EMC 2008 Annual Report Download - page 155

Compensation would otherwise have been paid to the Participant. A Participant's Elective Deferrals may be taken from the Participant's Compensation and
credited to the Participant's Elective Deferral Subaccount ratably during the applicable Plan Year or in any other manner determined by the Company;
provided that such Elective Deferrals during the Plan Year, in the aggregate, reflect the Participant's Elective Deferrals in accordance with Code section 409A.
Company Credits will be credited to each Participant's Company Credit Subaccount at a time the Company determines in its sole discretion. The
Administrator will provide each Participant with a statement of his or her Account as soon as reasonably practicable after the end of each Plan Year.
5.2. Earnings Measurement. The Administrator will identify one or more funds (such as mutual funds or bank collective funds) from time to time
for the purpose of measuring earnings credits to Participants' Accounts. Each Participant may specify—in a form and manner and with notice as the
Administrator may prescribe—which fund or funds he or she wishes to be used to measure earnings for designated percentages of his or her Account. A
deferral of RSUs will be treated as invested in Company Stock. The Participant's directions may be given on a prospective basis only, and the Participant may
change those directions no more than once every thirty (30) days or with some other frequency that the Administrator prescribes. Each Participant's Account
will be adjusted from time to time (at least quarterly) to reflect the fair market value that would be ascribed to the Account if the amounts credited to the
Account were actually invested in the funds as directed by the Participant. Any earnings credits on Company Credits will begin to accrue as of the date the
Company designates.
5.3. Payments. Each Participant's Account will be reduced by the amount of any payment made to or on behalf of the Participant under Article 6 as
of the date the payment is made.
5.4. Vesting. A Participant will at all times be 100% vested in amounts credited to his or her Elective Deferral Subaccount. A Participant will earn a
vested interest in amounts credited to his or her Company Credit Subaccount according to any vesting schedule that the Company adopts in its sole discretion.
However, if a Participant becomes Disabled or a Change of Control occurs, the Participant will become 100% vested in his or her Company Credit
Subaccount.
5.5. Detrimental Activity.
(a) Notwithstanding any other provisions of the Plan, if a Participant engages in "Detrimental Activity" (as defined below) at any time, the
Administrator may in its sole discretion cancel or rescind at any time all amounts, if any, credited to the Participant's Company Credit subaccount,
whether or not fully vested. Furthermore, if a Participant engages in Detrimental Activity at any time during the twelve (12) months after the
termination of his or her employment with the Company or any of its Subsidiaries for any reason or termination of service as a director of the Company
for any reason, as the case may be, the Company may require the Participant at any time until the later of (A) two (2) years after the Participant's
termination of employment for any reason or termination of service as a director of the Company for any reason, 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