EX-10.4






Exhibit 10.4




August 12, 2008




Mr. Scott McGregor

President and Chief Executive Officer

Broadcom Corporation

5300 California Avenue

Irvine, CA 92617



Dear Scott:




     On October 25, 2004, you entered into an employment agreement with Broadcom Corporation
(“Broadcom”) in the form of a detailed offer letter (the “Employment Agreement”). The Employment
Agreement was subsequently amended on December 16, 2005 to revise the provisions of the agreement
relating to the stock-based awards that were to be made to you on the first anniversary of your
start date. Appendix II to your Employment Agreement sets forth the various severance benefits to
which you may become entitled should your employment with Broadcom terminate under certain defined
circumstances (the “Severance Program”).



     The purpose of this new letter agreement (the “New Agreement”) is to revise the provisions of
Appendix II governing the Severance Program to (i) bring those terms and provisions into compliance
with the applicable requirements of the final Treasury Regulations under Section 409A (“Section
409A”) of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) effect certain
substantive changes authorized by the Compensation Committee of the Broadcom Board of Directors
(the “Compensation Committee”) to become effective upon your execution of this New Agreement.



     Accordingly, Appendix II as currently in effect under your Employment Agreement is hereby
superseded by new Appendix II set forth below and shall cease to have any force or effect upon your
execution of this New Agreement. All the other terms and provisions of your Employment Agreement,
as modified by the December 16, 2005 amendment, shall remain in full force and effect and shall not
in any way be revised, modified or amended by any provision of this New Agreement.



REVISED APPENDIX II — SEVERANCE BENEFIT PROGRAM




     This revised Appendix II sets forth the terms and conditions of the revised Severance Program
that is to be effect under your Employment Agreement as modified by this New Agreement and is to be
construed in conjunction with, and is made a part of, that Employment Agreement effective upon your
execution of this New Agreement. Capitalized terms not defined in this revised Appendix II shall
have the meanings defined elsewhere in the Employment Agreement.



 









 





     1. Severance Benefits upon Certain Terminations. Should your employment with Broadcom
be terminated by you in a Notice of Termination specifying Good Reason, or should such employment
be terminated by Broadcom in a Notice of Termination specifying no reason or a reason other than
(i) Cause or (ii) your Disability, and in either instance your employment is not otherwise
terminated automatically as a result of your death, then Broadcom shall make the payments and
provide the benefits described below, provided that with respect to certain of those benefits,
there is compliance with each of the following requirements (the “Severance Benefit Requirements”):



          (i) you deliver the general release required under Section 2 of this Appendix II (the
“Required Release”) within the applicable time period following your Date of Termination,




          (ii) the Required Release becomes effective in accordance with applicable law following the
expiration of any applicable revocation period,




          (iii) you comply with each of the restrictive covenants set forth in Section 4 of this
Appendix II, and




          (iv) you are and continue to remain in material compliance with your obligations to Broadcom
under your Confidentiality and Invention Assignment Agreement.




     The payments and benefits to which you will become entitled if all the Severance Benefits
Requirements are satisfied are as follows:




     (a) Cash Severance. Broadcom will pay you cash severance (“Cash Severance”) in
an amount equal to three (3) times the sum of (A) your annual rate of base salary (using
your then current rate or, if you terminate your employment for Good Reason pursuant to
Subsection 9(b) of this Appendix II due to an excessive reduction in your base salary, then
your rate of base salary immediately before such reduction) and (B) the average of your
actual annual bonuses for the three calendar years (or such fewer number of calendar years
of employment with Broadcom) immediately preceding the calendar year in which such
termination of employment occurs. Such Cash Severance shall be payable over a thirty-six
(36)-month period in successive equal bi-weekly or semi-monthly installments in accordance
with the payment schedule in effect for your base salary on your Date of Termination.
Subject to the deferral provisions of Section 3 below, the Cash Severance payments will
begin on the first regular pay day, within the sixty (60)-day period measured from the date
of your Separation from Service, on which your Required Release is effective following the
expiration of all applicable revocation periods, but in no event shall such initial payment
be made later than the last business day of such sixty (60)-day period on which the Required
Release is so effective. The installment payments shall cease once you have received the
full amount of your Cash Severance. The installment payments shall be treated as a series of
separate payments for purposes of Section 409A. However, the amount of Cash Severance to
which you may
be entitled pursuant to the foregoing provisions of this Subsection 1(a) shall be
subject to reduction in accordance with Section 4 in the event you breach your restrictive
covenants under Section 4.



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     (b) Options and Other Equity Awards. Notwithstanding any less favorable terms
of any stock option or other equity award agreement or plan, any options to purchase shares
of Broadcom’s common stock or any restricted stock units or other equity awards granted to
you by Broadcom, whether before or after the date of this New Agreement, that are
outstanding on your Date of Termination but not otherwise fully vested shall be subject to
accelerated vesting in accordance with the following provisions:




          (i) On the date your timely executed and delivered Required Release becomes effective
following the expiration of any applicable revocation period (the “Release Condition”), you
will receive twenty-four (24) months of service vesting credit under each of your
outstanding stock options, restricted stock units and other equity awards.




          (ii) The portion of each of your outstanding stock options, restricted stock units and
other equity awards that remains unvested after your satisfaction of the Release Condition
will vest in a series of twenty-four (24) successive equal monthly installments over the
twenty-four (24)-month period measured from your Date of Termination (the “Additional
Monthly Vesting”), provided that during each successive month within that twenty-four
(24)-month period (x) you must comply with all of your obligations under your
Confidentiality and Invention Assignment Agreement with Broadcom that survive the
termination of your employment with Broadcom and (y) you must comply with the restrictive
covenants set forth in Section 4. In the event that you violate the Confidentiality and
Invention Assignment Agreement or engage in any of the activities precluded by the
restrictive covenants set forth in Section 4, you shall not be entitled to any Additional
Monthly Vesting for and after the month in which such violation or activity (as the case may
be) occurs.




