VMware 2013 Annual Report Download - page 121
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that is under common control as defined in Code Section 414(c) that includes the Employer.
Whether a termination of employment has occurred is based on whether the facts and circumstances indicate
that the Related Employer and the Participant reasonably anticipated that no further services would be
performed after a certain date or that the level of bona fide services the Participant would perform after such
date (whether as an employee or as an independent contractor) would permanently decrease to no more than
20 percent of the average level of bona fide services performed (whether as an employee or an independent
contractor) over the immediately preceding 36 month period (or the full period of services to the Related
Employer if the employee has been providing services to the Related Employer for less than 36 months).
An independent contractor is considered to have experienced a Separation from Service with the Related
Employer upon the expiration of the contract (or, in the case of more than one contract, all contracts) under
which services are performed for the Related Employer if the expiration constitutes a good-faith and complete
termination of the contractual relationship.
If a Participant provides services as both an employee and an independent contractor of the Related Employer,
the Participant must separate from service both as an employee and as an independent
213
2.22
“Retirement”
has the meaning specified in 6.01(f) of the Adoption Agreement.
2.23 “Separation from Service” means the date that the Participant dies, retires or otherwise has a termination of
employment with respect to all entities comprising the Related Employer. A Separation from Service does not
occur if the Participant is on military leave, sick leave or other bona fide leave of absence if the period of leave
does not exceed six months or such longer period during which the Participant’s right to re-employment is
provided by statute or contract. If the period of leave exceeds six months and the Participant’s right to re-
employment is not provided either by statute or contract, a Separation from Service will be deemed to have
occurred on the first day following the six-month period. If the period of leave is due to any medically
determinable physical or mental impairment that can be expected to result in death or can be expected to last for
a continuous period of not less than six months, where the impairment causes the Participant to be unable to
perform the duties of his or her position of employment or any substantially similar position of employment, a 29
month period of absence may be substituted for the six month period.