Dell 2010 Annual Report Download - page 137

and copies of all subsequent correspondence between the Company and such insurers regarding the Indemnifiable Claim or
Indemnifiable Loss, in each case substantially concurrently with the delivery or receipt thereof by the Company. The failure by
Indemnitee to timely notify the Company of any Indemnifiable Claim or Indemnifiable Loss shall not relieve the Company from
any liability hereunder unless, and only to the extent that, the Company did not otherwise learn of such Indemnifiable Claim or
Indemnifiable Loss and such failure results in forfeiture by the Company of substantial defenses, rights or insurance coverage.
7. Determination of Right to Indemnification —
(a) To the extent that Indemnitee shall have been successful on the merits or otherwise in defense of any Indemnifiable Claim or
any portion thereof or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim in
accordance with Section 2 and no Standard of Conduct Determination (as defined in paragraph (b) below) shall be required.
(b) To the extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable Claim that shall have been finally
disposed of, any determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law
that is a legally required condition precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses relating
to, arising out of or resulting from such Indemnifiable Claim (a "Standard of Conduct Determination") shall be made as
follows:
(i) If a Change of Control has not occurred, or if a Change of Control has occurred but Indemnitee has requested that the
Standard of Conduct Determination be made pursuant to this clause (i):
(A) By a majority vote of the Disinterested Directors, even if less than a quorum of the Board;
(B) If such Disinterested Directors so direct, by a majority vote of a committee of Disinterested Directors designated
by a majority vote of all Disinterested Directors; or
(C) If there are no such Disinterested Directors, by Independent Counsel in a written opinion addressed to the Board,
a copy of which shall be delivered to Indemnitee; and
(ii) If a Change of Control has occurred and Indemnitee has not requested that the Standard of Conduct Determination be
made pursuant to clause (i) above, by Independent Counsel in a written opinion addressed to the Board, a copy of
which shall be delivered to Indemnitee.
Indemnitee will cooperate with the person or persons making such Standard of Conduct Determination, including providing to
such person or persons, upon reasonable advance request, any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such
determination. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall
reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request, any and all costs and expenses
(including attorneys' and experts' fees and expenses) incurred by Indemnitee in so cooperating with the person making such
Standard of Conduct Determination.
(c) The Company shall use its reasonable best efforts to cause any Standard of Conduct Determination required under
Section 7(b) to be made as promptly as practicable. If (i) the person or persons empowered or selected under Section 7(b) to
make the Standard of Conduct Determination shall not have made a determination within 30 days after the later of (A) receipt
by the Company of written notice from Indemnitee advising the Company of the final disposition of the applicable
Indemnifiable Claim (the date of such receipt being the "Notification Date") and (B) the selection of an Independent Counsel,
if such determination is to be made by Independent Counsel, that is permitted under the provisions of Section 7(e) to make
such determination and (ii) Indemnitee shall have fulfilled his or her obligations set forth in the second sentence of Section
7(b), then Indemnitee shall be deemed to have satisfied the applicable standard of conduct; provided, however, that such
30-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person making such
determination in good faith requires such additional time to obtain or evaluate documentation or information relating thereto.
(d) If (i) Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable Losses pursuant to Section 7(a),
(ii) no determination of whether Indemnitee has satisfied any applicable standard of