Form 8-K

Date: April 23^rd, 2013

/s/ Janet B. Wright

Janet B. Wright,

Vice President and Assistant Secretary

(Duly Authorized Officer)

0001193125-13-167317.txt : 20130423 0001193125-13-167317.hdr.sgml : 20130423 20130423160636 ACCESSION NUMBER: 0001193125-13-167317 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20130417 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20130423 DATE AS OF CHANGE: 20130423 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELL INC CENTRAL INDEX KEY: 0000826083 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 742487834 STATE OF INCORPORATION: DE FISCAL YEAR END: 0129 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-17017 FILM NUMBER: 13776614 BUSINESS ADDRESS: STREET 1: ONE DELL WAY STREET 2: STED CITY: ROUND ROCK STATE: TX ZIP: 78682-2244 BUSINESS PHONE: 5127284737 MAIL ADDRESS: STREET 1: ONE DELL WAY CITY: ROUND ROCK STATE: TX ZIP: 78682 FORMER COMPANY: FORMER CONFORMED NAME: DELL COMPUTER CORP DATE OF NAME CHANGE: 19920703 8-K 1 d526183d8k.htm FORM 8-K Form 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): April 17, 2013

Dell Inc.

(Exact name of registrant as specified in its charter)

Delaware

0-17017

74-2487834

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)


One Dell Way, Round Rock, Texas		78682
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (800) 289-3355

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02 — Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(e) On April 17, 2013, the Leadership Development and Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of Dell Inc. (the “Company”) approved a program to provide special retention cash bonus awards (the “Retention Awards”) to aid in the retention of certain key employees, including members of the executive leadership team, vice presidents and executive directors of the Company who are critical to the Company’s future success. This group of key employees includes the named executive officers of the Company other than Michael S. Dell, Chairman and Chief Executive Officer of the Company.

The following description of the Retention Awards is qualified in all respects by the terms of the Retention Awards, which are described in the special retention program overview and the form of special retention award agreement filed as Exhibits 10.1 and 10.2, respectively, to this current report on Form 8-K and incorporated by reference in this Item 5.02(e).

Under the terms of the Retention Awards, award recipients are entitled to receive performance-based cash bonuses ranging from 0% to 100% of their respective base salaries based on the Company’s fiscal year 2014 free operating cash flow performance. This bonus will be payable in March 2014 if the award recipient has remained continuously employed by the Company through the payment date. If the Company terminates the award recipient’s employment without cause prior to the payout date, the award recipient is entitled to receive 75% of the maximum Retention Award value as soon as administratively practicable following termination of employment. The Retention Awards provide that if any rights, payments or benefits provided by the Company to an award recipient following a change in control of the Company (“Change in Control Payments”) would be subject to the excise tax imposed under Section 4999 or non-deductibility under Section 280G of the Internal Revenue Code of 1986, as amended (the “Golden Parachute Code Sections”), payment of the Retention Award will be reduced or eliminated to the extent necessary to avoid application of the excise tax so long as the reduction or elimination would result in a larger net after-tax payment (the “Best-After Tax Result”) to the award recipient in connection with the Change in Control Payments.

Also on April 17, 2013, the Committee approved amendments to the Company’s equity award agreements for grants of restricted stock, restricted stock units (“RSUs”) and performance-based restricted stock units (“PBUs”) issued under the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan and the Dell Inc. 2012 Long-Term Incentive Plan (collectively, the “Existing Award Grants”).

The following description of these amendments is qualified in all respects by the terms of the amendments, which are filed as Exhibits 10.3, 10.4, 10.5 and 10.6 to this current report on Form 8-K and incorporated by reference in this Item 5.02(e).

The amendments provide for accelerated vesting of Existing Award Grants if the recipient’s employment with the Company is terminated without cause within two years following a change in control of the Company. Any accrued dividend equivalents with respect to the RSUs and PBUs will vest and be paid in cash upon delivery of the shares underlying the RSUs and PBUs. In addition, in connection with a change in control of the Company, the amendments provide that the Board or Committee may direct that, in lieu of delivering shares of Company common stock upon the vesting of awards, the Company may provide for award holders to receive cash or other consideration of at least equal value. Such other consideration would continue to be subject to the vesting conditions applicable to the Existing Award Grants and also would have the benefit of accelerated vesting if the recipient’s employment with the Company is terminated without cause within two years following the change in control. With respect to PBUs, the amendments provide that if not otherwise provided for in any agreement pursuant to which the transactions

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constituting the change in control are effected, the PBUs will be deemed to be earned at the target level of performance. The amendments provide for reduction or elimination of vesting or payment of long-term incentive plan awards to the extent necessary to produce the Best After-Results in the application of the Golden Parachute Code Sections. No amendments were made to Equity Award Grants held by Mr. Dell or by members of the Board.