     In addition, the period for exercising each option that accelerates in accordance with
subparagraph (i) or (ii) above shall be extended from the limited post-termination period
otherwise provided in the applicable stock option agreement until the earlier of (A) the end
of the twenty-four (24)-month period measured from your Date of Termination or (if later)
the end of the one-month period measured from each installment vesting date of that option
in accordance herewith or (B) the applicable expiration date of the maximum ten (10)-year or
shorter option term. Upon your satisfaction of the Release Condition, the limited
post-termination exercise period for any other options granted to you by Broadcom and
outstanding on your Date of Termination shall also be extended in the same manner and to the
same extent as your accelerated options




     The shares of Broadcom Class A common stock underlying any restricted stock unit award
that vests on an accelerated or Additional Monthly Vesting basis in accordance with this
Subsection 1(b) shall be issued as follows: The shares subject to that award that vest upon
the satisfaction of the Release Condition shall be issued within the sixty (60) day period
measured from the date of your Separation from Service, but in no event later than the next
regularly-scheduled share issuance date for that restricted stock



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unit award (currently, the 5th day of February, May, August and November each year)
following the date of your Separation from Service on which your Required Release is
effective, unless subject to further deferral pursuant to the provisions of Section 3 below
the (“Initial Issuance Date”), and each remaining share subject to such restricted stock
unit award shall be issued on the next regularly-scheduled share issuance date for that
restricted stock unit award (currently, the 5th day of February, May, August and November
each year) following the prescribed vesting date for that share in accordance with this
Subsection 1(b), but in no event earlier than the Initial Issuance Date.




     (c) Lump Sum Benefit Payments. Provided you satisfy the Release Condition, the
following special payments shall be made to you to allow you to obtain health care, life
insurance and disability insurance coverage following your Date of Termination:




          (i) Provided you and your spouse and eligible dependents elect to continue medical care
coverage under Broadcom’s group health care plans pursuant to the applicable COBRA
provisions, Broadcom will make a lump sum cash payment (the “Lump Sum Health Care Payment”)
to you in an amount equal to thirty-six (36) times the amount by which (i) the monthly cost
payable by you, as measured as of your Date of Termination, to obtain COBRA coverage for
yourself, your spouse and eligible dependents under Broadcom’s employee group health plan at
the level in effect for each of you on such Date of Termination exceeds (ii) the monthly
amount payable at such time by a similarly-situated executive whose employment with Broadcom
has not terminated to obtain group health care coverage at the same level. Broadcom shall
pay the Lump Sum Health Care Payment to you on the earlier of (A) the first business day of
the first calendar month, within the sixty (60)-day period measured from the date of your
Separation from Service, that is coincident with or next following the date on which your
Required Release is effective following the expiration of all applicable revocation periods
or (B) the last business day of such sixty (60)-day period on which such Required Release is
so effective. Notwithstanding the foregoing, the Lump Sum Health Care Payment shall be
subject to the deferred payment provisions of Section 3 below, to the extent such payment
exceeds the applicable dollar amount under section 402(g)(1) of the Code for the year in
which your Separation from Service occurs.




          (ii) You shall also be entitled to an additional lump sum cash payment (the “Lump Sum
Insurance Benefit Payment”) from Broadcom in an amount equal to twelve (12) times the amount
by which (i) the monthly cost payable by you, as measured as of your Date of Termination, to
obtain post-employment continued coverage under Broadcom’s employee group term life
insurance and disability insurance plans at the level in effect for you on such Date of
Termination exceeds (ii) the monthly amount payable at that time by a similarly-situated
executive whose employment with Broadcom has not terminated to obtain similar coverage.
Broadcom shall pay the Lump Sum Insurance Benefit Payment to you concurrently with the
payment of the Lump Sum Health Care Benefit, provided, however, that the Lump Sum Insurance
Benefit Payment shall be subject to the deferred payment provisions of Section 3 below, to
the extent such payment, when added to the Lump Sum Health Care Payment, exceeds the
applicable
dollar amount under section 402(g)(1) of the Code for the year in which your Separation
from Service occurs.



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          Should your Date of Termination occur prior to January 1, 2009, then in lieu of the
lump sum payments provided under this Subsection 1(c), you will receive the monthly payments
provided under the corresponding benefit continuation provisions of the original Appendix II
to your Employment Agreement, provided you satisfy the Release Condition.




     (d) Additional Payments. Broadcom shall, to the extent applicable, pay you the
following amounts, provided you satisfy the Release Condition:




          (i) any cash bonus that was not vested on your Date of Termination because a
requirement of continued employment had not yet been satisfied by you, but with respect to
which the applicable performance goal or goals had been fully attained as of your Date of
Termination (for the avoidance of doubt, a bonus shall be payable under this clause (i) only
to the extent that any performance criteria with respect to such bonus had been satisfied
during the applicable performance period), and




          (ii) provided you were employed for the entire plan year immediately preceding your
Date of Termination and discretionary bonuses are payable for that plan year to
similarly-situated Broadcom executives whose employment has not terminated, (ii) any
discretionary bonus the Compensation Committee may decide to award you for that plan year on
the basis of your individual performance and contributions during that plan year.




     Any bonus payments to which you become entitled under clause (i) of this Subsection
1(d) shall be paid to you at the same time you are paid your first Cash Severance
installment under Subsection 1(a), after taking into account any required deferral under
Section 3, and any bonus payment to which you may become entitled under clause (ii) of this
Subsection 1(d) shall also be paid to you at the same time or (if later) the tenth business
day following the date the Compensation Committee awards you such discretionary bonus.




     The amounts set forth Subsections 1(e) and (f) below shall be referred to collectively
as the “Accrued Obligations” and shall not be subject to your delivery of the Required
Release or your compliance with the restrictive covenants set forth in Section 4.




     (e) Accrued Salary, Vacation Pay, Expenses, Earned Bonuses and Deferred
Compensation. Broadcom shall, upon your Date of Termination, pay you a lump sum amount
equal to the sum of (i) any earned but unpaid base salary through the Date of Termination at
the rate in effect during such period, (ii) your accrued vacation pay, (iii) any
unreimbursed business expenses incurred by you and (iv) any cash bonus that had been fully
earned and vested (i.e., for which the applicable performance period and any service
requirements for vesting had been fully completed) on or before the Date of Termination, but
which had not been paid as of the Date of Termination (for the avoidance of doubt, any such
bonus shall be payable only to the extent the applicable



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performance criteria had been satisfied during the applicable performance period).
However, any vested amounts deferred by you under one or more Broadcom non-qualified
deferred compensation programs subject to Section 409A that remain unpaid on your Date of
Termination shall be paid at such time and in such manner as set forth in each applicable
plan or agreement governing the payment of those deferred amounts, subject, however, to the
deferred payment provisions of Section 3 below.




