EX 10.27 VMware Non-Qualified Deferred Compensation Plan Adoption Agreement


Exhibit 10.27
ADOPTION AGREEMENT




1.01    PREAMBLE 

By the execution of this Adoption Agreement the Plan Sponsor 
hereby [complete (a) or (b)]


		
	(a)
	x    adopts a new plan as of January 1, 2014 [month, day, year]




		
	(b)
	 ̈    amends and restates its existing plan as of                      [month, day, year] 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. 



Original Effective Date:                      [month, day, year]


Pre-409A Grandfathering:      ̈Yes      ̈No 






		
	1.02
	PLAN




Plan Name: VMware, Inc. Non-Qualified Deferred Compensation Plan 

Plan Year:  Year ending December 31






		
	1.03
	PLAN SPONSOR




	
		
	Name:
	VMware, Inc.

	Mailing Address:
	3401 Hillview Avenue, Palo Alto, CA 94304

	Physical Address:
	900 Arastradero Road, Building C, Palo Alto, CA  94304

	Phone # :
	650-427-4361

	EIN:
	94-3292913

	Fiscal Yr:
	Year ending December 31






Is stock of the Plan Sponsor, any Employer or any Related Employer publicly traded on an established securities market?


	
		
	x Yes
	 ̈ No







- 1 -












		
	1.04
	EMPLOYER




The following entities, in addition to the Plan Sponsor, have been authorized by the Plan Sponsor to participate in and have adopted the Plan (insert “Not Applicable” if none have been authorized):


Entity                        Publicly Traded on Est. Securities Market


	
					
	 
	 
	Yes
	 
	No

	Nicira, Inc. 
	 
	 ̈
	 
	x

	 
	 
	 ̈
	 
	 ̈

	 
	 
	 ̈
	 
	 ̈

	 
	 
	 ̈
	 
	 ̈

	 
	 
	 ̈
	 
	 ̈

	 
	 
	 ̈
	 
	 ̈






		
	1.05
	ADMINISTRATOR




The Plan Sponsor has designated the following party or parties to be responsible for the administration of the Plan:


	
		
	Name:
	Persons delegated authority by the Compensation & Corporate Governance Committee

	Address:
	     






		
	Note:
	The Administrator is the person or persons designated by the Plan Sponsor to be responsible for the administration of the Plan.  Neither Fidelity Employer Services Company nor any other Fidelity affiliate can be the Administrator.




		
	1.06
	KEY EMPLOYEE DETERMINATION DATES




The Employer has designated December 31 as the Identification Date for purposes of determining Key Employees.


In the absence of a designation, the Identification Date is December 31.


The Employer has designated April 1 as the effective date for purposes of applying the six month delay in distributions to Key Employees.


In the absence of a designation, the effective date is the first day of the fourth month following the Identification Date.



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	2.01
	PARTICIPATION




(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.



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	3.01
	COMPENSATION




For purposes of determining Participant contributions under Article 4 and Employer contributions under Article 5, Compensation shall be defined in the following manner [complete (a) or (b) and select (c) and/or (d), if applicable]:


	
			
	(a)
	x
	Compensation is defined as:

	 
	 
	Base Salary, Semi-Annual Bonus 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.






		
	3.02
	BONUSES




Compensation, as defined in Section 3.01 of the Adoption Agreement, includes the following type of bonuses that will be the subject of a separate deferral election:


	
						
	Type
	Will be treated as Performance
Based Compensation

	 
	 

	 
	 
	Yes
	 
	No
	 

	Semi-Annual Bonus
	 
	 ̈
	 
	x
	 

	     
	 
	 ̈
	 
	 ̈
	 

	     
	 
	 ̈
	 
	 ̈
	 

	     
	 
	 ̈
	 
	 ̈
	 

	     
	 
	 ̈
	 
	 ̈
	 






	
		
	 ̈
	Not Applicable.







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	4.01
	PARTICIPANT CONTRIBUTIONS




If Participant contributions are permitted, complete (a), (b), and (c).  Otherwise 
complete (d).


		
	(a)
	Amount of Deferrals




A Participant may elect within the period specified in Section 4.01(b) of the Adoption Agreement to defer the following amounts of remuneration.  For each type of remuneration listed, complete “dollar amount” and / or “percentage amount”.


		
	(i)
	Compensation Other than Bonuses [do not complete if you complete (iii)]


        
	
						
	Type of Remuneration
	Dollar Amount
	% Amount
	Increment

	Min
	Max
	Min
	Max

	(a)    Base Salary
	 
	 
	5%
	75%
	1%

	(b)    Commissions
	 
	 
	5%
	100%
	1%

	(c)    
	 
	 
	 
	 
	 






Note:  The increment is required to determine the permissible deferral amounts.  For example, a minimum of 0% and maximum of 20% with a 5% increment would allow an individual to defer 0%, 5%, 10%, 15% or 20%.


