EMC 2010 Annual Report Download - page 110

as the case may be, or (B) two (2) years after the Participant engaged in Detrimental Activity to pay to the Company (1) an amount equal to any
distributions previously made by the Company to the Participant from his or her Company Credit Account and (2) if the Company commences an
action against the Participant (by way of a claim or counterclaim and including declaratory claims) in which it is preliminarily or finally determined that
the Participant engaged in Detrimental Activity or otherwise violated this Section 5.5, an amount equal to the Company's costs and fees incurred in the
action, including but not limited to, the Company's reasonable attorneys' fees. The Company will be entitled to set off any amounts the Participant owes
to the Company against any amounts the Company owes the Participant, including without limitation, any amounts to be distributed from the
Participant's Elective Deferral Subaccount. This offset may be applied only at the time amounts are distributable in accordance with the Plan's terms,
except that offset for any debt incurred in the ordinary course of the relationship between the Company or Subsidiary and the Participant may occur on
an accelerated basis as to a maximum of $5,000 in any year.
(b) "Detrimental Activity" means, in the Company's sole determination, that the Participant has, directly or indirectly, (a) become associated in
any capacity with any enterprise that is, or may be deemed to be, in competition with any business of the Company or any of its Subsidiaries,
(b) solicited, induced or attempted to induce, in any enterprise that is competitive with the Company or any of its Subsidiaries, any customers or
employees of the Company to curtail or discontinue their relationship with the Company or any of its Subsidiaries, (c) disclosed, communicated or
misused, to the detriment of the Company or any of its Subsidiaries, any confidential or proprietary information relating to the Company or any of its
Subsidiaries to any person or entity not associated with the Company or any of its Subsidiaries, (d) failed to comply with the terms of the Plan,
(e) failed to comply with any term of the Company's Key Employee Agreement (irrespective of whether the Participant is a party to the Key Employee
Agreement), (f) engaged in any activity that results in termination of the Participant's employment for Cause (as defined in the Company's Amended
and Restated 2003 Stock Plan), (g) violated any rule, policy, procedure or guideline of the Company or any of its Subsidiaries, or (h) been convicted of,
or has entered a guilty plea with respect to, a crime whether or not connected with the Company or any of its Subsidiaries.
(c) Notwithstanding anything herein to the contrary, this Section 5.5 does not in any way amend, modify or affect any other plan, agreement,
instrument or understanding, including without limitation, any of the Company's equity plans, or any of the rights of the Company or any of its
Subsidiaries thereunder with respect to any Detrimental Activity or similar activity committed by a Participant. The Company expressly reserves all of
its rights under any such other plan, agreement, instrument or understanding, and this Section 5.5 does not constitute a waiver of any such rights.
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