The Existing Award Grants subject to the amendments include awards held by the Company’s currently serving named executive officers, other than Mr. Dell. As of the date of this report, Brian T. Gladden, Senior Vice President and Chief Financial Officer, held RSUs for 95,886 shares, and Stephen J. Felice, President, Chief Commercial Officer, held RSUs for 95,886 shares. Each of these officers also held PBUs for a number of shares that will be fixed upon the vesting of such awards and based on performance outcomes. Assuming the target performance metrics are achieved or deemed to be achieved, Mr. Gladden held PBUs for 353,283 shares and Mr. Felice held PBUs for 401,577 shares. In addition, the maximum Retention Award payable to Mr. Gladden based on his base salary would be $775,000, and the maximum Retention Award payable to Mr. Felice based on his base salary would be $800,000.

Item 9.01 — Financial Statements and Exhibits.

Dell herewith files the following documents as exhibits to this report:

(d)

Exhibits


Exhibit Number		Description

10.1		Special Retention Program Overview

10.2		Form of Special Retention Award Agreement

10.3		Form of Amendment to Restricted Stock Agreement under the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan

10.4		Form of Amendment to Stock Unit Agreement under the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan

10.5		Form of Amendment to Stock Unit Agreement under the Dell Inc. 2012 Long-Term Incentive Plan

10.6		Form of Amendment to Performance Based Stock Unit Agreement under the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

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EXHIBIT INDEX


Exhibit Number		Description

10.1		Special Retention Program Overview

10.2		Form of Special Retention Award Agreement

10.3		Form of Amendment to Restricted Stock Agreement under the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan

10.4		Form of Amendment to Stock Unit Agreement under the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan

10.5		Form of Amendment to Stock Unit Agreement under the Dell Inc. 2012 Long-Term Incentive Plan

10.6		Form of Amendment to Performance Based Stock Unit Agreement under the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan

EX-10.1 2 d526183dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

Special Retention Bonus Program Overview

Bonus Pool: Aggregate bonus pool equal to $91.112M

Eligibility: Executive Leadership Team, Vice-Presidents, and Executive Directors

Performance Metrics: Operating free cash flow (OFCF) tied to the FY14 Incentive Bonus Plan (IBP)

Payout: Ranges from 0 to 100% of base salary based on OFCF performance and payable on the same the date as the FY14 IBP payout

Termination without Cause: Employees will forfeit right to retention bonus if the employee is not employed on the bonus payout date unless employee is terminated by Dell without cause which results in a payout equal to 75% of maximum payout amount.

Bonus Opportunity: Executive Leadership Team equal to 100% of base salary and all other executives based on increments of 25%, 50%, 75% or 100% of base salary

Change in Control: Retention bonus will be payable regardless of whether a change in control takes place or Dell remain a publicly traded company.

EX-10.2 3 d526183dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

Special Retention Award Agreement

Dell Inc., a Delaware corporation, its subsidiaries, affiliates, successors and assigns (collectively “Dell”), is pleased to offer you this Special Retention Award Agreement (referred to herein as the “Award” or “Award Agreement”). Dell expects your future contribution to drive its continued success and wants to provide you with both the strategic tools and the financial incentive to achieve Dell’s long-term goals. As a material inducement to Dell to grant you this Award, you agree to the following terms and conditions. You agree that you are not otherwise entitled to this Award, that Dell is providing you this Award in consideration of your promises and agreements below, that this Agreement constitutes the entirety of your agreement with Dell with respect to the matters addressed herein and that Dell would not grant you this Award absent those promises and agreements.