		
	(ii)
	Bonuses [do not complete if you complete (iii)]




	
						
	Type of Bonus
	Dollar Amount
	% Amount
	Increment

	Min
	Max
	Min
	Max

	(a)   Semi-Annual Bonus
	 
	 
	5%
	100%
	1%

	(b)   
	 
	 
	 
	 
	 

	(c)   
	 
	 
	 
	 
	 






		
	(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:
	 
	 
	 
	 
	 









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	(b)
	Election Period




		
	(i)
	Performance Based Compensation




A special election period 


	
					
	 ̈
	Does
	 
	x
	Does Not






apply to each eligible type of performance based compensation referenced in Section 3.02 of the Adoption Agreement.


The special election period, if applicable, will be determined by the Employer.


		
	(ii)
	Newly Eligible Participants




An employee who is classified or designated as an Eligible Employee during a Plan Year 


	
					
	x
	May
	 
	 ̈
	May Not






elect to defer Compensation earned during the remainder of the Plan Year by completing a deferral agreement within the 30 day period beginning on the date he is eligible to participate in the Plan.


		
	(c)
	Revocation of Deferral Agreement




A Participant’s deferral agreement


	
		
	x
	Will

	 ̈
	Will Not






be cancelled for the remainder of any Plan Year during which he receives a hardship distribution of elective deferrals from a qualified cash or deferred arrangement maintained by the Employer to the extent necessary to satisfy the requirements of Reg. Sec. 1.401(k)-1(d)(3).  If cancellation occurs, the Participant may resume participation in accordance with Article 4 of the Plan.


		
	(d)
	No Participant Contributions




 ̈    Participant contributions are not permitted under the Plan.



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	5.01
	EMPLOYER CONTRIBUTIONS




If Employer contributions are permitted, complete (a) and/or (b).  Otherwise 
complete (c).


		
	(a)
	Matching Contributions




		
	(i)
	Amount




For each Plan Year, the Employer shall make a Matching Contribution on behalf of each Participant who defers Compensation for the Plan Year and satisfies the requirements of Section 5.01(a)(ii) of the Adoption Agreement equal to [complete the ones that are applicable]:


		
	(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      % of Compensation.




		
	(D)
	 ̈    Other:    


                         
                         


		
	(E)
	 ̈    Not Applicable [Proceed to Section 5.01(b)] 



		
	(ii)
	Eligibility for Matching Contribution




A Participant who defers Compensation for the Plan Year shall receive an allocation of Matching Contributions determined in accordance with Section 5.01(a)(i) provided he satisfies the following requirements [complete the ones that are applicable]:


	
			
	(A)     ̈
	Describe requirements:
	 

	 
	                    
	 

	 
	                    
	 

	 
	 
	 

	(B)    x
	Is selected by the Employer in its sole discretion to receive an allocation of Matching Contributions
	 

	 
	 
	 

	(C)     ̈
	No requirements
	 







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	(iii)
	 Time of Allocation




Matching Contributions, if made, shall be treated as allocated [select one]:


	
		
	(A)     ̈
	As of the last day of the Plan Year

	 
	 

	(B)    x
	At such times as the Employer shall determine in it 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:
                    

	 
	                    






		
	(b)
	Other Contributions


    
		
	(i)
	Amount




The Employer shall make a contribution on behalf of each Participant who satisfies the requirements of Section 5.01(b)(ii) equal to [complete the ones that are applicable]:


	
		
	(A)     ̈
	An amount equal to       [insert number] % 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]

	 
	 







- 8 -








		
	(ii)
	 Eligibility for Other Contributions




A Participant shall receive an allocation of other Employer contributions determined in accordance with Section 5.01(b)(i) for the Plan Year if he satisfies the following requirements [complete the one that is applicable]:




	
		
	(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




Employer contributions, if made, shall be treated as allocated [select one]:


	
		
	(A)     ̈
	As of the last day of the Plan Year

	 
	 

	(B)    x
	At such time or times as the Employer shall determine in its sole discretion

	 
	 

	(C)     ̈


	Other:
                    

	 
	                    

	 
	                    






		
	(c)
	No Employer Contributions




 ̈    Employer contributions are not permitted under the Plan.



- 9 -






		
	6.01
	DISTRIBUTIONS




The timing and form of payment of distributions made from the Participant’s vested Account shall be made in accordance with the elections made in this Section 6.01 of the Adoption Agreement except when Section 9.6 of the Plan requires a six month delay for certain distributions to Key Employees of publicly traded companies.  


		
	(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)    ̈
	Semi-Annually on specified month and day (January 1 or July 1) [insert month and day]

	 
	(D)   x
	Calendar quarter on specified month and day [1st month of quarter (insert 1,2 or 3);  1st business_ day (insert day)]






	
			
	(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 [insert number of 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.









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	(b)
	Distribution Events




Participants may elect the following payment events and the associated form or forms of payment. If Separation from Service is selected below, a Participant must elect Separation from Service as a payment event. If multiple events are selected, the earliest to occur will trigger payment. For installments, insert the range of available periods (e.g., 5-15) or insert the periods available (e.g., 5,7,9).


