Dell 2002 Annual Report Download - page 78

Company gives its initial notice pursuant to the first
sentence of this Section 7(e) or Indemnitee gives its initial
notice pursuant to the second sentence of this Section 7(e),
as the case may be, either the Company or Indemnitee may
petition the Court of Chancery of the State of Delaware for
resolution of any objection that has been made by the Company
or Indemnitee to the other's selection of Independent Counsel
or for the appointment as Independent Counsel of a person
selected by the Court or by such other person as the Court
shall designate, and the person or firm with respect to whom
all objections are so resolved or the person or firm so
appointed will act as Independent Counsel. In all events, the
Company shall pay all of the reasonable fees and expenses of
the Independent Counsel incurred in connection with the
Independent Counsel's determination pursuant to Section 7(b).
8. PRESUMPTION OF ENTITLEMENT -- In making any Standard of Conduct
Determination, the person or persons making such determination shall
presume that Indemnitee has satisfied the applicable standard of
conduct, and the Company may overcome such presumption only by its
adducing clear and convincing evidence to the contrary. Any Standard of
Conduct Determination that is adverse to Indemnitee may be challenged
by Indemnitee in the Court of Chancery of the State of Delaware. No
determination by the Company (including by its directors or any
Independent Counsel) that Indemnitee has not satisfied any applicable
standard of conduct shall be a defense to any Claim by Indemnitee for
indemnification or reimbursement or advance payment of Expenses by the
Company hereunder or create a presumption that Indemnitee has not met
any applicable standard of conduct.
9. NO OTHER PRESUMPTION -- For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere or its
equivalent, or an entry of an order of probation prior to judgment,
shall not create a presumption that Indemnitee did not meet any
applicable standard of conduct or that indemnification hereunder is
otherwise not permitted.
10. NON-EXCLUSIVITY -- The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Constituent
Documents, the substantive laws of the State of Delaware, any other
contract or otherwise (collectively, "OTHER INDEMNITY PROVISIONS");
provided, however, that (a) to the extent that Indemnitee otherwise
would have any greater right to indemnification under any Other
Indemnity Provision, Indemnitee shall be deemed to have such greater
right hereunder and (b) to the extent that any change is made to any
Other Indemnity Provision that permits any greater right to
indemnification than that provided under this Agreement as of the date
hereof, Indemnitee shall be deemed to have such greater right
hereunder. The Company shall not adopt any amendment to any of the
Constituent Documents the effect of which would be to deny, diminish or
encumber Indemnitee's right to indemnification under this Agreement or
any Other Indemnity Provision.
11. LIABILITY INSURANCE AND FUNDING -- For the duration of Indemnitee's
service as a director of the Company and thereafter for so long as
Indemnitee shall be subject to any pending or possible Indemnifiable
Claim, to the extent the Company maintains policies of directors' and
officers' liability insurance providing coverage for directors and
officers of the Company, Indemnitee shall be covered by such policies,
in accordance with their terms, to the maximum extent of the coverage
available for any other director or officer of the Company. Upon
request of Indemnitee, the
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