VMware 2012 Annual Report Download - page 159

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Form of PSU Agreement
reasonable belief that his or her act or failure to act was in, or not opposed to, the best interests of the Company.
(b)
Change in Control . “Change in Control” of the Company means and includes any of the
following occurrences:
(1)
Any Person is or becomes the “ Beneficial Owner ” (as defined in Rule 13d-3
promulgated under the Securities and Exchange Act of 1934, as amended (the “ Exchange Act ”)),
directly or indirectly,
of securities of the Company representing 35% or more of the combined voting power of the Company’s then
outstanding securities, excluding any Person who becomes a Beneficial Owner in connection with subsection 2 below.
For the avoidance of doubt, any change in the Persons who are the direct or indirect Beneficial Owners of the securities
of Parent will not be deemed to constitute a change in the direct or indirect Beneficial Owners of the Company for
purposes of this subsection (1);
(2)
There is consummated a merger or consolidation of the Company with any other
corporation or similar entity, other than (A) a merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity or any parent thereof) at least 50% of the
combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding
immediately after such merger of consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly
or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company or its affiliates) representing 35% or more of the combined voting power
of the Company’s then outstanding securities; or
(3)
The stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company, or there is consummated an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets, other than, following a “355 Distribution” (as defined below), a sale or
disposition by the Company of all or substantially all of the Company’s assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned by stockholders of the Company in substantially the same
proportions as their ownership of the Company immediately prior to such sale.
Any other provision of this definition notwithstanding, the term Change in Control will not be deemed to
have occurred by virtue of: (i) any transaction which results in such Participant, or a group of Persons in which such
Participant has a substantial interest, 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)
Parent’s distribution of the Company’s shares in a transaction intended to qualify as a distribution under Section 355 (“
355 Distribution ”) of the Internal Revenue Code of 1986, as amended (the “ Code ”).
9
v. 12-17-
12