     (f) Other Benefits. To the extent not theretofore paid or provided, Broadcom
shall timely pay or provide to you any other amounts or benefits required to be paid or
provided, or that you are eligible to receive, under any plan, program, policy, practice,
contract or agreement of Broadcom and its affiliated companies, including (without
limitation) any benefits payable to you under a plan, policy, practice, contract, agreement,
etc., referred to in Section 15 of this Appendix II (all such other amounts and benefits
being hereinafter referred to as “Other Benefits”), in accordance with the terms of such
plan, program, policy, practice, contract or agreement. However, the payment of such Other
Benefits shall be subject to any applicable deferral period under Section 3 below to the
extent those benefits constitute items of deferred compensation subject to Section 409A.




          Notwithstanding the foregoing provisions of this Subsection 1(f), in no event shall you
be allowed to participate in the Broadcom Corporation 1998 Employee Stock Purchase Plan, as
amended and restated, or the 401(k) Employee Savings Plan following your Date of Termination
or to receive any substitute benefits hereunder in replacement of those particular benefits,
but you shall be entitled to the full value of any benefits accrued under such plans prior
to your Date of Termination.



     2 Required Release. You will not become eligible to receive any of the payments and
benefits provided under Subsections 1(a), (b), (c) and (d) and Section 5 of this revised Appendix
II unless you execute and deliver to Broadcom, within twenty one (21) days after your Date of
Termination (or within forty-five (45) days after such Date of Termination, to the extent such
longer period is required under applicable law), a general release in a form acceptable to Broadcom
(the “Required Release”) that (i) releases Broadcom and its subsidiaries, officers, directors,
employees, and agents from all claims you may have relating to your employment with Broadcom and
the termination of that employment, other than claims relating to any benefits to which you become
entitled under the Severance Program, and (ii) becomes effective in accordance with applicable law
upon the expiration of any applicable revocation period.



     3. Delay in Payment for Certain Specified Employees. The following special provisions
shall govern the commencement date of certain payments and benefits to which you may become
entitled under the Severance Program:




          (a). Notwithstanding any provision in this New Agreement to the contrary other than
Subsection 3(b) below, no payment or benefit under the Severance Program that constitutes an
item of deferred compensation under Section 409A and becomes payable in connection with your
termination of employment will be made to you prior to the earlier of (i) the first day of
the seventh (7th) month following the date of



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your Separation from Service or (ii) the date of your death, if you are deemed to be a
Specified Employee at the time of such Separation from Service and such delayed commencement
is otherwise required to avoid a prohibited distribution under Section 409A(a)(2) of the
Code. Any cash amounts to be so deferred shall immediately upon your Separation from Service
be deposited by Broadcom into a grantor trust that satisfies the requirements of Revenue
Procedure 92-64 and that will accordingly serve as the funding source for Broadcom to
satisfy its obligations to you with respect to the heldback amounts upon the expiration of
the required deferral period, provided, however, that the funds deposited into such trust
shall at all times remain subject to the claims of Broadcom’s creditors and shall be
maintained and located at all times in the United States. Upon the expiration of the
applicable deferral period, all payments and benefits deferred pursuant to this Subsection
3(a) (whether they would have otherwise been payable in a single sum or in installments in
the absence of such deferral) shall be paid or provided to you in a lump sum, either from
the grantor trust or by Broadcom directly, on the first day of the seventh (7th) month after
the date of your Separation from Service or, if earlier, the first day of the month
immediately following the date Broadcom receives proof of your death. Any remaining payments
due under the Severance Program will be paid in accordance with the normal payment dates
specified herein.




          (b). The portion of your Lump Sum Health Care Payment that is not in excess of the
applicable dollar amount in effect under Section 402(g)(1)(B) of the Code for the calendar
year in which your Separation form Service occurs shall not be subject to the Subsection
3(a) deferred payment requirement. If the Lump Sum Health Care Benefit does not exceed such
dollar amount, then the deferred payment provisions of Subsection 3(a) shall not be
applicable to the Lump Sum Insurance Benefit Payment to the extent the dollar amount of that
payment, when added to the Lump Sum Health Care Payment, does not exceed the applicable
dollar amount in effect under Section 402(g)(1)(B) of the Code for the calendar year in
which your Separation form Service occurs.




          (c). It is the intent of the parties that the provisions of this New Agreement comply
with all applicable requirements of Section 409A. Accordingly, to the extent there is any
ambiguity as to whether one or more provisions of this New Agreement would otherwise
contravene the applicable requirements or limitations of Section 409A, then those provisions
shall be interpreted and applied in a manner that does not result in a violation of the
applicable requirements or limitations of Section 409A and the applicable Treasury
Regulations thereunder.



     4. Restrictive Covenants. You hereby acknowledge that your right and entitlement to
the severance benefits specified in Subsections 1(a) and, (b) and Section 5 of this revised
Appendix II are subject to your compliance with each of the following covenants during the three
(3)-year period measured from your Date of Termination, and those enumerated severance benefits
will immediately cease or be subject to reduction in accordance herewith should you breach any of
the following covenants:



          (a) You shall not directly or indirectly encourage or solicit any employee, consultant or
independent contractor to leave the employ or service of Broadcom (or any affiliated company) for
any reason or interfere in any other manner with any employment or
service relationships at the time existing between Broadcom (or any affiliated company) and its
employees, consultants and independent contractors.




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          (b) You shall not directly or indirectly solicit or otherwise induce any vendor, supplier,
licensor, licensee or other business affiliate of Broadcom (or any affiliated company) to terminate
its existing business relationship with Broadcom (or affiliated company) or interfere in any other
manner with any existing business relationship between Broadcom (or any affiliated company) and any
such vendor, supplier, licensor, licensee or other business affiliate.




