EMC 2008 Annual Report Download - page 133
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(k) No director of the corporation shall be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a
director to the extent provided by applicable law notwithstanding any provision of law imposing such liability; provided, however, that to the extent, and only
to the extent, required by Section 13(b) (11/2) or any successor provision of the Massachusetts Business Corporation Law, this provision shall not eliminate or
limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (iii) under the Massachusetts Business Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. This provision shall not be construed in any way so as to impose or create liability.
The foregoing provisions of this Article 6(k) shall not eliminate the liability of a director for any act or omission occurring prior to the date on which this
Article 6(k) becomes effective. No amendment to or repeal of this Article 6(k) shall apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
(l) The bylaws of the corporation may, but are not required to, provide that in a meeting of shareholders other than a Contested Election Meeting (as
defined below), a nominee for director shall be elected to the board of directors only if the votes cast "for" such nominee's election exceed the votes cast
"against" such nominee's election (with "abstentions," "broker non-votes" and "withheld votes" not counted as a vote "for" or "against" such nominee's
election). In a Contested Election Meeting, directors shall be elected by a plurality of the votes cast at such Contested Election Meeting. A meeting of
shareholders shall be a "Contested Election Meeting" if there are more persons nominated for election as directors at such meeting than there are directors to
be elected at such meeting, determined as of the tenth day preceding the date of the corporation's first notice to shareholders of such meeting sent pursuant to
the corporation's bylaws (the "Determination Date"); provided, however, that if in accordance with the corporation's bylaws, shareholders are entitled to
nominate persons for election as director for a period of time that ends after the otherwise applicable Determination Date, the Determination Date shall instead
be as of the end of such period.
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