VMware 2014 Annual Report Download - page 113

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Exhibit 10.28
Approved on February 25, 2015
(iv) The individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Board
;
or
(v) EMC becomes the Beneficial Owner of 90% or more of each class of the Company’s then-outstanding capital stock
through a transaction or series of transactions, including without limitation, a tender for shares or otherwise, and regardless of whether the
transaction or series of transactions has been fully consummated at such time.
Any other provision of this definition notwithstanding, the term Change in Control will not be deemed to have occurred with
respect to a Participant for purposes of this CIC Plan by virtue of: (I) any transaction that results in such Participant, or a group of Persons in
which such Participant has a substantial interest, acquiring, directly or indirectly, 35% or more of either the then outstanding shares of common
stock of the Company or the combined voting power of the Company’s then outstanding securities, or (II) EMC’s distribution or transfer of the
Company’s shares in a transaction intended to qualify as a tax-free distribution or transfer under Code Section 355 ( “355 Distribution”) .
(e) “Change in Control Period” means the period beginning on the effective date of a Change in Control and ending on the first
anniversary of such effective date. With respect to Participants who experience a Good Reason to resign prior to or on the first anniversary of
such effective date, the Change in Control Period will be extended to end on the last date that such Participant is still eligible to resign for Good
Reason in accordance with the procedure set forth in Section 7(b) below.
(f) “Code” means the Internal Revenue Code of 1986, as amended.
(g) “Company” means VMware, Inc., a Delaware corporation, and any successor as provided in Section 10 below.
(h) “Disability” means that, at the time a Participant Separates from Service, he or she has been unable to perform the duties of his
or her position for a period of 180 consecutive days as the result of the Participant’
s incapacity due to physical or mental illness. Any question as
to the existence of the Participant’s Disability upon which the Participant and the Company cannot agree will be determined by a qualified
independent physician who will have been jointly selected by (i) a physician selected by the Participant (or, if the Participant is unable to make
such selection, by any adult member of the Participant’s immediate family), and (ii) a physician selected by the Company. The determination of
such physician made in writing to the Company and to the Participant will be final and conclusive for all purposes of this CIC Plan, absent fraud.
Solely for the avoidance of doubt, during the Protected Period, this definition of “Disability” with respect to termination of
employment of the Participant will supersede any and all similar definitions of termination for Disability set forth in agreements between the
Participant and the Company under the Company’s equity plans.
(i) “EMC” means EMC Corporation, a Massachusetts corporation.
(j) “Good Reason” for a Participant to resign his or her employment means that one or more of the following has occurred during
the Protected Period without Participant’s express written consent:
(i) any materially adverse alteration in the Participant’s role or to the nature or status of the Participant’s responsibilities
relative to his or her role or responsibilities, provided that neither a mere change in title nor in the fact that the Participant no longer holds
following a Change in Control the same position in a public company as he or she held before the transaction will alone constitute Good Reason,
except that, with respect to the Chief Executive Officer, Chief Financial Officer and General Counsel of the Company, no longer holding the
position of Chief Executive Officer, Chief Financial Officer or General Counsel, respectively, in a public company following a Change in
Control will itself be a materially adverse alteration in the Participant’s responsibility, role and status constituting Good Reason;
3