          (c) You shall not, whether on your own or as an employee, consultant, partner, principal,
agent, representative, equity holder or in any other capacity, directly or indirectly render,
anywhere in the United States, services of any kind or provide any advice or assistance to any
business, enterprise or other entity that is engaged in any line of business that competes with one
or more of the lines of business that were conducted by Broadcom during the Term of your employment
or that are first conducted after your Date of Termination but which you were aware were under
serious consideration by Broadcom prior to your Date of Termination, except that you make a passive
investment representing an interest of less than one percent (1%) of an outstanding class of
publicly-traded securities of any corporation or other enterprise.




          (d) You shall not, directly or indirectly, make any adverse, derogatory or disparaging
statements, whether orally or in writing, to any person or entity regarding (i) Broadcom, any
members of the Board of Directors or any officers, members of management or shareholders of
Broadcom or (ii) any practices, procedures or business operations of Broadcom (or any affiliated
company).




          Should you breach any of the restrictive covenants set forth in this Section 4, then you shall
immediately cease to be entitled to any Gross-Up Payment under Section 5 below or any Cash
Severance Payments pursuant to Subsection 1(a) in excess of the greater of (i) one (1) times the
sum of (A) your annual rate of base salary (using your then current rate or, if you terminate your
employment for Good Reason pursuant to Subsection 9(b) of this Appendix II due to an excessive
reduction in your base salary, then your rate of base salary immediately before such reduction) and
(B) the average of your actual annual bonuses for the three calendar years (or such fewer number of
calendar years of employment with Broadcom) immediately preceding the calendar year in which such
termination of employment occurs (which minimum amount represents partial consideration for your
satisfaction of the Release Consideration) or (ii) the actual Cash Severance Payments you have
received through the date of such breach. In addition, all Additional Monthly Vesting of any stock
options, restricted stock units, other equity awards or unvested share issuances outstanding at the
time of such breach shall cease as of the month in which such breach occurs, and no further
Additional Monthly Vesting shall occur thereafter. Broadcom shall also be entitled to recover at
law any monetary damages for any additional economic loss caused by your breach and may, to the
maximum extent allowable under applicable law, seek equitable relief in the form of an injunction
precluding you from continuing such breach.




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     5. Tax Gross-Up Payment.



          A. In the event that (i) any payments or benefits to which you become entitled in accordance
with the provisions of the New Agreement and this revised Appendix II or any other agreement with
Broadcom constitute a parachute payment under Section 280G of the Code (collectively, the
“Parachute Payment”) subject to the excise tax imposed under Section 4999 of the Code or any
interest or penalties related to such excise tax (with such excise tax and related interest and
penalties to be collectively referred to as the “Excise Tax”) and (ii) it is determined by an
independent registered public accounting firm selected by Broadcom from among the largest four
accounting firms in the United States (the “Accounting Firm”) that the Present Value (measured as
of effective date of the Change in Control) of your aggregate Parachute Payment exceeds one hundred
twenty percent (120%) of your Permissible Parachute Amount, then you will be entitled to receive
from Broadcom an additional payment (the “Gross-Up Payment”) in a dollar amount such that after
your payment of all taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax imposed upon the Gross-Up Payment, you retain a net amount equal to the
Excise Tax imposed upon your aggregate Parachute Payment. Notwithstanding the foregoing, you shall
not be entitled to any Gross-Up Payment unless there is compliance with each of the Severance
Benefit Requirements set forth above.




          For purposes of determining your eligibility for such Gross-Up Payment, the following
definitions will be in effect:




          “Present Value” means the value, determined as of the date of the Change in Control, of each
payment or benefit in the nature of compensation to which you become entitled in connection with
the Change in Control or your subsequent termination of employment with Broadcom that constitutes a
Parachute Payment. The Present Value of each such payment or benefit shall be determined in
accordance with the provisions of Code Section 280G(d)(4), utilizing a discount rate equal to one
hundred twenty percent (120%) of the applicable Federal rate in effect at the time of such
determination, compounded semi-annually to the effective date of the Change in Control.




          “Permissible Parachute Amount” means a dollar amount equal to the 2.99 times the average of
your W-2 wages from Broadcom for the five (5) calendar years (or such fewer number of calendar
years) completed immediately prior to the calendar year in which the Change in Control is effected.




          Should the aggregate Present Value (measured as of the Change in Control) of your aggregate
Parachute Payment not exceed one hundred twenty percent (120%) of your Permissible Parachute
Amount, then no Gross-Up Payment will be made to you, and your payments and benefits under this New
Agreement shall instead be subject to reduction in accordance with the benefit limitation
provisions of Section 6.




          B. All determinations as to whether any of the payments or benefits to which you become
entitled in accordance with the provisions of the New Agreement and this revised
Appendix II or any other agreement with Broadcom constitute a Parachute Payment, whether a Gross-Up
Payment is required with respect to any Parachute Payment, the amount of such Gross-


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Up Payment, and any other amounts relevant to the calculation of such Gross-Up Payment, will be
made by the Accounting Firm. Such Accounting Firm will make the applicable determinations (the
“Gross-Up Determination”), together with detailed supporting calculations regarding the amount of
the Excise Tax, any required Gross-Up Payment and any other relevant matter, within thirty (30)
days after the date of your Separation from Service. In making the Gross-Up Determination, the
Accounting Firm shall make a reasonable determination of the value of the restrictive covenants to
which you will be subject under Section 4, and the amount of your potential Parachute Payment shall
accordingly be reduced by the value of those restrictive covenants to the extent consistent with
Code Section 280G and the Treasury Regulations thereunder. The Gross-Up Determination made by the
Accounting Firm will be binding upon both you and Broadcom. The Gross-Up Payment (if any)
determined on the basis of the Gross-Up Determination shall be paid to you or on your behalf within
ten (10) business days after the completion of such Determination or (if later) at the time the
related Excise Tax is remitted to the appropriate tax authorities.




