EMC 2011 Annual Report Download - page 126

that is exempt from Section 409A of the Code; (B) reduction of any other payments or benefits otherwise payable to the Executive (other than those
described in clause (C) below) on a pro-rata basis or such other manner that complies with Section 409A of the Code; and (C) reduction of any payment
or benefit with respect to the acceleration of equity awards that is otherwise payable to the Executive (on a pro-rata basis as between equity awards that
are covered by Section 409A of the Code and those that are not (or such other manner that complies with Section 409A of the Code)).
(B) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the
Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a
"payment" within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken
into account which, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm (the
"Auditor") which was, immediately prior to the Change in Control, the Company's independent auditor, does not constitute a "parachute
payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating
the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable
compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable
to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments
shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
(C) At the time that payments are made under this Agreement, the Company shall provide the Executive with a written statement setting
forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other
advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in
writing shall be attached to the statement). If the Executive objects to the Company's calculations, the Company shall pay to the Executive such
portion of the Severance Payments (up to 100% thereof) as the Executive determines is necessary to result in the proper application of subsection
(A) of this Section 6.2.
6.3 Subject to Section 14.3(A), the payments provided in subsection (A) and (C) of Section 6.1 shall be made on the eighth (8th) day following
the Release Deadline; provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to
the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is
clearly entitled and shall 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 thirtieth (30th) day after the
Release Deadline (also subject to Section 14.3(A)). In the event that the amount of the estimated payments exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company
(together with interest at 120% of the rate
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