Dell 2002 Annual Report Download - page 79

Company shall provide Indemnitee with a copy of all directors' and
officers' liability insurance applications, binders, policies,
declarations, endorsements and other related materials and shall
provide Indemnitee with a reasonable opportunity to review and comment
on the same. Without limiting the generality or effect of the two
immediately preceding sentences, no discontinuation or significant
reduction in the scope or amount of coverage from one policy period to
the next shall be effective (a) without the prior approval thereof by a
majority vote of the Incumbent Directors, even if less than a quorum,
or (b) if at the time that any such discontinuation or significant
reduction in the scope or amount of coverage is proposed there are no
Incumbent Directors, without the prior written consent of Indemnitee
(which consent shall not be unreasonably withheld or delayed). In all
policies of directors' and officers' liability insurance obtained by
the Company, Indemnitee shall be named as an insured in such a manner
as to provide Indemnitee the same rights and benefits, subject to the
same limitations, as are accorded to the Company's directors and
officers most favorably insured by such policy. The Company may, but
shall not be required to, create a trust fund, grant a security
interest or use other means, including a letter of credit, to ensure
the payment of such amounts as may be necessary to satisfy its
obligations to indemnify and advance expenses pursuant to this
Agreement.
12. SUBROGATION -- In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the
related rights of recovery of Indemnitee against other persons or
entities (other than Indemnitee's successors), including any entity or
enterprise referred to in clause (i) of the definition of
"Indemnifiable Claim" in Section 1(f). Indemnitee shall execute all
papers reasonably required to evidence such rights (all of Indemnitee's
reasonable Expenses, including attorneys' fees and charges, related
thereto to be reimbursed by or, at the option of Indemnitee, advanced
by the Company).
13. NO DUPLICATION OF PAYMENTS -- The Company shall not be liable under
this Agreement to make any payment to Indemnitee with respect to any
Indemnifiable Losses to the extent Indemnitee has otherwise actually
received payment (net of Expenses incurred in connection therewith)
under any insurance policy, the Constituent Documents or Other
Indemnity Provisions or otherwise (including from any entity or
enterprise referred to in clause (i) of the definition of
"Indemnifiable Claim" in Section 1(f)) with respect to such
Indemnifiable Losses otherwise indemnifiable hereunder.
14. DEFENSE OF CLAIMS -- The Company shall be entitled to participate in
the defense of any Indemnifiable Claim or to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee; provided,
however, that if Indemnitee believes, after consultation with counsel
selected by Indemnitee, that (a) the use of counsel chosen by the
Company to represent Indemnitee would present such counsel with an
actual or potential conflict, (b) the named parties in any such
Indemnifiable Claim (including any impleaded parties) include both the
Company and Indemnitee and Indemnitee shall conclude that there may be
one or more legal defenses available to him or her that are different
from or in addition to those available to the Company or (c) any such
representation by such counsel would be precluded under the applicable
standards of professional conduct then prevailing, then Indemnitee
shall be entitled to retain separate counsel (but not more than one law
firm plus, if applicable, local counsel with respect to any particular
Indemnifiable Claim) at the Company's expense. The Company shall not be
liable to Indemnitee under this Agreement for any amounts paid in
settlement of any threatened or pending Indemnifiable Claim effected
without the Company's prior written consent. The Company shall not,
10