VMware 2014 Annual Report Download - page 118

Exhibit 10.28
Approved on February 25, 2015
(vi) delivered in full, or
(vii) delivered as to such lesser extent that would result in no portion of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal, state and local income and payroll taxes and the Excise Tax,
results in the receipt by the Participant on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such
benefits may be taxable under the Excise Tax. Unless the Company and the Participant otherwise agree in writing, any determination required
under this Section 5 will be made in writing in good faith by a “Big Four” national accounting firm selected by the Company (the
“Accountants” ). If a reduction in the payments or benefits is required under this Section 5, and if none of the payments or benefits is subject to
Code Section 409A, then the reduction will occur in the manner a Participant elects in writing prior to the date of payment; provided however
that if the manner elected by the Participant pursuant to this sentence could in the opinion of the Company result in any of the payments or
benefits becoming subject to Code Section 409A, then the following sentence will instead apply. If any payment or benefit is subject to Code
Section 409A or a Participant fails to elect an order under the preceding sentence, then the reduction will occur in the following order: (i)
cancellation of acceleration of vesting on any Option Rights for which the exercise price exceeds the then fair market value of the underlying
equity; (ii) reduction in the cash payments provided for under Section 3(a); and (iii) cancellation of acceleration of vesting of Equity Awards not
covered under (i) above; provided , however
, that in the event that acceleration of vesting of Equity Awards is to be cancelled, such acceleration
of vesting will be cancelled in the reverse order of the date of grant of such Equity Awards, that is, later Equity Awards will be canceled before
earlier equity awards. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code.
Any good faith determination of the Accountants made hereunder will be final, binding and conclusive upon the Company and the Participant.
The Company and the Participant must furnish to the Accountants such information and documents as the Accountants may reasonably request
in order to make a determination under this Section 5. The Company will bear all costs the Accountants may incur in connection with any
calculations contemplated.
6. Section 409A . To the fullest extent applicable, amounts and other benefits payable under this CIC Plan are intended to be exempt
from the definition of “nonqualified deferred compensation” under Section 409A. To the extent that any amount or benefit provided under this
CIC Plan is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred
compensation under Section 409A, this CIC Plan is intended to comply with the applicable requirements of Section 409A with respect to such
amounts or benefits so as to avoid the application of Section 409A(a)(1) to any amount or benefit provided for in this CIC Plan. To the extent
possible, this CIC Plan will be interpreted and administered in a manner consistent with the foregoing statement of intent. For purposes of
Section 409A and to the extent applicable, each payment and benefit under Sections 3(a), 3(b) and Section 4 is designated as a separate payment.
If the Company determines that a Participant is a Key Employee at the time of the Participant’s Involuntary Termination, then (i) to the extent
such payments or benefits are subject to Section 409A, (ii) to the extent necessary to avoid any portion of such payments and benefits being
subject to Code Section 409A(a)(1), and (iii) notwithstanding anything to the contrary in Section 3(c) above, such amounts and benefits provided
for will be paid, commence or be distributed, as applicable, in lump sum on or as of the first business day of the seventh month after a
Participant’s Involuntary Termination. Notwithstanding anything to the contrary in Section 3(c) above, if distribution as required under Section 3
(c) or Section 4 of shares or other property with respect to Equity Awards the vesting of which has been accelerated under Section 3(b)(ii) or
Section 4 would subject such awards to adverse tax consequences under Section 409A, then the shares or property will be distributed only at the
time(s) and according to the schedule on which such distributions were scheduled to be made under the original terms of the award agreement(s)
governing the Equity Awards. To the extent required to avoid accelerated recognition of taxable income or imposition of additional tax under
Section 409A, the amount of any in-kind benefits provided during a taxable year may not affect the expenses eligible for reimbursement, or in-
kind benefits to be provided in any other taxable year. Any required reimbursement of an amount under the CIC Plan will be made on or before
the last day of the Participant’s taxable year following the taxable year in which the expense was incurred. Any right to reimbursement or to in-
kind benefits is not subject to liquidation or exchange for another benefit.
8