          C. In the event that your actual Excise Tax liability is determined by a Final Determination
to be greater than the Excise Tax liability taken into account for purposes of any Gross-Up Payment
or Payments initially made to you pursuant to the provisions of Subsection 5.B, then within thirty
(30) days following that Final Determination, you shall notify Broadcom of such determination, and
the Accounting Firm shall, within thirty (30) days thereafter, make a new Excise Tax calculation
based upon that Final Determination and provide both you and Broadcom with the supporting
calculations for any supplemental Gross-Up Payment attributable to that excess Excise Tax
liability. Broadcom shall make the supplemental Gross-Up payment to you within ten (10) business
days following the completion of the applicable calculations or (if later) at the time such excess
tax liability is remitted to the appropriate tax authorities. In the event that your actual Excise
Tax liability is determined by a Final Determination to be less than the Excise Tax liability taken
into account for purposes of any Gross-Up Payment initially made to you pursuant to the provisions
of Subsection 5.B, then you shall refund to Broadcom, promptly upon receipt (but in no event later
than ten (10) business days after such receipt), any federal or state tax refund attributable to
the Excise Tax overpayment. For purposes of this Subsection 5.C, a “Final Determination” means an
audit adjustment by the Internal Revenue Service that is either (i) agreed to by both you and
Broadcom or (ii) sustained by a court of competent jurisdiction in a decision with which both you
and Broadcom concur or with respect to which the period within which an appeal may be filed has
lapsed without a notice of appeal being filed.




          D. Should the Accounting Firm determine that any Gross-Up Payment made to you was in fact more
than the amount actually required to be paid to you in accordance with the provisions of Subsection
5.B, then you will, at the direction and expense of Broadcom, take such steps as are reasonably
necessary (including the filing of returns and claims for refund), follow reasonable instructions
from, and procedures established by, Broadcom, and otherwise reasonably cooperate with Broadcom to
correct such overpayment. Furthermore, should Broadcom decide to contest any assessment by the
Internal Revenue Service of an Excise Tax on one or more payments or benefits provided you under
the New Agreement or this revised Appendix II or otherwise, you will comply with all reasonable
actions requested by Broadcom in connection with such proceedings, but shall not be required to
incur any out-of-pocket costs in so doing.




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          E. Notwithstanding anything to the contrary in the foregoing, any Gross-Up Payments due you
under this Section 5 shall be subject to the hold-back provisions of Section 3. In addition, no
Gross-Up Payment shall be made later than the end of the calendar year following the calendar year
in which the related taxes are remitted to the appropriate tax authorities or such other specified
time or schedule that may be permitted under Section 409A of the Code. To the extent you become
entitled to any reimbursement of expenses incurred at the direction of Broadcom in connection with
any tax audit or litigation addressing the existence or amount of the Excise Tax, such
reimbursement shall be paid to you no later than the later of (i) the close of the calendar year in
which the Excise Tax that is the subject of such audit or litigation is paid by you or (ii) the end
of the sixty (60)-day period measured from such payment date. If no Excise Tax liability is found
to be due as a result of such audit or litigation, the reimbursement shall be paid to you no later
than the later of (i) the close of the calendar year in which the audit is completed or there is a
final and non-appealable settlement or other resolution of the litigation or (ii) the end of the
sixty (60)-day period measured from the date the audit is completed or the date the litigation is
so settled or resolved.




     6. Benefit Limitation. The provisions of this Section 6 shall be applicable in the
event (i) any payments or benefits to which you become entitled in accordance with the provisions
of the New Agreement and this revised Appendix II or any other agreement with Broadcom would
otherwise constitute a Parachute Payment that is subject to the Excise Tax and (ii) it is
determined by the Accounting Firm that the Present Value (measured as of effective date of the
Change in Control) of your aggregate Parachute Payment does not exceed one hundred twenty percent
(120%) of your Permissible Parachute Amount or you are not otherwise entitled to the Gross-Up
Payment by reason of your failure to comply with your restrictive covenants under Section 4 or any
other of your Severance Benefit Requirements.




          In such event, those payments and benefits will be subject to reduction to the extent
necessary to assure that you receive only the greater of (i) your Permissible Parachute Amount or
(ii) the amount which yields you the greatest after-tax amount of benefits after taking into
account any excise tax imposed under Section 4999 of the Code on the payments and benefits provided
to you under the New Agreement and this revised Appendix II (or on any other benefits to which you
may be entitled in connection with a change in control or ownership of Broadcom or the subsequent
termination of your employment with Broadcom). To the extent any such reduction is required, the
dollar amount of your Cash Severance under Subsection 1(a) of this revised Appendix II will be
reduced first, with such reduction to be effected pro-rata as to each payment, then the dollar
amount of your Lump Sum Health Care and Insurance Benefit Payments shall each be reduced pro-rata,
next the number of options or other equity awards that are to vest on an accelerated basis pursuant
to Subsection 1(b) of this revised Appendix II shall be reduced (based on the value of the
parachute payment resulting from such acceleration) in the same chronological order in which
awarded, and finally your remaining benefits will be reduced in a manner that will not result in
any impermissible deferral or acceleration of benefits under Section 409A.




          Notwithstanding the foregoing, in determining whether the benefit limitation of this Section 6
is exceeded, the Accounting Firm shall make a reasonable determination of the value of the
restrictive covenants to which you will be subject under Section 4 of this revised
Appendix II, and the amount of your potential Parachute Payment shall accordingly be reduced
by the
value of those restrictive covenants to the extent consistent with Code Section 280G and the
Treasury Regulations thereunder.