	
					
	



	 
	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 [not to exceed       months]
	     
	      years

	 
	 

	 
	 

	(ix)  ̈
	Disability
	     
	      years

	 
	 

	(x)  ̈
	Death
	     
	      years

	 
	 

	(xi)  ̈
	Change in Control
	     
	      years






The minimum deferral period for Specified Date or Specified Age event shall be three (3) years. 
 
Installments may be paid [select each that applies] 

	
		
	 ̈
	Monthly

	 ̈
	Quarterly

	x
	Annually






		
	(c)
	Specified Date and Specified Age elections may not extend beyond age Not Applicable [insert age or “Not Applicable” if no maximum age applies]. 




- 11 -








		
	(d)
	Payment Election Override 
 
Payment of the remaining vested balance of the Participant’s Account will automatically occur at the time specified in Section 6.01(a) of the Adoption Agreement in the form indicated upon the earliest to occur of the following events [check each event that applies and for each event include only a single form of payment]:  



	
						
	 
	EVENTS
	FORM OF PAYMENT

	 ̈
	Separation from Service
	 
	Lump sum
	 
	Installments

	 ̈
	Separation from 
Service before Retirement
	 
	Lump sum
	 
	Installments

	x
	Death
	x
	Lump sum
	 
	Installments

	x
	Disability
	x
	Lump sum
	 
	Installments

	 ̈
	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.

















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	(g)
	Distribution Election Change 
 
A Participant




	
		
	x
	Shall

	 ̈
	Shall Not






be permitted to modify a scheduled distribution date and/or payment option in accordance with Section 9.2 of the Plan.


A Participant shall generally be permitted to elect such modification two (2) number of times.


Administratively, allowable distribution events will be modified to reflect all options necessary to fulfill the distribution change election provision.




		
	(h)
	Frequency of Elections




The Plan Sponsor


	
		
	x
	Has

	 ̈
	Has Not






Elected to permit annual elections of a time and form of payment for amounts deferred under the Plan.  If a single election of a time and/or form of payment is required, the Participant will make such election at the time he first completes a deferral agreement which, in all cases, will be no later than the time required by Reg. Sec. 1.409A-2.





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	7.01
	VESTING




		
	(a)
	Matching Contributions 
 
The Participant’s vested interest in the amount credited to his Account attributable to Matching Contributions shall be based on the following schedule:




	
								
	 ̈
	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 
 
The Participant’s vested interest in the amount credited to his Account attributable to Employer contributions other than Matching Contributions shall be based on the following schedule:





- 14 -






	
						
	 ̈
	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.
	 
	 







- 15 -






		
	(c)
	Acceleration of Vesting 



A Participant’s vested interest in his Account will automatically be 100% upon the occurrence of the following events: [select the ones that are applicable]:


	
		
	(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






include service performed for the Related Employer. 

		
	(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)     ̈
	The Participant’s Years of Service credited under [insert name of plan]                 
                     

	 
	 

	(D)    x
	Other:  As determined by the Administrator

	 
	                          

	 
	                          





- 16 -








		
	(iv)
	 ̈ Not applicable.





- 17 -






		
	8.01
	UNFORESEEABLE EMERGENCY




(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]






be allowed.


		
	(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






be cancelled.  If cancellation occurs, the Participant may resume participation in accordance with Article 4 of the Plan.





- 18 -






		
	9.01
	INVESTMENT DECISIONS




Investment decisions regarding the hypothetical amounts credited to a Participant’s Account shall be made by [select one]:


	
		
	(a)   x


	The Participant or his Beneficiary

	(b)    ̈
	The Employer







- 19 -






		
	10.01
	TRUST 




The Employer [select one]:


	
		
	x
	Does

	 ̈
	Does Not






intend to establish a rabbi trust as provided in Article 11 of the Plan.

- 20 -






		
	11.01
	TERMINATION UPON CHANGE IN CONTROL




The Plan Sponsor


	
		
	x
	Reserves

	 ̈
	Does Not Reserve






the right to terminate the Plan and distribute all vested amounts credited to Participant Accounts upon a Change in Control as described in Section 9.7.


		
	11.02
	AUTOMATIC  DISTRIBUTION UPON CHANGE IN CONTROL




Distribution of the remaining vested balance of each Participant’s Account


	
		
	 ̈
	Shall

	x
	Shall Not






automatically be paid as a lump sum payment upon the occurrence of a Change in     Control as provided in Section 9.7.


		
	11.03
	CHANGE IN CONTROL




A Change in Control for Plan purposes includes the following [select each definition that applies]:


		
	(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.







- 21 -






		
	12.01
	GOVERNING STATE LAW




The laws of California shall apply in the administration of the Plan to the extent not preempted by ERISA.



- 22 -




EXECUTION PAGE






The Plan Sponsor has caused this Adoption Agreement to be executed this 23rd day of December, 2013.




	
		
	PLAN SPONSOR:
	VMware, Inc.

	By:
	Denise Devlin

	Title:
	VP Total Rewards













- 23 -












APPENDIX A 
SPECIAL EFFECTIVE DATES
Not Applicable







- 24 -