exv10w2



 




Exhibit 10.2



INDEMNIFICATION AGREEMENT



         AGREEMENT effective as of [DATE] (the “Effective Date”), between EMC
Corporation, a Massachusetts corporation (the “Company”), and [NAME] (the
“Indemnitee”).



         WHEREAS, it is essential to the Company to retain and attract as directors
and officers the most capable persons available; and



         WHEREAS, the Indemnitee is a director or officer of the Company; and



         WHEREAS, both the Company and the Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
public companies in today’s environment; and



         WHEREAS, as of the Effective Date the Company is subject to the provisions
of the new Massachusetts Business Corporation Act (the “Act”); and



         WHEREAS, in recognition of the Indemnitee’s need for substantial
protection against personal liability in order to enhance the Indemnitee’s
continued service to the Company in an effective manner, and in part to provide
the Indemnitee with specific contractual assurance that all protections
permitted by the Act will be available to the Indemnitee, the Company wishes to
provide in this Agreement for the indemnification of and the advancing of
expenses to the Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement; and



         WHEREAS, the Board of Directors of the Company wishes to provide the
Indemnitee with rights to indemnification to the fullest extent permitted by
the Act and as set forth in this Agreement and has approved this agreement for
the purposes of the Act, including for the purpose of obligating the Company in
advance of any act or omission giving rise to a proceeding to provide
indemnification;



         NOW, THEREFORE, in consideration of the premises and of the Indemnitee
continuing to serve the Company directly or, at its request, another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:



     1.    Basic Indemnification Arrangement.



         (a)    In accordance with the provisions of the Act, the Company shall, to
the extent legally permissible, indemnify the Indemnitee against all
liabilities and expenses, including amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and attorneys’ fees or other costs
paid or incurred by the Indemnitee in connection with the defense or
disposition of any threatened, pending or completed action, suit or other
proceeding, whether civil,



 









 






criminal, administrative, arbitrative or investigative and whether formal
or informal, in which the Indemnitee may be involved or with which the
Indemnitee was, is or is threatened to be made, while in office or thereafter,
a defendant or respondent by reason of the Indemnitee being or having been a
director of the Company.



         (b)    If so requested by the Indemnitee, the Company shall advance (within
five business days of such request) any and all expenses, including attorneys’
fees or other costs, paid or incurred by the Indemnitee in connection with the
defense or disposition of any such action, suit or other proceeding
(“Expenses”), to the Indemnitee (an “Expense Advance”) upon receipt by the
Company of (i) a written affirmation of the Indemnitee’s good faith belief that
he has met the relevant standard of conduct described in the Act or any
successor provision of Massachusetts law or that the proceeding involves
conduct for which liability has been eliminated under a provision of the
Company’s restated articles of organization, as amended, as authorized by the
Act or any successor provision of Massachusetts law, and (ii) a written
undertaking by the Indemnitee to repay the Expense Advance if it is ultimately
determined that the Indemnitee is not entitled to indemnification in accordance
with the provisions of the Act or any successor thereto.



     2.    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 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
recovery, as the case may be. If requested by the Indemnitee, the Company
shall promptly advance (but in no event more than five business days after
receiving such request) any such expenses to the Indemnitee.



     3.    Partial Indemnity, Etc. If the Indemnitee is entitled under any
provision of this Agreement to indemnification or payment by the Company for
some or a portion of the Expenses, judgments, fines, penalties and amounts paid
in settlement of any threatened, pending or completed action, suit or
proceeding but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify or pay the Indemnitee for the portion thereof to
which the Indemnitee is entitled.



     4.    Nonexclusivity, Etc. The rights of the Indemnitee hereunder
shall be in addition to any other rights the Indemnitee may have under the
Company’s By-Laws or the Act or otherwise. To the extent that a change in the
Act (whether by statute or judicial decision) permits greater indemnification
by agreement than would be afforded currently under the Company’s By-Laws or
this Agreement, it is the intent of the parties hereto that the Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change.



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     5.    Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors’ and officers’ liability
insurance, the Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer.



     6.    Amendments, Etc. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.



     7.    Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.



     8.    No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any claim made
against the Indemnitee in connection with any threatened, pending or completed
action, suit or proceeding to the extent the Indemnitee has otherwise actually
received payment (under any insurance policy, By-law or otherwise) of the
amounts otherwise indemnifiable hereunder.



     9.    Notice. All notices, requests, consents or other communications
under this Agreement shall be delivered by hand or sent by registered or
certified mail, return receipt requested, or by overnight prepaid courier, or
by facsimile (receipt confirmed) to:



	 	 	 	 	 
	 

	 	if to the Company:
	 	EMC Corporation

176 South Street

Hopkinton, MA 01748

Attention: Office of the General Counsel

Facsimile: (508) 497-6915
	 
	 	 	 	 
	

	 	if to the Indemnitee:
	 	[NAME

ADDRESS]






All such notices, requests, consents and other communications shall be deemed
to have been duly delivered and received three (3) days following the date on
which mailed, or one (1) day following the date mailed if sent by overnight
courier, or on the date on which delivery by hand or by facsimile transmission.



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     10.    Binding Effect, Etc. This Agreement shall be effective as of
the Effective Date and shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, executors and personal and legal representatives.
This Agreement shall continue in effect regardless of whether the Indemnitee
continues to serve as an officer or director of the Company or of any other
enterprise at the Company’s request.



     11.    Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable in any
respect, and the validity and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired and shall remain enforceable to the fullest extent permitted by law.



     12.    Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts applicable to contracts made and to be performed in such state
without giving effect to the principles of conflicts of laws.



 



 



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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.


	 	 	 	 	 
	 	EMC CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	  	 	 
	 	[NAME]	 
	 	 	 
	 





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