1.01 | Preamble | 1 |
1.02 | Plan | 1 |
1.03 | Plan Sponsor | 1 |
1.04 | Employer | 2 |
1.05 | Administrator | 2 |
1.06 | Key Employee Determination Dates | 2 |
2.01 | Participation | 3 |
3.01 | Compensation | 4 |
3.02 | Bonuses | 5 |
4.01 | Participant Contributions | 6 |
5.01 | Employer Contributions | 9 |
6.01 | Distributions | 12 |
7.01 | Vesting | 16 |
8.01 | Unforeseeable Emergency | 20 |
9.01 | Investment Decisions | 21 |
10.01 | Trust | 22 |
11.01 | Termination Upon Change In Control | 23 |
11.02 | Automatic Distribution Upon Change In Control | 23 |
11.03 | Change In Control | 23 |
12.01 | Governing State Law | 24 |
Appendix A | 26 |
(a) | ¨ adopts a new plan as of [month, day, year] |
(b) | x amends and restates its existing plan as of January 1, 2020 which is the Amendment Restatement Date. Except as otherwise provided in Appendix A, all amounts deferred under the Plan prior to the Amendment Restatement Date shall be governed by the terms of the Plan as in effect on the day before the Amendment Restatement Date. |
Plan Name: | VMware, Inc. Non-Qualified Deferred Compensation Plan |
Plan Year: | Year ending December 31 |
Name: | VMware, Inc. |
Mailing Address: | 3401 Hillview Avenue, Palo Alto, CA 94034 |
Physical Address: | 900 Arastradero Road, Building C, Palo Alto, CA 94034 |
Phone #: | 650-427-4361 |
EIN #: | 94-3292913 |
Fiscal Year: | Year ending December 31 |
Entity | Publicly Traded on Est. Securities Market | |
Yes | No | |
Pivotal Software, Inc. (EIN 94-3094578) | ¨ | x |
¨ | ¨ | |
¨ | ¨ | |
¨ | ¨ | |
¨ | ¨ | |
¨ | ¨ | |
¨ | ¨ |
Name: | Persons delegated authority by the Compensation & Corporate Governance Committee |
Address: |
(a) | x Employees [complete (i), (ii) or (iii)] |
(i) | x Eligible Employees are selected by the Employer. |
(ii) | ¨ Eligible Employees are those employees of the Employer who satisfy the following criteria: |
(iii) | ¨ Employees are not eligible to participate. |
(b) | x Directors [complete (i), (ii) or (iii)] |
(i) | ¨ All Directors are eligible to participate. |
(ii) | ¨ Only Directors selected by the Employer are eligible to participate. |
(iii) | x Directors are not eligible to participate. |
(a) | x Compensation is defined as: |
Base Salary, Employee Bonus Plan, Executive Bonus Plan and Commissions |
(b) | ¨ Compensation as defined in [insert name of qualified plan] without regard to the limitation in Section 401(a)(17) of the Code for such Plan Year. |
(c) | ¨ Director Compensation is defined as: |
(d) | ¨ Compensation shall, for all Plan purposes, be limited to $ . |
(e) | ¨ Not Applicable. |
Type | [Will be treated as] Performance Based Compensation | |
Yes | No | |
Employee Bonus Plan | ¨ | x |
Executive Bonus Plan | ¨ | x |
¨ | ¨ | |
¨ | ¨ | |
¨ | ¨ |
(a) | Amount of Deferrals |
(i) | Compensation other than Bonuses [do not complete if you complete (iii)] |
Type of Remuneration | Dollar Amount | % Amount | Increment | ||
Min | Max | Min | Max | ||
Base Salary | 5% | 75% | 1% | ||
Commissions | 5% | 100% | 1% | ||
% | % | % |
(ii) | Bonuses [do not complete if you complete (iii)] |
Type of Bonus | Dollar Amount | % Amount | Increment | ||
Min | Max | Min | Max | ||
Employee Bonus Plan | 5% | 100% | 1% | ||
Executive Bonus Plan | 5% | 100% | 1% | ||
% | % | % |
(iii) | Compensation [do not complete if you completed (i) and (ii)] |
Dollar Amount | % Amount | Increment | ||
Min | Max | Min | Max | |
% | % | % |
(iv) | Director Compensation |
Type of Compensation | Dollar Amount | % Amount | Increment | ||
Min | Max | Min | Max | ||
