VMware 2012 Annual Report Download - page 161

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Form of PSU Agreement
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.
(f)
“ Release ” means the Company’s standard form of employee termination certificate and a general
release of all claims that the Participant may have against the Company in a form reasonably satisfactory to the
Company, which form will include customary non-solicit and non-disparagement provisions.
22.
Cancellation, Recission and Recoupment of Award . Participant hereby acknowledges that this Award and
any shares of Stock issued pursuant to this Award are subject to cancellation, recission, repayment or other action at the
discretion of the Board or the Committee as set forth in Section 7(d) of the Plan in the event that Participant engages in
“Detrimental Activity” as such term is defined therein. In addition, the Administrator has the discretion to require
Participant to reimburse the Company for all or any portion of the Stock issued pursuant to this Award, or the value
thereof, if:
(a)
the payment was predicated upon the achievement of certain financial results that were
subsequently the subject of a material financial restatement;
(b)
in the view of the Board or the Committee, the Participant engaged in fraud or misconduct that
caused or partially caused the need for a material financial restatement by the Company or any substantial affiliate; and
(c)
a lower vesting would have occurred based upon the restated financial results.
In each such instance, upon the determination of the Committee to require recoupment of a previously
issued number of shares of Stock under this Agreement, the Company will, to the extent practicable and allowable under
applicable laws, require reimbursement of any number of shares of Stock, or the value thereof, issued for the relevant
period that exceeded the lower number of shares of Stock that would have been made based on the restated financial
results, provided that the Company will not seek to recover shares of Stock issued more than three years prior to the date
the applicable restatement is disclosed.
23.
Section 409A Exemption . It is intended that the Award 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 Award will be so interpreted and administered. Notwithstanding the
foregoing, if the Company determines that the Award may not either be exempt from or compliant with Code Section
409A, the Company may, with the Participant’
s prior written consent, adopt such amendments to this Plan 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 the Award from Code Section 409A and
preserve the intended tax treatment of the Award, or (ii) comply with the requirements of Code Section 409A; provided,
11
v. 12-17-
12