EMC 2011 Annual Report Download - page 112

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
member of the Board 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 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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