Annual Retainer | % | % | % | ||
Meeting Fees Other: | % | % | % | ||
Other: | % | % | % | ||
Other: | % | % | % |
(b) | Election Period |
(i) | Performance Based Compensation |
¨ | Does |
x | Does Not |
(ii) | Newly Eligible Participants |
x | May |
¨ | May Not |
(c) | Revocation of Deferral Agreement |
x | Will |
¨ | Will Not |
(d) | No Participant Contributions |
(i) | Amount |
(A) | ¨ [insert percentage]% of the Compensation the Participant has elected to defer for the Plan Year |
(B) | x An amount determined by the Employer in its sole discretion |
(C) | ¨ Matching contributions for each Participant shall be limited to $ and/or [insert percentage]% of Compensation |
(D) | ¨ Other: |
(E) | ¨ Not Applicable [Proceed to Section 5.01(b)] |
(ii) | Eligibility for matching contribution |
(A) | ¨ Describe requirements: |
(B) | x Is selected by the Employer in its sole discretion to receive an allocation of matching contributions |
(C) | ¨ No requirements |
(iii) | Time of Allocation |
(A) | ¨ As of the last day of the Plan Year |
(B) | x At such times as the Employer shall determine in its sole discretion |
(C) | ¨ At the time the Compensation on account of which the matching contribution is being made would otherwise have been paid to the Participant |
(D) | ¨ Other: |
(i) | Amount |
(A) | ¨ An amount equal to [insert percentage]% of the Participant’s Compensation |
(B) | x An amount determined by the Employer in its sole discretion |
(C) | ¨ Contributions for each Participant shall be limited to $ |
(D) | ¨ Other: |
(E) | ¨ Not Applicable [Proceed to Section 6.01] |
(ii) | Eligibility for Other Contribution |
(A) | ¨ Describe requirements: |
(B) | x Is selected by the Employer in its sole discretion to receive an allocation of other Employer contributions |
(C) | ¨ No requirements |
(iii) | Time of Allocation |
(A) | ¨ As of the last day of the Plan Year |
(B) | x At such times or times as the Employer shall determine in its sole discretion |
(C) | ¨ Other: |
(a) | Timing of Distributions |
(i) | All distributions shall commence in accordance with the following [choose one]: |
(A) | ¨ As soon as administratively feasible following the distribution event but in no event later than the time prescribed by Treas. Reg. Sec. 1.409A-3(d). |
(B) | ¨ Monthly on specified day [insert day] |
(C) | ¨ Annually on specified month and day [insert month and day] |
(D) | x Calendar quarter on specified month and day 1st business day of 1st month of quarter; |
(ii) | The timing of distributions as determined in Section 6.01(a)(i) shall be modified by the adoption of: |
(A) | x Event Delay – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for six (6) months |
(B) | ¨ Hold Until Next Year – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for twelve months from the date of the event if payment pursuant to Section 6.01(a)(i) will thereby occur in the next calendar year or on the first payment date in the next calendar year in all other cases |
(C) | ¨ Immediate Processing – The timing method selected by the Plan Sponsor under Section 6.01(a)(i) shall be overridden for the following distribution events [insert events]: |
(D) | ¨ Not applicable |
(b) | Distribution Events |
Lump Sum | Installments | |
(i) x Specified Date | x | 5, 11 or 15 years |
(ii) ¨ Specified Age | ¨ | years |
(iii) x Separation from Service | x | 5, 11 or 15 years |
(iv) ¨ Separation from Service plus 6 months | ¨ | years |
(v) ¨ Separation from Service plus months [not to exceed months] | ¨ | years |
(vi) ¨ Retirement | ¨ | years |
