Dell 2010 Annual Report Download - page 138

conduct under Delaware law is a legally required condition precedent to indemnification of Indemnitee hereunder against any
Indemnifiable Losses or (iii) Indemnitee has been determined or deemed pursuant to Section 7(b) or (c) to have satisfied any
applicable standard of conduct under Delaware law that is a legally required condition precedent to indemnification of
Indemnitee hereunder against any Indemnifiable Losses, then the Company shall pay to Indemnitee, within five business days
after the later of (x) the Notification Date with respect to the Indemnifiable Claim or portion thereof to which such
Indemnifiable Losses are related, out of which such Indemnifiable Losses arose or from which such Indemnifiable Losses
resulted and (y) the earliest date on which the applicable criterion specified in clause (i), (ii) or (iii) above shall have been
satisfied, an amount equal to the amount of such Indemnfiable Losses.
(e) If a Standard of Conduct Determination is to be made by Independent Counsel pursuant to Section 7(b)(i), the Independent
Counsel shall be selected by the Board and the Company shall give written notice to Indemnitee advising him or her of the
identity of the Independent Counsel so selected. If a Standard of Conduct Determination is to be made by Independent
Counsel pursuant to Section 7(b)(ii), the Independent Counsel shall be selected by Indemnitee and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent Counsel so selected. In either case, Indemnitee or
the Company, as applicable, may, within five business days after receiving written notice of selection from the other, deliver
to the other a written objection to such selection; provided, however, that such objection may be asserted only on the ground
that the Independent Counsel so selected does not satisfy the criteria set forth in the definition of "Independent Counsel" in
Section 1(h) and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely
objection, the person or firm so selected shall act as Independent Counsel. If such written objection is properly and timely
made and substantiated, (i) the Independent Counsel so selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has determined that such objection is without merit and (ii) the non-objecting party may, at
its option, select an alternative Independent Counsel and give written notice to the other party advising such other party of the
identity of the alternative Independent Counsel so selected, in which case the provisions of the two immediately preceding
sentences and clause (i) of this sentence shall apply to such subsequent selection and notice. If applicable, the provisions of
clause (ii) of the immediately preceding sentence shall apply to successive alternative selections. If no Independent Counsel
that is permitted under the foregoing provisions of this Section 7(e) to make the Standard of Conduct Determination shall have
been selected within 30 days after the 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