1. Retention Award – You will receive a one-time cash incentive and retention award up to a maximum of $ , in (“Award Payment”). Your Award Payment will be reduced by the Board of Directors of Dell (the “Board”) or Leadership Development and Compensation Committee of the Board of Directors (the “Committee”) if Dell does not meet its operating free cash flow goal for Fiscal Year 2014 (based on the Board’s or the Committee’s determination of operating free cash flow in accordance with the Dell Inc. Incentive Bonus Plan without taking into account any other modifiers under the Dell Inc. Incentive Bonus Plan (for example, BU or individual)). Your Award Payment will be paid to you on the date of payout of your Fiscal Year 2014 bonus under the Dell Inc. Incentive Bonus Plan (“Payout Date”). If your Employment is terminated by you for any reason or by Dell for Cause (as defined herein) prior to the Payout Date, you will not be eligible for the Award Payment as the Award Payment is not earned until the Payout Date. If your Employment is terminated by Dell without Cause, Dell shall pay you 75% of your maximum Award Payment as soon as administratively practical and in all events no later than the Payout Date. An approved leave of absence will have no impact on how your Award Payment is calculated.

2. Agreement with Respect to Taxes – You must pay any taxes that are required by law and agree that Dell may withhold any such taxes under applicable law. You also agree that, subject to compliance with applicable law, Dell may recover from you taxes which may be payable by Dell in any jurisdiction in relation to this Award.

3. Internal Revenue Code Section 409A—This Award Agreement is intended to be excluded from coverage under Section 409A of the Internal Revenue Code (the “Code”) pursuant to the “short-term deferral exception” under Section 1.409A-1(b)(4). Dell makes no representations or warranty and shall have no liability to you or any other person if any provisions of or payments under this Agreement are determined to constitute nonqualified deferred compensation subject to Internal Revenue Code Section 409A but not to satisfy the conditions of that section.

4. Repayment of Award – To protect Dell confidential information, trade secrets, goodwill, and other valuable assets of Dell, and as a material inducement to Dell to entering into this Award Agreement, you agree that if Dell, acting through the-Committee, or its designee, determines that you engaged in Repayment Behavior (as defined herein) and that the Repayment Behavior occurred prior to March 31, 2015, you shall be required to return to Dell, upon demand, the Award Payment you received under this Agreement. The Committee or its designee shall have complete and absolute authority to construe and interpret the provisions of this Agreement, including but not limited to whether you have engaged in Repayment Behavior. All determinations by the Committee are final and binding on all parties.

5. Exclusive Venue and Choice of Law – Venue for any legal proceeding brought concerning this Award Agreement, including, without limitation, any action brought by Dell to enforce this Award Agreement or by you with respect to your rights under this Award Agreement or any petition for declaratory relief, or any other legal proceeding pertaining to this Award Agreement, shall be exclusively in the Delaware state courts, in the county of New Castle, Delaware. In addition, the New Castle County court shall apply Delaware law without regard to the Delaware choice of law provisions. Both you and Dell voluntarily submit to the jurisdiction and venue of the New Castle County courts and the application of Delaware law.

6. Definitions – As used herein the following terms will have the following meanings:

“Cause” means: (a) a violation of your obligations regarding confidentiality or the protection of sensitive, confidential or proprietary information, or trade secrets; (b) an act or omission by you resulting in you being charged with a criminal offense which constitutes a felony or involves moral turpitude or dishonesty; (c) conduct by you which constitutes gross neglect, insubordination, willful misconduct, or a breach of Dell’s Code of Conduct or a fiduciary duty to Dell or its shareholders; or (d) Dell Senior Management’s determination that you violated state or federal law relating to the workplace environment, including, without limitation, laws relating to sexual harassment or age, sex, race, or other prohibited discrimination.

“Direct Competitor” means any entity or other business concern that offers or plans to offer products or services that are materially competitive with any of the products or services being manufactured, offered, marketed, or are actively developed by Dell as of the date of your execution of this Award Agreement or the date your employment with Dell ends, whichever is later. By way of illustration, and not by limitation, at the time of execution of this Award Agreement, you and Dell agree that the following companies meet the definition of Direct Competitor: Accenture, Acer, Apple, CDW, Cisco, Cognizant, Computer Sciences Corporation, EMC, Hewlett-Packard, IBM, Infosys, Lenovo, Oracle, Samsung, Tata, and Wipro. You understand and agree that the foregoing list of Direct Competitors represents an example of entities which compete with Dell in a material way, and are thus considered Dell Direct Competitors. You further understand and agree: (a) that other entities are or may become Direct Competitors based on whether they compete with Dell in a material way; (b) that entities may become Direct Competitors, among other ways, as a result of Dell entering a new area of business or growing in an area of business or a competitor entering a new area of business or growing in an area of business; and (c) that the above illustrative list is in no way meant to limit the definition of Direct Competitor to that list or any other finite list.