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     7. Other Terminations. Notwithstanding the provisions of Section 1 of this revised
Appendix II, if your employment is terminated by reason of your death or by Broadcom for Cause or
by reason of your Disability, or you terminate your employment without Good Reason, you shall not
be entitled to participate in the Severance Program, and your participation in the Severance
Program shall terminate without further obligations to you or your legal representatives under the
Severance Program, provided, however, that Broadcom shall timely pay the Accrued Obligations and
shall timely pay or provide the Other Benefits to you, your legal representative or your designated
beneficiaries, as the case may be. However, in the event your employment is terminated by reason
of your death or Disability, then (i) Broadcom shall also timely pay the bonuses described in
Subsection 1(d) above, if any, to you or your legal representative, subject to any required
holdback under Section 3 and, (ii) notwithstanding any less favorable terms in any stock option or
other equity award agreement or plan or this Severance Program or the Employment Agreement, any
unvested portion of any stock options, restricted stock units or other equity awards granted to you
by Broadcom, whether before or after the date of this New Agreement, shall immediately vest in full
on your Date of Termination and remain exercisable by you or your legal representative for 12
months after the Date of Termination. The shares of Broadcom Class A common stock subject to any
restricted stock unit award that vests on an accelerated basis in accordance with the foregoing
shall be issued within the sixty (60) day period measured from the date of your Separation from
Service due to your death or Disability, but in no event later than the next regularly-scheduled
share issuance date for that restricted stock unit award date (currently, the 5th day of February,
May, August and November each year) following the date of your Separation from Service, unless
subject to further deferral pursuant to the provisions of Section 3 above.



     8. Cause. Broadcom may terminate your employment with or without Cause as defined in
this Section 8. For purposes of the Employment Agreement and the Severance Program, “Cause” shall
mean the reasonable and good faith determination by a majority of Broadcom’s Board of Directors
(the “Board”) that any of the following events or contingencies exists or has occurred:




     (a) You materially breached a fiduciary duty to Broadcom, materially breached a
material term of the Confidentiality and Invention Assignment Agreement between you and
Broadcom, or materially breached any material term or policy set forth or described in
Broadcom’s Code of Ethics and Corporate Conduct;




     (b) You are convicted of a felony that involves fraud, dishonesty, theft, embezzlement
and/or an act of violence or moral turpitude, or plead guilty or no contest (or a similar
plea) to any such felony;




     (c) You engage in any act, or there is any omission on your part, that constitutes
fraud, material negligence or material misconduct in connection with your employment by
Broadcom, including (but not limited to) a material violation of applicable material state
or federal securities laws. Notwithstanding the foregoing, an isolated or occasional
failure to file or late filing of a report required under Section 16 of



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the Exchange Act shall not be deemed a material violation for purposes of this
Subsection 8(c). Furthermore, with respect to filing reports or certifications you are
required to provide under the Exchange Act, with respect to a transaction’s compliance with
the requirements of Rule 144 under the Securities Act of 1933, as amended or with respect to
the implementation of your 10b5-1 Plan, you shall not have committed a material violation
for purposes of this Subsection 8(c) if the violation occurred because you relied in good
faith on a certification or certifications provided by Broadcom or an authorized employee or
agent of Broadcom, unless you knew or should have known after reasonable diligence that such
certification was inaccurate, or upon the processes or actions of the securities brokerage
firm handling your transactions in Broadcom equities provided that you have used a
nationally recognized securities brokerage firm with substantial prior experience in and
established regular procedures for handling option and equity transactions by executive
officers of public companies in the United States; or




     (d) You willfully and knowingly participate in the preparation or release of false or
materially misleading financial statements relating to Broadcom’s operations and financial
condition or you willfully and knowingly submit any false or erroneous certification
required of you under the Sarbanes-Oxley Act of 2002 or any
securities exchange on which shares of Broadcom’s Class A common stock are at the time listed for trading.



     The foregoing shall constitute an exclusive list of the events or contingencies that may
constitute Cause under the Employment Agreement and this revised Appendix II.



     No termination that is based exclusively upon your commission or alleged commission of act(s)
or omission(s) that are asserted to constitute material negligence shall constitute Cause hereunder
unless you have been afforded notice of the alleged acts or omissions and have failed to cure such
acts or omissions within thirty (30) days after receipt of such notice.



     If, following the receipt of a Notice of Termination stating that your termination is for
Cause, you believe that Cause does not exist, you may, by written notice delivered to the Board
within three business (3) days after receipt of such Notice of Termination, request that your Date
of Termination be delayed to permit you to appeal the Board’s determination that Cause for such
termination existed. If you so request, you will be placed on administrative leave for a period
determined by the Board (not to exceed 30 days), during which you will be afforded an opportunity
to request that the Board reconsider its decision concerning your termination. If the Board or an
appropriate committee thereof has not previously provided you with an opportunity to be heard in
person concerning the reasons for termination stated in the Notice of Termination, the Board will
endeavor in good faith to provide you with such an opportunity during such period of administrative
leave. It is understood and agreed that any change in your employment status that occurs in
connection with or as a result of such an administrative leave shall not constitute Good Reason.
The Board may, as a result of such a request for reconsideration, reinstate your employment, revise
the original Notice of Termination, or affirm the original Notice of Termination. If the Board
affirms the original Notice of Termination or the period of administrative leave ends before the
Board takes action, the Date of Termination shall be the date specified in the original Notice of
Termination. If the Board reinstates your employment or
revises the original Notice of Termination, then the original Notice of Termination shall be
void and neither its delivery nor its contents shall be deemed to constitute Good Reason.



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     9. Good Reason. You may terminate your employment with or without Good Reason as
defined in this Section 9. For purposes of the Employment Agreement and the Severance Program,
“Good Reason” shall mean:




     (a) except as you may otherwise agree in writing and except as a result of an
administrative leave and the related procedure described in the definition of Cause above, a
change in your position (including status, offices, titles and reporting requirements) with
Broadcom that materially reduces your authority, duties or responsibilities as in effect on
the day you commenced employment, or any other action by Broadcom that results in a material
diminution in such position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial or inadvertent action that is remedied by Broadcom
reasonably promptly after Broadcom receives your notice thereof; however, for purposes of
this Subsection 9(a), it will be deemed to be a material reduction or diminution in your
position or duties if (i) you are not at all times Broadcom’s Chief Executive Officer and a
member of the Board of Directors of Broadcom (or any successor entity), or in lieu thereof
if Broadcom (or its successor) has any parent entities, then you are not at all times the
Chief Executive Officer and a member of the board of directors of the highest such parent
entity, (ii) Broadcom (acting through the Board) or any individual who has the right to vote
securities representing more than 10% of the voting power of all of Broadcom’s common shares
publicly and materially disparages you through any oral or written communications to any
third party (provided, however, that in no event shall non-public communications by or
between you and Broadcom or any member of the Board, such as performance reviews, be
considered to constitute such public and material disparagement), or (iii) Broadcom hires,
appoints or promotes any person to an executive officer position at Broadcom without your
prior consent (which you shall not unreasonably withhold);




