VMware 2012 Annual Report Download - page 148

In order for you to invoke a termination due to Good Reason in a manner that would entitle you to Change in Control
Acceleration, (i) you must provide a Notice of Termination to the senior officer of the Company’s Human Resources group
of your intention to terminate due to such event or condition within 90 days of the initial occurrence or existence of such
event or condition and provide the Company with 30 days from receipt of the notice to remedy the event or condition, (ii)
the Company must fail to effect such remedy within the 30-day cure period, and (iii) the effective date of the resignation
must occur within 90 days after the end of the 30-day cure period.
“ Notice of Termination ” means a written notice by the Company in the event it is terminating your employment with
Cause or by you in the event you are resigning for Good Reason, which written notice indicates the specific provision in this
agreement being relied upon and sets forth in reasonable detail any 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 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 to 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 the 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 you may elect, 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.
4. a material breach of the Company’
s obligations under this agreement