VMware 2014 Annual Report Download - page 112

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Exhibit 10.28
Approved on February 25, 2015
performance is delivered to the Participant by the Board, which demand specifically identifies the manner in which the Board believes that the
Participant has not substantially performed such duties or responsibilities, provided that the following will not constitute Cause: (A) the
Participant’s incapacity due to physical or mental illness; (B) any such actual or anticipated failure after the issuance of a Notice of Termination
by the Participant for Good Reason; or (C) the Company’s active or passive obstruction of the performance of the Participant’s duties and
responsibilities;
(ii) the conviction of the Participant by a court of competent jurisdiction for felony criminal misconduct; or
(iii) the willful engaging by the Participant in fraud or dishonesty, which is demonstrably and materially injurious to the
Company or its reputation, monetarily or otherwise, including but not limited to an act constituting misappropriation or embezzlement of
property .
No act or failure to act on the Participant’s part will be deemed “willful” for purposes of this Cause definition unless
committed or omitted by the Participant in bad faith and without reasonable belief that his or her act or failure to act was in, or not opposed to,
the best interests of the Company. In order to terminate a Participant for Cause during the Protected Period, the Company is required to deliver a
Notice of Termination to the Participant in accordance with the procedure set forth in Section 7 below.
Solely for the avoidance of doubt, during the Protected Period, this definition of “Cause” with respect to termination of
employment of the Participant will supersede any and all similar definitions of termination for Cause set forth in agreements between the
Participant and the Company and any Plans in which the Participant participates.
(d) “Change in Control” of the Company means and includes any of the following occurrences:
(i)
Any Person is or becomes the Beneficial Owner, 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 (ii) below. For the avoidance of doubt, any change in the Persons who are the direct or indirect Beneficial Owners of
the securities of EMC will not be deemed to constitute a change in the direct or indirect Beneficial Owners of the Company for purposes of this
subsection (i);
(ii) 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;
(iii) 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;
2