Dell 2002 Annual Report Download - page 75

Company with respect to Expenses relating to, arising out of or
resulting from any Indemnifiable Claim with respect to which it shall
have been determined, following the final disposition of such
Indemnifiable Claim and in accordance with Section 7, that Indemnitee
is not entitled to indemnification hereunder.
4. INDEMNIFICATION FOR ADDITIONAL EXPENSES -- Without limiting the
generality or effect of the foregoing, 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 Expenses paid or incurred by
Indemnitee or which Indemnitee determines are reasonably likely to be
paid or incurred by Indemnitee in connection with any Claim made,
instituted or conducted by Indemnitee for (a) indemnification or
reimbursement or advance payment of Expenses by the Company under any
provision of this Agreement or under any other agreement or provision
of the Constituent Documents now or hereafter in effect relating to
Indemnifiable Claims or (b) recovery under any directors' and officers'
liability insurance policies maintained by the Company, regardless in
each case of whether Indemnitee ultimately is determined to be entitled
to such indemnification, reimbursement, advance or insurance recovery,
as the case may be; provided, however, that Indemnitee shall return,
without interest, any such advance of Expenses (or portion thereof)
that remains unspent at the final disposition of the Claim to which the
advance related.
5. PARTIAL INDEMNITY -- If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion
of any Indemnifiable Loss but not for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
6. PROCEDURE FOR NOTIFICATION -- To obtain indemnification under this
Agreement with respect to an Indemnifiable Claim or Indemnifiable Loss,
Indemnitee shall submit to the Company a written request therefor,
including a brief description (based upon information then available to
Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at
the time of the receipt of such request, the Company has directors' and
officers' liability insurance in effect under which coverage for such
Indemnifiable Claim or Indemnifiable Loss is potentially available, the
Company shall give prompt written notice of such Indemnifiable Claim or
Indemnifiable Loss to the applicable insurers in accordance with the
procedures set forth in the applicable policies. The Company shall
provide to Indemnitee a copy of such notice delivered to the applicable
insurers 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,
6