     (b) any reduction in your base salary, as the same may be increased from time-to-time,
provided, however, that a reduction or series of reductions in your base salary (not
exceeding 15% in the aggregate) that is part of a broad-based reduction in base salaries for
management employees and pursuant to which your base salary is not reduced by a greater
percentage than the reductions applicable to other management employees shall not constitute
Good Reason




     (c) any action by Broadcom (including the elimination of benefit plans without
providing substitutes therefor or the reduction of your benefit thereunder) that would
materially diminish the aggregate value of your bonuses and other cash incentive awards and
fringe benefits, including executive benefits and perquisites, from the levels in effect on
the date of the New Agreement, by more than fifteen percent (15%) in the aggregate,
provided, however, that (i) a reduction in your bonuses, cash awards or benefits that is
part of a broad-based reduction in corresponding bonuses, awards or benefits for management
employees and pursuant to which your bonuses, awards or benefits are not reduced by a
greater percentage than the reductions applicable to other management employees and (ii) a
reduction in your bonuses and other cash incentive awards occurring as a result of your
failure or Broadcom’s failure to satisfy performance criteria applicable to such bonuses or
awards shall not constitute Good Reason;



14









 






     (d) Broadcom’s requiring you to be based at any office or business location that
increases the distance from your home to such office or location by more than fifty (50)
miles from the distance in effect as of the date that such requirement is imposed;




     (e) any purported termination by Broadcom of your employment other than pursuant to a
Notice of Termination (for avoidance of doubt, the delivery or contents of a Notice of
Termination that is revised or voided under the procedure provided in the definition of
Cause above shall not constitute Good Reason); or




     (f) any failure by Broadcom (or any successor) to comply with and satisfy Section 17 of
this revised Appendix II after receipt of written notice from you of such failure and a
reasonable cure period of not less than thirty (30) days.



     The foregoing shall constitute an exclusive list of the events or contingencies that may
constitute Good Reason under your Employment Agreement and this revised Appendix II.



     Notwithstanding the above, an isolated or inadvertent action or inaction by Broadcom that
causes Broadcom to fail to comply with Subsections 9(b) or 9(c) and that is cured within ten (10)
days of your notifying Broadcom of such action or inaction shall not constitute Good Reason.
Furthermore, no act, occurrence or condition set forth in this Section 9 shall constitute Good
Reason if you consent in writing to such act, occurrence or condition, whether such consent is
delivered before or after the act, occurrence or condition comes to pass.



     10. Death. Your employment shall terminate automatically upon your death.



     11. Disability. If your Disability occurs while you are employed by Broadcom and no
reasonable accommodation is available to permit you to continue to perform the essential duties and
responsibilities of your position, Broadcom may give you written notice of its intention to
terminate your employment. In such event, your employment with Broadcom shall terminate effective
on the 30th day after you receive such notice (the “Disability Effective Date”), provided you shall
not have returned to performing your duties within thirty (30) days after such receipt. For
purposes of the Employment Agreement and the Severance Program, “Disability” shall mean your
absence from and inability to perform your duties with Broadcom on a full-time basis for one
hundred eighty (180) consecutive business days as a result of incapacity due to mental or physical
illness that is both (i) determined to be total and permanent by two (2) physicians selected by
Broadcom or its insurers and acceptable to you or your legal representative, and (ii) entitles you
to the payment of long-term disability benefits from Broadcom’s long-term disability plan
commencing immediately upon the Disability Effective Date.



     12. Notice of Termination. For purposes of the Severance Program, a “Notice of
Termination” means a written notice that (i) indicates the specific termination provision relied
upon for the termination of your employment, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of your
employment under the provision so indicated, and (iii) if the Date of Termination (as defined



15









 







below) is other than the date of receipt of such notice, specifies the termination date (which date
shall be not more than thirty (30) days after the giving of such notice). The basis for
termination set forth in any Notice of Termination shall constitute the exclusive set of facts and
circumstances upon which the party may rely to attempt to demonstrate that Cause or Good Reason (as
the case may be) for such termination existed.



     13. Date of Termination. “Date of Termination” means (i) except as set forth in the
definition of Cause, if your employment is terminated by Broadcom or by you for any reason other
than death or Disability, the date of receipt of the Notice of Termination or a later date (within
the limit set forth in the definition of Notice of Termination) specified therein, as the case may
be, and (ii) if your employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of your death or the Disability Effective Date, as the case may be.



     14. Definitions. For purposes of the Severance Program in effect under this revised
Appendix II, the following definitions shall be in effect:



          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Separation from Service” means the cessation of your Employee status and shall be deemed to
occur at such time as the level of the bona fide services you are to perform in Employee status (or
as a consultant or other independent contractor) permanently decreases to a level that is not more
than twenty percent (20%) of the average level of services you rendered in Employee status during
the immediately preceding thirty-six (36) months (or such shorter period for which you may have
rendered such service). Any such determination as to Separation from Service, however, shall be
made in accordance with the applicable standards of the Treasury Regulations issued under Section
409A. In addition to the foregoing, a Separation from Service will not be deemed to have occurred
while you are on a sick leave or other bona fide leave of absence if the period of such leave does
not exceed six (6) months or any longer period for which you are provided with a right to
reemployment with Broadcom by either statute or contract, provided, however, that in the event of a
leave of absence due to any medically determinable physical or mental impairment that can be
expected to result in death or to last for a continuous period of not less than six (6) months and
that causes you to be unable to perform your duties as an Employee, no Separation from Service
shall be deemed to occur during the first twenty-nine (29) months of such leave. If the period of
leave exceeds six (6) months (or twenty-nine (29) months in the event of disability as indicated
above) and you are not provided with a right to reemployment by either statute or contract, then
you will be deemed to have Separated from Service on the first day immediately following the
expiration of the applicable six (6)-month or twenty-nine (29)-month period.