(vii) ¨ Retirement plus 6 months | ¨ | years |
(viii) ¨ Retirement plus months | ¨ | years |
(ix) ¨ Disability | ¨ | years |
(x) ¨ Death | ¨ | years |
(xi) ¨ Change in Control | ¨ | years |
(c) | Specified Date and Specified Age elections may not extend beyond age Not applicable. |
(d) | Payment Election Override |
Events | Form of Payment | |
Lump Sum | Installments | |
¨ Separation from Service | ¨ | _____ |
¨ Separation from Service before Retirement | ¨ | _____ |
x Death | x | _____ |
x Disability | x | _____ |
¨ Not Applicable | ¨ | _____ |
(e) | Involuntary Cashouts |
x | If the Participant’s vested Account at the time of his Separation from Service does not exceed $50,000, distribution of the vested Account shall automatically be made in the form of a single lump sum in accordance with Section 9.5 of the Plan. |
¨ | There are no involuntary cashouts. |
(f) | Retirement |
¨ | Retirement shall be defined as a Separation from Service that occurs on or after the Participant [insert description of requirements]: |
x | No special definition of Retirement applies. |
(g) | Distribution Election Change |
x | Shall |
¨ | Shall Not |
(h) | Frequency of Elections |
x | Has |
¨ | Has Not |
(a) | Matching Contributions |
¨ | Years of Service | Vesting % | |
0 | % | [insert “100” if there is immediate vesting] | |
1 | % | ||
2 | % | ||
3 | % | ||
4 | % | ||
5 | % | ||
6 | % | ||
7 | % | ||
8 | % | ||
9 | % |
x | Other: |
As determined by the Administrator |
¨ | Class year vesting applies: |
¨ | Not applicable. |
(b) | Other Employer Contributions |
¨ | Years of Service | Vesting % | |
0 | % | [insert “100” if there is immediate vesting] | |
1 | % | ||
2 | % | ||
3 | % | ||
4 | % | ||
5 | % | ||
6 | % | ||
7 | % | ||
8 | % | ||
9 | % |
x | Other: |
As determined by the Administrator |
¨ | Class year vesting applies: |
¨ | Not applicable. |
(c) | Acceleration of Vesting |
(i) | ¨ Death. |
(ii) | ¨ Disability. |
(iii) | ¨ Change in Control. |
(iv) | ¨ Eligibility for Retirement. |
(v) | x Other: |
As determined by the Administrator |
(vi) | ¨ Not applicable. |
(d) | Years of Service |
(i) | A Participant’s Years of Service shall include all service performed for the Employer and |
¨ | Shall |
x | Shall Not |
(ii) | Years of Service shall also include service performed for the following entities: |
(iii) | Years of Service shall be determined in accordance with [select one]: |
(A) | ¨ The elapsed time method in Treas. Reg. Sec. 1.410(a)-7 |
(B) | ¨ The general method in DOL Reg. Sec. 2530.200b-1 through b-4 |
(C) | ¨ Participant’s Years of Service credited under: |
[insert name of plan] |
(D) | x Other: |
As determined by the Administrator |
(iv) | ¨ Not applicable. |
(a) | A withdrawal due to an Unforeseeable Emergency as defined in Section 2.24: |
x | Will |
¨ | Will Not [if Unforeseeable Emergency withdrawals are not permitted, proceed to Section 9.01] |
(b) | Upon a withdrawal due to an Unforeseeable Emergency, a Participant’s deferral election for the remainder of the Plan Year: |
x | Will |
¨ | Will Not |
(a) | x The Participant or his Beneficiary |
(b) | ¨ The Employer |
(a) | x A change in the ownership of the Employer as described in Section 9.7(c) of the Plan. |
(b) | x A change in the effective control of the Employer as described in Section 9.7(d) of the Plan. |
(c) | x A change in the ownership of a substantial portion of the assets of the Employer as described in Section 9.7(e) of the Plan. |
(d) | ¨ Not Applicable. |
Plan Sponsor: | VMware, Inc. |
By: | /s/ Shannon Daly |
Title: | Senior Director, Global Benefits |