“Repayment Behavior” means your (a) beginning employment with a Direct Competitor in a role which is similar to any role you held at Dell during the 24 months prior to your termination or in a role which could result in your using Dell confidential information or trade secrets, (b) disclosure of any Dell confidential information or trade secrets, (c) soliciting any Dell employee to leave Dell’s employ, or (d) defrauding or stealing from Dell or any Dell customer or partner. You understand and agree that this provision does not prohibit you from competing with Dell but only requires return of your Award Payment in the event of such competition.

7. Data Privacy Consent – As a condition of the grant of this Award, you consent to the collection, use and transfer of personal data as described in this paragraph. You understand that Dell holds certain personal information about you, including your name, home address and telephone number, date of birth, social security number, salary, nationality, job title, any ownership interests or directorships held in Dell and details of all cash incentive awards awarded or cancelled (“Data”). You further understand that Dell will transfer Data among themselves as necessary for the purposes of implementation, administration and management of your participation in the Award, and that Dell may each further transfer Data to any third parties assisting Dell in the implementation, administration and management of the Award. You understand that these recipients may be located in the Asia Pacific region, the Latin American Region, the European Economic Area, Canada or elsewhere, such as the United States. You authorize them to receive, possess, use, retain and transfer such Data as may be required for the administration of the Award, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Award. You understand that you may, at any time, view such Data or require any necessary amendments to it.

8. Best-After Tax Section 280G Protection— If you are a “disqualified individual,” as defined in paragraph (c) of Code Section 280G, then, notwithstanding any other provision of this Award Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by you and Dell, except an agreement, contract, or understanding that expressly addresses Code Section 280G or Code Section 4999 (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to you (or an employee group of which you are a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for you (a “Benefit Arrangement”), any right you have in respect of payment under this Award Agreement will be reduced or eliminated: (a) to the extent that such right to payment, taking into account all other rights, payments, or benefits to or for you under all Other Agreements and all Benefit Arrangements, would cause your payment under this Award Agreement to be considered a “parachute payment” within the meaning of paragraph (b)(2) of Code Section 280G as then in effect (a “Parachute Payment”); and (b) if, as a result of receiving such Parachute Payment, the aggregate after-tax amounts you receive from Dell under all Other Agreements and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by you without causing any such payment or benefit to be considered a Parachute Payment. Dell will accomplish such reduction by first reducing or eliminating any cash payments (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based awards, then by reducing or eliminating any accelerated vesting of options or stock appreciation rights, then by reducing or eliminating any accelerated vesting of restricted stock or restricted stock units, then by reducing or eliminating any other remaining Parachute Payments.

9. Amendment — Dell reserves the right to amend or modify this Award Agreement at any time in its sole discretion; provided, however, that no such amendment or modification of the Award Agreement shall be made which adversely affects your rights under the Award Agreement without your written consent.

10. Acceptance of Terms and Conditions – This Award will not be effective and you may not receive the Award Payment until you have acknowledged and agreed to the terms and conditions set forth herein by executing this Agreement in the space provided below and returning it by faxing a signed copy of the Agreement to Sam Guess, Vice President, Global Compensation and Benefits at 512-283-9926 or scan/send (sam_guess@dell.com) no later than May 31, 2013.

Awarded subject to the terms and conditions stated above:

DELL INC.

By: /s/ Sam Guess

Sam Guess, Vice President, Global Compensation and Benefits

EX-10.3 4 d526183dex103.htm EX-10.3 EX-10.3

Exhibit 10.3

Form of Amendment to Restricted Stock Agreement

AMENDMENT TO DELL INC.

RESTRICTED STOCK AGREEMENT

THIS AMENDMENT, effective as of April 17, 2013, is to the Restricted Stock Agreement (the “Restricted Stock Agreement”) by and between Dell Inc., a Delaware corporation (the “Company”), and you in effect as of April 17, 2013, in connection with that number of shares awarded to you pursuant to the Restricted Stock Agreement (the “Shares”) of the Company’s common stock, subject to the terms and conditions therein. All terms used herein with their initial letters capitalized shall have the meanings given them in the Restricted Stock Agreement or the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan (the “Plan”) unless otherwise defined herein.

