VMware 2014 Annual Report Download - page 117

Exhibit 10.28
Approved on February 25, 2015
(y) to the extent that the Board or Committee has provided or will provide for different treatment of performance-
based Equity Awards in the event of Change in Control, such different treatment set forth in the grant agreements governing such performance-
based awards will supersede the terms of this CIC Plan with respect to the effect of a Change in Control on such awards; provided , however
,
that during the Protected Period, the definitions of Cause, Change in Control, Disability, Good Reason, Involuntary Termination, Separation
from Service and Termination Date set forth in this CIC Plan will supersede the definition of such term or similar terms set forth in any such
grant agreements to the extent permitted in accordance with Section 409A.
(c) Subject to Section 6 below, all payments and benefits under subsection (a) above and the effective date of any acceleration of
vesting under subsection (b) above as to any Equity Awards held by the Participant will be made, commence or will become effective on the 30
th
day following the Termination Date or on the next business day if such 30
th
day is not a business day, with such date referred to as the
“Payment Date”; provided , however , that if Participant’s Involuntary Termination occurs in a manner that requires a release consideration
period of more than 21 days under applicable statutes and regulations, then the Payment Date will be the 55
th
day following the Termination
Date or on the next business day if such 55
th
day is not a business day. The Company will provide the Release to the Participant no later than
five business days following the Participant’s Termination Date. A Participant will not be entitled to any payment or acceleration under
subsection (a) or (b) above if the Participant’s Release has not become effective as of the third business day preceding the Payment Date (the
“Release Deadline Date” ) or the Participant revokes the Release. If the amounts of all such payments cannot be finally determined on or before
the Payment Date, the Company will pay to the Participant on the Payment Date an estimate, as determined in good faith by the Company, of the
minimum amount of such payments to which the Participant is clearly entitled and will pay the remainder of such payments (together with
interest on the unpaid remainder (or on all such payments to the extent the Company fails to make such payments when due) at 120% of the rate
provided in Section 1274(b)(2)(B) of the Code) on the 30th day after the Payment Date (also subject to Section 6). In the event that the amount
of the estimated payments exceeds the amount subsequently determined to have been due, such excess will constitute a loan by the Company to
the Participant, payable on the fifth business day after demand by the Company (together with interest at 120% of the rate.
(d) The Company will have no obligation hereunder to make any payment or offer any benefits to a Participant under this Section 3
if he or she Separates from Service under any circumstances outside the Change in Control Period, or under any circumstances that do not
constitute an Involuntary Termination, whenever occurring.
4. Merger or Consolidation . Subject to any required action by the stockholders, in the event of a dissolution, liquidation, merger or
consolidation in which the Company is not the surviving corporation or in which a majority of the outstanding shares are converted into
securities of another corporation or are exchanged for other consideration, the Company will either (a) arrange for any entity succeeding to the
business and assets of the Company to assume such awards of Participants or issue to the Participants replacement awards (which, in the case of
ISOs, satisfy, in the determination of the Committee, the requirements of Section 424 of the Code) on such entity’s equity, which will to the
extent possible preserve the value of the outstanding awards or (b) will make the outstanding awards of Participants fully exercisable or cause all
of the applicable restrictions to which outstanding awards are subject to lapse, in each case, on a basis that gives the holder of the award a
reasonable opportunity, as determined by the Committee, following the exercise of the award or the issuance of shares of Common Stock, as the
case may be, to participate as a stockholder in any such dissolution, liquidation, merger or consolidation, and the award will terminate upon
consummation of any such transaction. The existence of the CIC Plan will not prevent any such transaction and no Participant will have any
right except as herein expressly set forth. Notwithstanding the foregoing provisions of this Section 4, awards subject to and intended to satisfy
the requirements of Section 409A of the Code will be construed and administered consistent with such intent.
5. Parachute Payments
. In the event that any payment or benefit received or to be received by a Participant in connection with his or
her Involuntary Termination (collectively, the “ Severance Parachute Payments ”)
would (a) constitute a parachute payment within the meaning
of Section 280G of the Code or any similar or successor provision to 280G and (b) but for this Section 5, be subject to the excise tax imposed by
Section 4999 of the Code or any similar or successor provision to Section 4999 (the “Excise Tax” ), then such Severance Parachute Payments
will be either:
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