exv4w8






Exhibit 4.8




TOLLING AND STANDSTILL AGREEMENT




          THIS TOLLING AND STANDSTILL AGREEMENT (the “Agreement”) is made and entered into by Dell Inc.
(“Dell”) and the Dell Inc. Benefits Administration Committee (the “Committee”), on behalf of the
Dell Inc. 401(k) Plan (the “Plan”), to be effective as of March 31, 2007 (the “Effective Date”).




          WHEREAS, there are issues that have been identified arising from and/or relating to the
registered status under federal securities laws of certain Dell securities acquired by the Plan
prior to December 7, 2007;




          WHEREAS, the Committee, on behalf of the Plan, and Dell (the “Parties”) wish to continue to
investigate these issues to determine a prudent resolution of any such issues, provided that the
rights of the Plan and the Plan’s participants and beneficiaries are not prejudiced due to any
Time-Related Defenses (as defined in paragraph 6(b)) that may be asserted as to any Claims (as
defined in paragraph 6(a)); and




          WHEREAS, during the period of this investigation and any subsequent negotiations or
resolution, the Committee therefore wishes to protect the rights of the Plan and the participants
and beneficiaries of the Plan from any prejudice caused from the running of any Time-Related
Defenses as to any Claims, effective as of March 31, 2007.




          ACCORDINGLY, the Parties agree as follows:




     1. Period of Forbearance. Except as otherwise agreed by the Parties, the Plan and the
Committee shall forbear and postpone the filing, commencement, and prosecution of Claims, if any,
against Dell for the period of time (the “Period of Forbearance”) commencing on the Effective Date
and continuing until the earlier of (a) the termination of the Period of Forbearance pursuant to
paragraph 2, or (b) the completion of any rescission offer process implemented by Dell relating to
any Dell securities acquired by the Plan. Nothing in this Agreement shall preclude any Party from
initiating Claims or other legal action against the other Party after the termination of the Period
of Forbearance pursuant to paragraph 2.



     2. Termination. Any Party shall have the right, upon thirty (30) days written notice
to the other Party, to terminate the Period of Forbearance. Additionally, if any Claim is filed,
commenced, or prosecuted against Dell, Dell shall have the right to terminate the Period of
Forbearance, such termination to be effective ten (10) business days after written notice to the
Committee.



     3. Tolling Period. During the Period of Forbearance, all Time-Related Defenses will
be tolled for Claims against Dell. This Agreement does not constitute, and shall not be
interpreted as, an admission by any Party that any Claims are in existence; that any Claims have or
have not yet accrued; that, but for the Agreement, any Claims would or would not be barred by any
Time-Related Defense; or that the Committee has (or has assumed) any obligations to such
participants or beneficiaries regarding Claims that such participants or beneficiaries may have.
This Agreement shall have no effect on any Time-Related Defense already existing prior to the
Effective Date and, other than that the days covered by the Period of Forbearance shall not



 









 







count toward any Time-Related Defense, it shall have no effect on any Time-Related Defense
upon the termination of the Period of Forbearance.



     4. The current and former participants and beneficiaries of the Plan are express, intended
third party beneficiaries of the tolling of Time-Related Defenses under this Agreement. Dell
acknowledges the adequacy of the consideration for the tolling of the Time-Related Defenses as to
such participants and beneficiaries of the Plan, and Dell agrees not to assert any defense of lack
of or insufficiency of such consideration.



     5. Notice. Notice, when required by this Agreement, shall be effective upon receipt.
Notice shall be given in writing and sent by Certified U.S. Mail Return Receipt Requested, by
overnight delivery service, or by both facsimile and overnight delivery service, addressed as
follows:




	 	(a)	 	If to the Plan or the Committee:




c/o Janet Wright, Esq.

One Dell Way

Round Rock 1 — Mail Stop 8033

Round Rock, TX 78682

Facsimile: (512) 283-0544



With a copy to:



Donald J. Myers, Esq.

Reed Smith LLP

1301 K Street, N.W.

Suite 1100 — East Tower

Washington, DC 20005

Facsimile: (202) 414-9299





	 	(b)	 	If to Dell:




c/o Robert Potts, Esq.

One Dell Way

Round Rock 1 — Mail Stop 8033

Round Rock, TX 78682

Facsimile: (512) 283-5051



With a copy to:



Patricia J. Villareal, Esq.

Jones Day

2727 North Harwood Street

Dallas, TX 75201

Facsimile: (214) 969-5100




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     6. Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:



          (a) “Claim” or “Claims” means any action, arbitration, claim, crossclaim, counterclaim,
third-party claim, or other legal right or remedy, including the right of rescission, whether based
in law or equity, arising out of or related to the acquisition by the Plan of unregistered Dell
securities prior to December 7, 2007, if any, brought by or on behalf of the Plan or by any current
or former Plan participant or beneficiary in connection with contributions to the Plan or the
investment of Plan accounts;




          (b) “Time-Related Defense” or “Time-Related Defenses” means all defenses, whether by statute,
common law, or equity, based or partially based on the passage of time or on a conditioning of
rights based on the time of assertion, knowledge, or notice, and includes all statutes of
limitations and statutes of repose as well as all time-related equitable defenses, such as laches.




     7. Miscellaneous.



          (a) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the undersigned Parties and their respective officers, agents, employees, attorneys,
directors, subsidiaries, affiliates, parent companies, heirs, executors, administrators,
representatives, successors, and assigns.




          (b) Choice of Law. This Agreement shall be interpreted and construed under the laws
of the State of Texas, other than its laws with respect to choice of law, and except as preempted
by federal law.




          (c) Authority. Each signatory hereto represents and warrants that he/she is
authorized to execute this Agreement.




          (d) Completeness. This Agreement represents the entire Agreement of the Parties
hereto relating to the subject matter hereof.




          (e) Modifications. No modification of this Agreement shall be made except in writing
and signed by the Parties.




          (f) Counterparts. This Agreement and any modification may be executed in separate
counterparts that together constitute one instrument.




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	Dell Inc.
	 
	 	 
	/s/ Lawrence Tu
	 
	 
	 	 
	By:
	 	 
	 

	 	 
	 
	 	 
	Date:

	 	May 14, 2008
	 

	 	 





	 	 	 
	 
	 	 
	Dell Inc. 401(k) Plan

By: Dell Inc. Benefits Administration Committee
	 
	 	 
	/s/ Dominick DiCosimo
	 
	 
	 	 
	By:
	 	 
	 

	 	 
	 
	 	 
	Date:

	 	May 14, 2008
	 

	 	 






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