EMC 2007 Annual Report Download - page 161

combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
Notwithstanding anything in the foregoing to the contrary, no Change in Control shall be deemed to have occurred for purposes of this Agreement by virtue of
any transaction which results in the Indemnitee, or a group of Persons which includes the Indemnitee, acquiring, directly or indirectly, 25% or more of either
the then outstanding shares of common stock of the Company or the combined voting power of the Company's then outstanding securities.
(d) "Disinterested Director" shall mean a director of the Company who, at the time of a vote referred to in this Section 2 is not (i) a party to the
Proceeding, or (ii) an individual having a familial, financial, professional, or employment relationship with the Indemnitee, which relationship would, under
the circumstances, reasonably be expected to exert an influence on the director's judgment when voting on the decision being made.
(e) "Person" shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities or (iv) a
corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the
Company.
(f) In the event of a Change in Control after the date hereof (other than a Change in Control approved by a majority of the directors on the Board of
Directors who were directors immediately prior to such Change in Control), then with respect to all matters thereafter arising concerning the rights of
Indemnitee to indemnity payments under this Agreement or any Company By-Law or provision of the Company's Restated Articles now or hereafter in effect,
the Company shall seek legal advice only from independent counsel who has not otherwise performed services for the Company or the Indemnitee (other than
in connection with indemnification matters) within the last five years selected (i) if there are two or more Disinterested Directors, by the Board of Directors by
a majority vote of all the Disinterested Directors or by a majority of the members of a committee of two or more Disinterested Directors appointed by vote or
(ii) if there are fewer than two Disinterested Directors, by the Board of Directors of the Company; and which in any such case of selection in accordance with
clause (i) or (ii) of this section, shall be reasonably acceptable to the Indemnittee (such independent counsel, the "Independent Counsel"). The Independent
Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Indemnitee in an action to determine the Indemnitee's rights under this Agreement. The Independent Counsel, among
other things, shall render its written opinion to the Company and the Indemnitee as to whether and to what extent the Indemnitee should be permitted to be
indemnified under applicable law. The Company agrees to pay the reasonable fees of the Independent Counsel and to indemnify fully such Independent
Counsel against any and all expenses (including attorneys' fees), claims, liabilities, loss, and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
3. Other Expenses. The Company shall be liable to and shall pay the Indemnitee for any and all expenses (including attorneys' fees) which are
incurred by the Indemnitee in connection with any action brought by the Indemnitee for (i) indemnification or advance payment of Expenses by the Company
under this Agreement or any other agreement or Company By-law or provision of its Restated Articles now or hereafter in effect relating to indemnification
and/or (ii) recovery under any directors' and officers' liability insurance policies maintained by the Company, regardless of whether the Indemnitee ultimately
is determined to be entitled to such indemnification, advance expense payment or insurance
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