the close of business on the
tenth (10th) calendar day after the day a public announcement or
filing is made indicating that a person has become an Acquiring
Person, to cure ambiguities, to correct defective or inconsistent
provisions or to otherwise change or supplement the Plan in any
manner that does not adversely affect the interests of holders of
the Rights.

 



Until a Right is exercised, the holder, as such, will have no
rights as a stockholder of the Company, including the right to vote
or to receive dividends.

 



The issuance of the Rights should not be taxable to the Company or
to stockholders under presently existing federal income tax law.
However, if the Rights become exercisable or are redeemed,
stockholders may recognize taxable income, depending on the
circumstances then existing.

 


A copy of the Plan has
been filed with the Securities and Exchange Commission as an
Exhibit to a Current Report on Form 8-K filed on August 22,
2019. In addition, a copy of the Plan is available free of charge
from the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Plan, which is incorporated in this summary
description by reference.




 

C-4