VMware 2007 Annual Report Download - page 112

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Mark Peek
March 16, 2007
Page Three
Notwithstanding anything in the foregoing to the contrary, no Change in Control shall be deemed to have occurred for purposes of this
Agreement by virtue of (i) any transaction which results in Mark Peek (the “Executive”), or a group of Persons which includes Executive,
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 of the Company’s shares to its shareholders in the form of a stock
dividend.
Person, as used above, shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its subsidiaries and affiliates, (ii) a trustee or
other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities and (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
Cause
The occurrence of any of the following, as reasonably determined by VMware in good faith, shall constitute “Cause,” provided that you
have been given notice by VMware of the existence of Cause and, if the existence of Cause is curable, a reasonable opportunity to cure the
existence of such Cause:
(i)
willful neglect, failure or refusal by the you to perform your employment duties (except resulting from your incapacity due to
illness) as reasonably directed by VMware;
(ii)
willful misconduct by you in the performance of your employment duties;
(iii)
the Participant
’
s indictment for a felony (other than traffic related offense) or a misdemeanor involving moral turpitude; or
(iv)
your commission of an act involving personal dishonesty that results in financial, reputational, or other harm to VMware and
its affiliates and subsidiaries, including, but not limited to, an act constituting misappropriation or embezzlement of property.