On April 17, 2013, the Leadership Development and Compensation Committee (the “Committee”) of the Board of Directors of the Company (the “Board”) determined to amend certain outstanding equity awards to provide certain benefits to holders of such awards in the event of a Change in Control (as defined below). Accordingly, the Restricted Stock Agreement is hereby amended as follows:

Change in Control — In the event of a Change in Control (as defined below), either of the Committee or the Board shall have the right, in its discretion, prior to or at the effective time of the consummation of such Change in Control, to direct that in lieu of being eligible to receive the Shares that may become vested under the Restricted Stock Agreement you instead will be eligible to receive either (a) a payment in cash equal to the value of such Shares (without interest or earnings), based on the amount payable to the Company’s stockholders in connection with the Change in Control under any agreement pursuant to which the transactions constituting the Change in Control are effected (the “Transaction Agreement”) or, in the case of a Change in Control effected without a Transaction Agreement to which the Company is a party, the fair market value of a Share at the date the Change in Control occurs (the “Substitute Cash Consideration”), or (b) shares of the capital stock of any Person successor to the Company or affiliate of such successor Person, or other consideration (the “Substitute Property Consideration” and together with the Substitute Cash Consideration, the “Substitute Consideration”), so long as such Substitute Property Consideration is, in the good faith judgment of the Committee or the Board, as applicable, of value equal to or greater than the value of such Shares. You will be entitled to payment or delivery of your Shares or Substitute Consideration if, when and to the extent you satisfy the service-based vesting conditions that apply to the Shares. Notwithstanding the foregoing, if your employment is terminated by the Company or the Company affiliate with which you are employed without Cause (as defined below) on or following the effective time of the Change in Control and prior to the 24 month anniversary of the effective time of the Change in Control, you will become 100% vested as of your date of employment termination as to all of the Shares deliverable or payable under the Restricted Stock Agreement (or if the Committee or the Board shall have determined that your rights under the Restricted Stock Agreement shall be settled in Substitute Cash Consideration or Substitute Property Consideration, such Substitute Consideration) and payment or delivery thereof shall be made within ten days following your date of employment termination.

As used herein, the term “Cause” means: (a) a violation of your obligations regarding confidentiality or the protection of sensitive, confidential or proprietary information, or trade secrets; (b) an act or omission by you resulting in your being charged with a criminal offense which constitutes a felony or involves moral turpitude or dishonesty; (c) conduct by you which constitutes poor performance, gross neglect, insubordination, willful misconduct, or a breach of the Company’s Code of Conduct or a fiduciary duty to the Company or its stockholders; or (d) the determination by the senior management of the Company that you violated state or federal law relating to the workplace environment, including, without limitation, laws relating to sexual harassment or age, sex, race, or other prohibited discrimination.

As used herein, the term “Change in Control” means the occurrence of any of the following:

(a) a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than fifty percent (50%) of the total voting power of the Voting Stock of the Company;

(b) individuals who on the date of this Amendment constitute the Board (together with any new directors whose election by such Board or whose nomination by such Board for election by the stockholders of the Company was approved by a vote of at least a majority of the members of such Board then in office who either were members of such Board on the date of this Amendment or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of such Board then in office;

(c) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, other than any such transaction in which the holders of securities that represented one hundred percent (100%) of the Voting Stock of the Company immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction;

(d) there is consummated any direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one transaction or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, to any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act); or

(e) the stockholders of the Company adopt a plan or proposal for the liquidation, winding up or dissolution of the Company.

As used herein, the term “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

As used herein, the term “Voting Stock” means, with respect to any Person, capital stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.

Best-After Tax Results 280G Protection. Section 15 of the Dell Inc. 2012 Long-Term Incentive Plan shall apply to all of your long-term incentive plan awards, including any awards under the Dell Computer Corporation 2002 Long-Term Incentive Plan or such plan as amended and restated as the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan.

Construction of Amendment; Governing Law. In all other respects, except to the extent inconsistent with this Amendment, your Restricted Stock Agreement shall remain in full force and effect in accordance with its terms immediately prior to the effectiveness of this Amendment. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, United States of America. The exclusive venue for any and all disputes arising out of or in connection with this Amendment shall be New Castle County, Delaware, United States of America, and the courts sitting exclusively in New Castle County, Delaware, United States of America shall have exclusive jurisdiction to adjudicate such disputes.

Dell Inc.

By:

EX-10.4 5 d526183dex104.htm EX-10.4 EX-10.4

Exhibit 10.4

Form of Amendment to Stock Unit Agreement – 2002 Plan

AMENDMENT TO DELL INC.

