Exhibit 10.14
AS AMENDED DECEMBER 10,
2007
AND AS FURTHER AMENDED FEBRUARY 4,
2009
VMWARE, INC.
2007 EMPLOYEE STOCK PURCHASE PLAN
Section 1. Purpose of
Plan
The VMware, Inc. 2007 Employee Stock
Purchase Plan (the “Plan”) is intended to provide a
method by which eligible employees of VMware, Inc.
(“VMware”) and its subsidiaries (collectively, the
“Company”) may use voluntary, systematic payroll
deductions to purchase VMware’s class A common stock, $.01
par value, (“stock”) and thereby acquire an interest in
the future of VMware. For purposes of the Plan, a subsidiary is any
corporation in which VMware owns, directly or indirectly, stock
possessing 50% or more of the total combined voting power of all
classes of stock unless the Board of Directors of VMware (the
“Board of Directors”) determines that employees of a
particular subsidiary shall not be eligible.
Section 2. Options to Purchase
Stock
Under the Plan, no more than
6,400,000 shares of stock are available for purchase (subject to
adjustment as provided in Section 16) pursuant to the exercise
of options (“options”) granted under the Plan to
employees of the Company (“employees”). The stock to be
delivered upon exercise of options under the Plan may be either
shares of the Company’s authorized but unissued stock, or
shares of reacquired stock, as the Board of Directors shall
determine.
Section 3. Eligible
Employees
Except as otherwise provided in
Section 20, each employee who has completed three months or
more of continuous service in the employ of the Company shall be
eligible to participate in the Plan. Notwithstanding any other
provision herein, individuals who are not contemporaneously
classified as employees of VMware or an eligible subsidiary for
purposes of VMware’s or the applicable eligible
subsidiary’s payroll system are not considered to be eligible
employees and shall not be eligible to participate in the Plan. In
the event any such individuals are reclassified as employees of
VMware or an eligible subsidiary for any purpose, including,
without limitation, common law or statutory employees, by any
action of any third party, including, without limitation, any
government agency, or as a result of any private lawsuit, action or
administrative
proceeding, such individuals shall,
notwithstanding such reclassification, remain ineligible for
participation. Notwithstanding the foregoing, the exclusive means
for individuals who are not contemporaneously classified as
employees of VMware or an eligible subsidiary on the applicable
payroll system to become eligible to participate in this Plan is
through an amendment to this Plan, duly executed by VMware, which
specifically renders such individuals eligible to participate
herein.
Section 4. Method of
Participation
Option periods of any duration up to
27 months in length shall be determined by the Committee. In the
event no period is designated by the Committee, the option periods
shall have a duration of six months commencing on the first day
following termination of the prior period. For example, if an
option period ends on July 31, the following option period
would be August 1 through January 31 unless the Committee
determines otherwise prior to commencement of such following option
period. Each person who will be an eligible employee on the first
day of any option period may elect to participate in the Plan by
executing and delivering, at least one business day prior to such
day, a payroll deduction authorization in accordance with
Section 5. Such employee shall thereby become a participant
(“participant”) on the first day of such option period
and shall remain a participant until his or her participation is
terminated as provided in the Plan. The Company may permit
participants to elect or indicate whether an enrollment election,
once made, will apply to subsequent option periods without being
required to submit a new enrollment form. If an employee makes an
enrollment election that does not apply to subsequent option
periods, the employee will be deemed to have terminated his or her
participation with respect to subsequent option periods unless and
until the employee submits a new enrollment form in accordance with
the Plan.
Section 5. Payroll
Deductions
The payroll deduction authorization
shall request withholding, at a rate of not less than 2% nor more
than 15% from the participant’s compensation (subject to a
maximum of $7,500 per six-month option period and pro-rated for
longer or shorter periods, at the Committee’s discretion), by
means of substantially equal payroll deductions over the option
period; provided , however , that for option periods
beginning after October 1, 2008, any amount remaining in a
participant’s withholding account at the end of an option
period representing a fractional share that is rolled over to the
withholding account for the next option period pursuant to
Section 8 below (a “rollover”) may be used to
purchase additional stock; further provided that the
maximum dollar amount per option period shall be reduced by the
amount of any rollover. For purposes of the Plan,
“compensation” shall mean all cash compensation paid to
the participant by the Company.
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A participant may only elect to
change the withholding rate of his or her payroll deduction
authorization by written notice delivered to the Company at least
one business day prior to the first day of the option period as to
which the change is to be effective. Following delivery to the
Company of any payroll deduction authorization or any election to
change the withholding rate of a payroll deduction authorization,
appropriate payroll deductions or changes thereto shall commence as
soon as reasonably practicable. All amounts withheld in accordance
with a participant’s payroll deduction authorization shall be
credited to a withholding account for such participant.
Section 6. Grant of
Options
Each person who is a participant on
the first day of an option period shall as of such day be granted
an option for such period. Such option shall be for the number of
shares of stock to be determined by dividing (a) the balance
in the participant’s withholding account on the last day of
the option period by (b) the purchase price per share of the
stock determined under Section 7, and eliminating any
fractional share from the quotient. In the event that the number of
shares then available under the Plan is otherwise insufficient, the
Company shall reduce on a substantially proportionate basis the
number of shares of stock receivable by each participant upon
exercise of his or her option for an option period and shall return
the balance in a participant’s withholding account to such
participant. In no event shall the number of shares of stock that a
participant may purchase during any one six-month option period
under the Plan exceed 750 shares of stock, and pro-rated for longer
or shorter periods, at the Committee’s discretion.
Section 7. Purchase
Price
The purchase price of stock issued
pursuant to the exercise of an option shall be 85% of the fair
market value of the stock at (a) the time of grant of the
option or (b) the time at which the option is deemed
exercised, whichever is less. “Fair market value” shall
mean the closing sales price per share of the stock on the
principal securities exchange on which the stock is traded or, if
there is no such sale on the relevant date, then on the last
previous day on which a sale was reported; if the stock is not
listed for trading on a national securities exchange, the fair
market value of the stock shall be determined in good faith by the
Board of Directors.
Section 8. Exercise of
Options
If an employee is a participant in
the Plan on the last business day of an option period, he or she
shall be deemed to have exercised the option granted to him or her
for that period. Upon such exercise, the Company shall apply the
balance of the participant’s withholding account to the
purchase of the number of whole shares of stock determined under
Section 6, and as soon as practicable thereafter shall issue
and deliver certificates for said shares to the participant. No
fractional shares shall be issued hereunder. Any balance
accumulated in the participant’s withholding
account
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that is not sufficient to purchase a full share
shall be retained in such account for any remaining or subsequent
option period, subject to early withdrawal by the participant as
provided in Section 10. Any other monies remaining in the
participant’s withholding account under the Plan after the
date of exercise shall b