     For purposes of determining whether a Separation from Service has occurred, you will be deemed
to continue in “Employee” status for so long as you remain in the employ of one or more members of
the Employer Group, subject to the control and direction of the employer entity as to both the work
to be performed and the manner and method of performance.



     “Employer Group” means Broadcom and any other corporation or business controlled by,
controlling or under common control with, Broadcom, as determined in accordance with Sections
414(b) and (c) of the Code and the Treasury Regulations thereunder, except that in



16









 







applying Sections 1563(1), (2) and (3) for purposes of determining the controlled group of
corporations under Section 414(b), the phrase “at least 50 percent” shall be used instead of “at
least 80 percent” each place the latter phrase appears in such sections, and in applying Section
1.414(c)-2 of the Treasury Regulations for purposes of determining trades or businesses that are
under common control for purposes of Section 414(c), the phrase “at least 50 percent” shall be used
instead of “at least 80 percent” each place the latter phrase appears in Section 1.4.14(c)-2 of the
Treasury Regulations.



     “Specified Employee” means a “key employee” (within the meaning of that term under Code
Section 416(i)). Accordingly, you will be deemed to be a Specified Employee if you are,
as of the last day of any calendar year:



          (i) an officer of Broadcom whose annual compensation from Broadcom and any other members of
the Employer Group is in the aggregate greater than the compensation limit in Section
416(i)(1)(A)(i) of the Code, provided that no more than fifty (50) officers of Broadcom shall be
determined to be Specified Employees as of the relevant determination date;




          (ii) a five percent (5%) owner of Broadcom or any other member of the Employer Group; or




          (iii) a one percent (1%) owner of Broadcom or any other member of the Employer Group whose
annual compensation from Broadcom and any other members of the Employer Group is in the aggregate
more than $150,000.




     The Specified Employees shall be determined as of the last day of each calendar year. If you
are determined to be a Specified Employee on any such date, you will be considered a Specified
Employee for purposes of the Severance Program during the period beginning on the April 1 of the
following year and ending on the March 31 of the next year thereafter.



     For purposes of determining an officer’s compensation when identifying Specified Employees,
compensation is defined in accordance with Treas. Reg. §1.415(c)—2(a), without applying any safe
harbor, special timing or other special rules described in Treas. Reg. §§ 1.415(c)—2(d), 2(e) and
2(g).



     15. Non-exclusivity of Rights. Nothing in the Severance Program shall prevent or
limit your continuing or future participation in any plan, program, policy or practice provided by
Broadcom or any of its affiliated companies and for which you may qualify, nor, subject to
Subsection 1(b), shall anything herein limit or otherwise affect such rights as you may have under
any contract or agreement with Broadcom or any of its affiliated companies. Amounts that are
vested benefits or which you are otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with Broadcom or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement, except as explicitly modified by this revised
Appendix II.



17









 





     16. Full Settlement. Except as specifically set forth in this revised Appendix II or
the accompanying Employment Agreement, Broadcom’s obligation to make the payments provided for in
the Severance Program and otherwise to perform its obligations hereunder shall not be affected by
any set-off, counterclaim, recoupment, defense or other claim, right or action which Broadcom may
have against you or others, except only for any advances made to you or for taxes that Broadcom is
required to withhold by law. In no event shall you be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to you under any of the provisions of
the Severance Program, and such amounts shall not be reduced whether or not you obtain other
employment.



     17. Successors.




     (a) Any benefits payable under the Severance Program are personal to you and shall not
be assignable by you otherwise than by will or the laws of descent and distribution. The
benefits under the Severance Program shall inure to the benefit of and be enforceable by
your legal representatives.




     (b) Any rights and obligations under the Severance Program shall inure to the benefit
of and be binding upon Broadcom and its successors and assigns.




     (c) Broadcom will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of Broadcom to expressly assume and agree in writing to perform its obligations under
the Employment Agreement and the Severance Program in the same manner and to the same extent
that Broadcom would be required to perform those obligations it if no such succession had
taken place. As used in the Severance Program, “Broadcom” shall include any successor to
all or substantially all of its business and/or assets, as aforesaid, which assumes and
agrees to perform the obligations created by the Severance Program by operation of law or
otherwise.



     18. Severability. If any provision of this revised Appendix II as applied to any
party or to any circumstance should be adjudged by a court of competent jurisdiction or determined
by an arbitrator to be void or unenforceable for any reason, the invalidity of that provision shall
in no way affect (to the maximum extent permissible by law) the application of such provision under
circumstances different from those adjudicated by the court or determined by the arbitrator, the
application of any other provision of this revised Appendix II, or the enforceability or invalidity
of this revised Appendix II as a whole. Should any provision of this revised Appendix II become or
be deemed invalid, illegal or unenforceable in any jurisdiction by reason of the scope, extent or
duration of its coverage, then such provision shall be deemed amended to the extent necessary to
conform to applicable law so as to be valid and enforceable or, if such provision cannot be so
amended without materially altering the intention of the parties, then such provision will be
stricken, and the remainder of this revised Appendix II shall continue in full force and effect.



     19. Withholding Taxes. Broadcom shall withhold from any amounts payable under the
Severance Program all Federal, state, local or foreign taxes required to be withheld pursuant to
any applicable law or regulation.



18









 





     To acknowledge your participation in the Severance Program pursuant to the New Agreement
revising the terms and provisions of attached Appendix II to your Employment Agreement and your
understanding of those terms and provisions, please sign, date and return the enclosed copy of this
New Agreement.



	 	 	 	 	 
	 	Broadcom Corporation

 	 
	 	By:  	/s/ Eric K. Brandt
 	 
	 	 	Eric K. Brandt 	 
	 	 	Title:  	Senior Vice President &

Chief Financial Officer 	 
	 



ACCEPTANCE



I hereby accept all of the terms and conditions of the New Agreement, including the revised
Appendix II thereto, and agree to be bound by all those terms and conditions.




	 	 	 	 	 
	 	 	 
	 	                                 /s/ Scott A. McGregor
 	 
	 	Scott A. McGregor 	 
	 
	 	Dated:  August 12, 2008 	 
	 




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