STOCK UNIT AGREEMENT

THIS AMENDMENT, effective as of April 17, 2013, is to each Stock Unit Agreement by and between Dell Inc., a Delaware corporation (the “Company”), and you in effect as of April 17, 2013 (each, the “Stock Unit Agreement”) in connection with the Units representing the right to receive that number of shares of the Company’s common stock (the “Shares”) set forth in your applicable Grant Summary, subject to the terms and conditions of the Stock Unit Agreement. All terms used herein with their initial letters capitalized shall have the meanings given them in the Stock Unit Agreement or the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan (the “Plan”), unless otherwise defined herein. For purposes of this Amendment, the Grant Summary shall be treated as a constituent part of the Stock Unit Agreement.

Change in Control — In the event of a Change in Control (as defined below), either of the Committee or the Board shall have the right, in its discretion, prior to or at the effective time of the consummation of such Change in Control, to direct that in lieu of being eligible to receive the Shares that may become vested under the Stock Unit Agreement you instead will be eligible to receive either (a) a payment in cash equal to the value of such Shares (without interest or earnings), based on the amount payable to the Company’s stockholders in connection with the Change in Control under any agreement pursuant to which the transactions constituting the Change in Control are effected (the “Transaction Agreement”) or, in the case of a Change in Control effected without a Transaction Agreement to which the Company is a party, the fair market value of a Share at the date the Change in Control occurs (the “Substitute Cash Consideration”), or (b) shares of the capital stock of any Person successor to the Company or affiliate of such successor Person, or other consideration (the “Substitute Property Consideration” and together with the Substitute Cash Consideration, the “Substitute Consideration”), so long as such Substitute Property Consideration is, in the good faith judgment of the Committee or the Board, as applicable, of value equal to or greater than the value of such Shares. You will be entitled to payment or delivery of your Shares or Substitute Consideration if, when and to the extent you satisfy the service-based vesting conditions that apply to the Shares. Notwithstanding the foregoing, if your employment is terminated by the Company or the Company affiliate with which you are employed without Cause (as defined below) on or following the effective time of the Change in Control and prior to the 24 month anniversary of the effective time of the Change in Control, you will become 100% vested as of your date of employment termination as to all of the Shares deliverable or payable under the Stock Unit Agreement (or if the Committee or the Board shall have determined that your rights under the Stock Unit Agreement shall be settled in Substitute Cash Consideration or Substitute Property Consideration, such Substitute Consideration) and payment or delivery thereof shall be made within ten days following your date of employment termination.

As used herein, the term “Change in Control” means the occurrence of any of the following:

(e) the stockholders of the Company adopt a plan or proposal for the liquidation, winding up or dissolution of the Company.

Cash Dividend Equivalents. If the Stock Unit Agreement provides for the issuance and accumulation of Dividend Equivalent payments with respect to your Units, the Company will pay you the cash Dividend Equivalent payment amount accumulated under the Stock Unit Agreement with respect to each Unit converted to a right to receive Substitute Consideration on the date, if any, on which the Company delivers to you the Substitute Consideration in accordance with this Amendment or as soon as administratively practicable thereafter; provided that in no event shall Dividend Equivalent payments be made later than the fifteenth day of the third month following the end of the calendar year with respect to which the right to the Substitute Consideration becomes vested. You will forfeit your accumulated cash Dividend Equivalent payment amounts attributable to Units converted to rights to receive Substitute Consideration which are subsequently forfeited, as of the date of such forfeiture.

Construction of Amendment. In all other respects, except to the extent inconsistent with this Amendment, your Restricted Stock Agreement shall remain in full force and effect in accordance with its terms immediately prior to the effectiveness of this Amendment. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, United States of America. The exclusive venue for any and all disputes arising out of or in connection with this Amendment shall be New Castle County, Delaware, United States of America, and the courts sitting exclusively in New Castle County, Delaware, United States of America shall have exclusive jurisdiction to adjudicate such disputes.

Dell Inc.

By:

EX-10.5 6 d526183dex105.htm EX-10.5 EX-10.5

Exhibit 10.5

Form of Amendment to Stock Unit Agreement – 2012 Plan

AMENDMENT TO DELL INC.

STOCK UNIT AGREEMENT

THIS AMENDMENT, effective as of April 17, 2013, is to each Stock Unit Agreement by and between Dell Inc., a Delaware corporation (the “Company”), and you in effect as of April 17, 2013 2013 (each, the “Stock Unit Agreement”) in connection with the Units representing the right to receive that number of shares of the Company’s common stock (the “Shares”) set forth in your applicable Grant Summary, subject to the terms and conditions of the Stock Unit Agreement. All terms used herein with their initial letters capitalized shall have the meanings given them in the Stock Unit Agreement or the Dell Inc. 2012 Long-Term Incentive Plan (the “Plan”), unless otherwise defined herein. For purposes of this Amendment, the Grant Summary shall be treated as a constituent part of the Stock Unit Agreement.

