VMware 2012 Annual Report Download - page 142

facts and circumstances claimed to provide a basis for such termination of your employment under the provision so
indicated.
“ Parent ” means EMC Corporation, a Massachusetts corporation.
“ Person ” has the meaning ascribed to such term in Section 3(a)(9) of the Securities and Exchange Act of 1934, as
amended, (the “ Exchange Act ”) and as used in Sections 13(d) and 14(d) thereof, including a group as defined in Section
13(d) of the Exchange Act but excluding (i) the Company or Parent, any of their respective subsidiaries or any employee
benefit plan sponsored or maintained by the Company, Parent or any of their respective subsidiaries (including any trustee
or other fiduciary of any such plan), (ii) an underwriter temporarily holding securities pursuant to an offering of such
securities, or (iii) 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.
Section 409A Exemption. It is intended that the payments and other compensation contemplated by this agreement satisfy, to the
greatest extent possible, the exemption from the application of Section 409A of the Code, provided under Treasury Regulation
Section 1.409A-1(b)(4) or comply with Code Section 409A, and the this agreement will be so interpreted and administered.
Notwithstanding the foregoing, if the Company determines that payments and other compensation pursuant to this agreement may
not either be exempt from or compliant with Code Section 409A, the Company may, with your prior written consent, adopt such
amendments to this agreement or adopt other policies and procedures (including amendments, policies and procedures with
retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (i) exempt such
payments and other compensation from Code Section 409A and/or preserve the intended tax treatment of such payments and
other compensation, or (ii) comply with the requirements of Code Section 409A; provided, however, that there is no obligation on
the part of the Company to adopt any such amendment, policy or procedure or take any such other action, and in any event, no
such action will reduce the amount of payments or other compensation that is owed to your under this agreement without your prior
written consent.
Parachute Payments.
In the event that the payments and benefits provided to you herein or otherwise by the Company constitute
“parachute payments”
within the meaning of Section 280G of the Code and would, but for this provision, be subject to the excise
tax imposed by Section 4999 of the Code (the “ Excise Tax ”),
then your payments and benefits shall be either (i) delivered in full (it
being understood that no gross-
ups for taxes that may be due on such amounts should be added to such amounts) or (ii) delivered
as to such lesser extent as would result in no portion of such amounts being subject to the Excise Tax, whichever of the foregoing
results in the receipt by you on an after-
tax basis of the greatest amount, notwithstanding that all or some of the amounts may be
taxable under Section 4999 of the Code. If a reduction is to occur pursuant to the prior sentence, unless an alternative election is
permitted by, and does not result in taxation under, Section 409A and timely elected by you, the payments and benefits shall be
cutback in the following order: any cash severance you are entitled to (starting with the last payment due), then other cash amounts
that are parachute payments (starting with the last payment due), then any stock options that have exercise prices higher than the
then fair market value price of the stock (based on the latest vesting tranches), then restricted stock and restricted stock units
based on the last ones scheduled to be distributed and then other stock options based on the latest vesting tranches.
You should be aware that your employment with the Company is for no specified period and constitutes at will employment. As a
result, you are free to resign at any time, for any reason. Similarly, the Company is free to conclude its employment relationship
with you at any time, with or without cause, and with or without notice.
You agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation,
consulting or other business activity directly related to the business in which the Company is now involved or becomes involved
during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company.
By accepting this offer below and becoming an employee of VMware, you will be expected to comply with the Company's rules and
regulations, including but not limited to the Company's Business Conduct Guidelines and