Change in Control — In the event of a Change in Control (as defined below), either of the Committee or the Board shall have the right, in its discretion, prior to or at the effective time of the consummation of such Change in Control, to direct that in lieu of being eligible to receive the Shares that may become vested under the Stock Unit Agreement you instead will be eligible to receive either (a) a payment in cash equal to the value of such Shares (without interest or earnings), based on the amount payable to the Company’s stockholders in connection with the Change in Control under any agreement pursuant to which the transactions constituting the Change in Control are effected (the “Transaction Agreement”) or, in the case of a Change in Control effected without a Transaction Agreement to which the Company is a party, the fair market value of a Share at the date the Change in Control occurs (the “Substitute Cash Consideration”), or (b) shares of the capital stock of any Person successor to the Company or affiliate of such successor Person, or other consideration (the “Substitute Property Consideration” and together with the Substitute Cash Consideration, the “Substitute Consideration”), so long as such Substitute Property Consideration is, in the good faith judgment of the Committee or the Board, as applicable, of value equal to or greater than the value of such Shares. You will be entitled to payment or delivery of your Shares or Substitute Consideration if, when and to the extent you satisfy the service-based vesting conditions that apply to the Shares. Notwithstanding the foregoing, if your employment is terminated by the Company or the Company affiliate with which you are employed without Cause (as defined below) on or following the effective time of the Change in Control and prior to the 24 month anniversary of the effective time of the Change in Control, you will become 100% vested as of your date of employment termination as to all of the Shares deliverable or payable under the Stock Unit Agreement (or if the Committee or the Board shall have determined that your rights under the Stock Unit Agreement shall be settled in Substitute Cash Consideration or Substitute Property Consideration, such Substitute Consideration) and payment or delivery thereof shall be made within ten days following your date of employment termination.

As used herein, the term “Change in Control” means the occurrence of any of the following:

(c) a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than fifty percent (50%) of the total voting power of the Voting Stock of the Company;

(d) individuals who on the date of this Amendment constitute the Board (together with any new directors whose election by such Board or whose nomination by such Board for election by the stockholders of the Company was approved by a vote of at least a majority of the members of such Board then in office who either were members of such Board on the date of this Amendment or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of such Board then in office;

(e) the stockholders of the Company adopt a plan or proposal for the liquidation, winding up or dissolution of the Company.

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11.

Dell Inc.

By:

EX-10.6 7 d526183dex106.htm EX-10.6 EX-10.6

Exhibit 10.6

Form of Amendment to Performance Based Stock Unit Agreement – 2002 Plan

AMENDMENT TO DELL INC.

PERFORMANCE BASED STOCK UNIT AGREEMENT

THIS AMENDMENT, effective as of April 17, 2013, is to each Performance Based Stock Unit Agreement by and between Dell Inc., a Delaware corporation (the “Company”), and you in effect as of April 17, 2013 (each, the “Performance Based Stock Unit Agreement”), in connection with the Units representing the right to receive that number of shares of the Company’s common stock (the “Shares”) calculated as set forth in the Performance Based Stock Unit Agreement and your applicable Grant Summary, subject to the terms and conditions of the Performance Based Stock Unit Agreement. All terms used herein with their initial letters capitalized shall have the meanings given them in the Performance Based Stock Unit Agreement or the Dell Inc. Amended and Restated 2002 Long-Term Incentive Plan (the “Plan”) unless otherwise defined herein. For purposes of this Amendment, the Grant Summary shall be treated as a constituent part of the Performance Based Stock Unit Agreement.

On April 17, 2013, the Leadership Development and Compensation Committee (the “Committee”) of the Board of Directors of the Company (the “Board”) determined to amend certain outstanding equity awards to provide certain benefits to holders of such awards in the event of a Change in Control (as defined below). Accordingly, the Performance Based Stock Unit Agreement is hereby amended as follows:

12.

Change in Control — Notwithstanding the method of determining the number of Units awarded and the vesting schedule set forth in the Grant Summary to the Performance Based Stock Unit Agreement, in the event of a Change in Control (as defined below), the performance goals described in the Performance Based Stock Unit Agreement shall be deemed attained (a) at such level as is agreed to by the Board and set forth in any agreement pursuant to which the transactions constituting the Change in Control are effected (the “Transaction Agreement”) or (b) in the event that no deemed attainment of performance goals is specified in the Transaction Agreement or the Change in Control occurs without the execution of a Transaction Agreement to which the Company is a party, at the Target set forth in the Grant Summary (the number of Shares so determined referred to hereafter as the “Shares Deemed Deliverable”). Except as provided below in this Section 1, your Units with respect to the Shares Deemed Deliverable shall continue to vest in accordance with the service-based vesting schedule in your Grant Summary, and shall be settled in Shares if, when and to the extent you become vested in the Units. If there is no service-based vesting schedule set forth in the Grant Summary, for purposes of this Section 1, the vesting date shall be the last day of the Performance Period. Notwithstanding the foregoing, in the event of a Change in Control, either of the Committee or the Board shall have the right, in its discretion, prior to or at the effective time of the consummation of such Change in Control, to direct that in lieu of being eligible to receive Shares upon settlement of your rights under the Performance Based Stock Unit Agreement you instead will be eligible to receive either (x) a payment in cash equal to the value of the Shares Deemed Deliverable (without interest or earnings), based on the amount payable to the Company’s stockholders in connection with the Change in Control under the Transaction Agreement or, in the case of a Change in Control effected without a Transaction Agreement to which the Company is a party, the fair market value of a Share at the date the Change in Control occurs (the “Substitute Cash Consideration”), or (y) shares of the capital stock of any Person successor to the Company or affiliate of such successor Person, or other consideration (the “Substitute Property Consideration” and together with the Substitute Cash Consideration, the “Substitute Consideration”), so long as such Substitute Property Consideration is, in the good faith judgment of the Committee or the Board, as applicable, of value equal to or greater than the value of such Shares Deemed Deliverable. If your Shares Deemed Deliverable are replaced by Substitute Consideration, you will be entitled to payment of such Substitute Consideration if, when and to the extent you satisfy the service-based vesting conditions that applied to the Shares Deemed Deliverable to which such Substitute Consideration is attributable (or any more favorable vesting conditions applicable to the Units as may be set forth in the applicable Transaction Agreement). If there is no service-based vesting schedule set forth in the Grant Summary, for purposes of this Section 1, the vesting date shall be the last day of the Performance Period (or such more favorable vesting date or dates as may be set forth in the applicable Transaction Agreement). Notwithstanding the foregoing, if your employment is terminated by the Company or the Company affiliate with which you are employed without Cause (as defined below) on or following the effective time of the Change in Control and prior to the 24 month anniversary of the effective time of the Change in Control, you will become 100% vested as of your date of employment termination as to all of your Shares Deemed Deliverable (or if the Committee or the Board shall have determined that your rights under the Performance Based Stock Unit Agreement shall be settled in Substitute Cash Consideration or Substitute Property Consideration, such Substitute Consideration) and payment or delivery thereof shall be made within ten days following your date of employment termination.

As used herein, the term “Change in Control” means the occurrence of any of the following:

(e) a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than fifty percent (50%) of the total voting power of the Voting Stock of the Company;

(f) individuals who on the date of this Amendment constitute the Board (together with any new directors whose election by such Board or whose nomination by such Board for election by the stockholders of the Company was approved by a vote of at least a majority of the members of such Board then in office who either were members of such Board on the date of this Amendment or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of such Board then in office;

(e) the stockholders of the Company adopt a plan or proposal for the liquidation, winding up or dissolution of the Company.

13.

Cash Dividend Equivalents. If the Performance Based Stock Unit Agreement provides for the issuance and accumulation of Dividend Equivalent payments with respect to your Units, the Company will pay you the cash Dividend Equivalent payment amount accumulated under the Performance Based Stock Unit Agreement with respect to each Unit converted to a right to receive Substitute Consideration on the date, if any, on which the Company delivers to you the Substitute Consideration in accordance with this Amendment or as soon as administratively practicable thereafter; provided that in no event shall Dividend Equivalent payments be made later than the fifteenth day of the third month following the end of the calendar year with respect to which the right to the Substitute Consideration becomes vested. You will forfeit your accumulated cash Dividend Equivalent payment amounts attributable to Units converted to rights to receive Substitute Consideration which are subsequently forfeited, as of the date of such forfeiture.

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15.

Dell Inc.

By: