exv10w1






Exhibit 10.1




INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (this “Agreement”) is made and entered into, effective                     , by
and between Dell Inc., a Delaware corporation (the “Company”), and                                          (“Indemnitee”).



Recitals





	A.	 	Competent and experienced persons are reluctant to serve or to continue to serve as directors
or officers of corporations unless they are provided with adequate protection through
insurance or indemnification (or both) against claims against them arising out of their
service and activities as directors.
	 
	B.	 	Uncertainties relating to the availability of adequate insurance for directors and officers
have increased the difficulty for corporations to attract and retain competent and experienced
persons to serve as directors or officers.
	 
	C.	 	The Board of Directors of the Company (the “Board”) has determined that the continuation of
present trends in litigation will make it more difficult to attract and retain competent and
experienced persons to serve as directors or officers of the Company and, in some cases, of
its subsidiaries, that this situation is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure its directors and officers that there
will be increased certainty of adequate protection in the future.
	 
	D.	 	It is reasonable, prudent and necessary for the Company to obligate itself contractually to
indemnify its directors and officers to the fullest extent permitted by applicable law in
order to induce them to serve or continue to serve as directors or officers of the Company or
its subsidiaries.
	 
	E.	 	Indemnitee’s willingness to continue to serve in his or her current capacity is predicated,
in substantial part, upon the Company’s willingness to indemnify him or her to the fullest
extent permitted by the laws of the State of Delaware and upon the other undertakings set
forth in this Agreement.
	 
	F.	 	In recognition of the need to provide Indemnitee with substantial protection against personal
liability, in order to procure Indemnitee’s continued service, and to enhance Indemnitee’s
ability to serve the Company in an effective manner, and in order to provide such protection
pursuant to express contract rights (intended to be enforceable irrespective of any amendment
to the Company’s Certificate of Incorporation or Bylaws (collectively, the “Constituent
Documents”), any Change of Control (as defined in Section 1(a)) or any change in the
composition of the Board), the Company wishes to provide in this Agreement for the
indemnification of and the advancement of Expenses (as defined in Section 1(c)) to Indemnitee
as set forth in this Agreement.




 









 










Now, therefore, for and in consideration of the foregoing premises, Indemnitee’s agreement to
continue to serve the Company in his or her current capacity and the mutual covenants and
agreements contained herein, the parties hereby agree as follows:





	1.	 	Certain Definitions — In addition to terms defined elsewhere herein, the following terms
shall have the respective meanings indicated below when used in this Agreement:






	 	(a)	 	“Change of Control” shall mean the occurrence of any of the following events:






	 	(i)	 	The acquisition after the date of this Agreement by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 (the “Exchange Act”)) (a “Person”) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 15% or more of either the then outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”) or the combined voting power of
the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this paragraph (i), the following
acquisitions shall not constitute a Change of Control:






	 	(A)	 	Any acquisition directly from the Company or any
Controlled Affiliate of the Company;
	 
	 	(B)	 	Any acquisition by the Company or any Controlled
Affiliate of the Company;
	 
	 	(C)	 	Any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any Controlled
Affiliate of the Company;
	 
	 	(D)	 	Any acquisition by Mr. Michael S. Dell, his
Affiliates or Associates (as such terms are defined in Rule 12b-2
promulgated under the Exchange Act), his heirs or any trust or foundation
to which he has transferred or may transfer Outstanding Company Common
Stock or Outstanding Company Voting Securities; or
	 
	 	(E)	 	Any acquisition by any entity or its security holders
pursuant to a transaction that complies with clauses (A), (B), and (C) of
paragraph (iii) below;






	 	(ii)	 	Individuals who, as of the date of this Agreement, constitute the
Board (collectively, the “Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board; provided,





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	 	 	 	however, that any
individual who becomes a director of the Company subsequent to the date of this
Agreement and whose election or appointment by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least a
majority of the then Incumbent Directors, shall be considered as an Incumbent
Director, unless such individual’s initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
	 
	 	(iii)	 	Consummation of a reorganization, merger, consolidation, sale or
other disposition of all or substantially all the assets of the Company or an
acquisition of assets of another corporation (a “Business Combination”), unless,
in each case, following such Business Combination (A) all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business Combination (including a
corporation that as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be,
(B) no Person (excluding any employee benefit plan (or related trust) of the
Company or the corporation resulting from such Business Combination and any
Person referred to in clause (D) of paragraph (i) above) beneficially owns,
directly or indirectly, 15% or more of, respectively, the then outstanding
            shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership of the
Company existed prior to the Business Combination and (C) at least a majority
of the members of the board of directors of the corporation resulting from such
Business Combination were Incumbent Directors at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
	 
	 	(iv)	 	Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.





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	 	(b)	 	“Claim” shall mean (i) any threatened, asserted, pending or completed claim,
demand, action, suit or proceeding (including any cross claim or counterclaim in any
action, suit or proceeding), whether civil, criminal, administrative, arbitrative,
investigative or other and whether made pursuant to federal, state or other law
(including securities laws); and (ii) any inquiry or investigation (including
discovery), whether made, instituted or conducted by the Company or any other party,
including any federal, state or other governmental entity, that Indemnitee in good faith
believes might lead to the institution of any such claim, demand, action, suit or
proceeding.
	 
	 	(c)	 	“Controlled Affiliate” shall mean any corporation, limited liability company,
partnership, joint venture, trust or other entity or enterprise, whether or not for
profit, that is directly or indirectly controlled by the Company. For purposes of this
definition, the term “control” shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of an entity or
enterprise, whether through the ownership of voting securities, through other voting
rights, by contract or otherwise; provided, however, that direct or indirect beneficial
ownership of capital stock or other interests in an entity or enterprise entitling the
holder to cast 20% or more of the total number of votes generally entitled to be cast in
the election of directors (or persons performing comparable functions) of such entity or
enterprise shall be deemed to constitute “control” for purposes of this definition.
	 
	 	(d)	 	“Disinterested Director” shall mean a director of the Company who is not and was
not a party to the Claim with respect to which indemnification is sought by Indemnitee.
	 
	 	(e)	 	“Expenses” shall mean all costs, expenses (including attorneys’ and experts’ fees
and expenses) and obligations paid or incurred in connection with investigating,
defending (including affirmative defenses and counterclaims), being a witness in or
participating in (including on appeal), or preparing to investigate, defend, be a
witness in or participate in (including on appeal), any Claim relating to an
Indemnifiable Claim.
	 
	 	(f)	 	“Indemnifiable Claim” shall mean any Claim based upon, arising out of or
resulting from any of the following:






	 	(i)	 	Any actual, alleged or suspected act or failure to act by
Indemnitee in his or her capacity as a director or officer of the Company or as a
director, officer, employee, member, manager, trustee, fiduciary or agent
(collectively, a “Representative”)of any Controlled Affiliate or other
corporation, limited liability company, partnership, joint venture, employee
benefit plan, trust or other entity or enterprise, whether or not for profit, as
to which Indemnitee is or was serving at the request of the Company as a
Representative;




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	 	(ii)	 	Any actual, alleged or suspected act or failure to act by
Indemnitee with respect to any business, transaction, communication, filing,
disclosure or other activity of the Company or any other entity or enterprise
referred to in clause (i) of this Section 1(f); or
	 
	 	(iii)	 	Indemnitee’s status as a current or former director or officer of
the Company or as a current or former Representative of the Company or any other
entity or enterprise referred to in clause (i) of this Section 1(f) or any
actual, alleged or suspected act or failure to act by Indemnitee in connection
with any obligation or restriction imposed upon Indemnitee by reason of such
status.






	 	 	 	In addition to any service at the actual request of the Company, for purposes of this
Agreement, Indemnitee shall be deemed to be serving or to have served at the request
of the Company as a Representative of another entity or enterprise if Indemnitee is or
was serving as a director, officer, employee, member, manager, trustee, fiduciary,
agent or employee of such entity or enterprise and (A) such entity or enterprise is or
at the time of such service was a Controlled Affiliate, (B) such entity or enterprise
is or at the time of such service was an employee benefit plan (or related trust)
sponsored or maintained by the Company or a Controlled Affiliate or (C) the Company or
a Controlled Affiliate directly or indirectly caused Indemnitee to be nominated,
elected, appointed, designated, employed, engaged or selected to serve in such
capacity.
	 
	 	(g)	 	“Indemnifiable Losses” shall mean any and all Losses relating to, arising out of
or resulting from any Indemnifiable Claim.
	 
	 	(h)	 	“Independent Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and, as of the time of selection with respect
to any Indemnifiable Claim, is not nor in the past five years has been, retained to
represent (i) the Company or Indemnitee in any matter material to either such party
(other than with respect to matters concerning Indemnitee under this Agreement or other
indemnitees under similar indemnification agreements) or (ii) any other party to the
Indemnifiable Claim giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “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 Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.
	 
	 	(i)	 	“Losses” means any and all Expenses, damages (including punitive, exemplary and
the multiplied portion of any damages), losses, liabilities, judgments, payments, fines,
penalties (whether civil, criminal or other), awards and amounts paid in settlement
(including all interest, assessments and other charges paid or incurred in connection
with or with respect to any of the foregoing).





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	2.	 	Indemnification Obligation — Subject to Section 7, the Company shall indemnify, defend and
hold harmless Indemnitee, to the fullest extent permitted by the laws of the State of Delaware
in effect on the date hereof or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification, against any and all Indemnifiable Claims
and Indemnifiable Losses; provided, however, that, except as provided in Sections 4 and 21,
Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection
with any Claim initiated by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the initiation of such Claim.
	 
	3.	 	Advancement of Expenses — Indemnitee shall have the right to advancement by the Company prior
to the final disposition of any Indemnifiable Claim of any and all Expenses relating to,
arising out of or resulting from any Indemnifiable Claim paid or incurred by Indemnitee or
which Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee.
Indemnitee’s right to such advancement is not subject to the satisfaction of any standard of
conduct. Without limiting the generality or effect of the foregoing, within five business
days after any request by Indemnitee, the Company shall, in accordance with such request (but
without duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee
funds in an amount sufficient to pay such Expenses or (c) reimburse Indemnitee for such
Expenses; provided, however, that Indemnitee shall repay, without interest, any amounts
actually advanced to Indemnitee that, at the final disposition of the Indemnifiable Claim to
which the advance related, were in excess of amounts paid or incurred by Indemnitee with
respect to Expenses relating to, arising out of or resulting from such Indemnifiable Claim.
In connection with any such payment, advancement or reimbursement, Indemnitee shall execute
and deliver to the Company an undertaking, which need not be secured and shall be accepted
without reference to Indemnitee’s ability to repay the Expenses, by or on behalf of
Indemnitee, to repay any amounts paid, advanced or reimbursed by the 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





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	 	 	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, arising out of or resulting
from such Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct
Determination (as defined in paragraph (b) below) shall be required.
	 
	 	(b)	 	To the extent that the provisions of Section 7(a) are inapplicable to an
Indemnifiable Claim that shall have been finally disposed of, any determination of
whether Indemnitee has satisfied any applicable standard of conduct under Delaware law
that is a legally required





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	 	 	 	condition precedent to indemnification of Indemnitee
hereunder against Indemnifiable Losses relating to, arising out of or resulting from
such Indemnifiable Claim (a “Standard of Conduct Determination”) shall be made as
follows:






	 	(i)	 	If a Change of Control has not occurred, or if a Change of Control
has occurred but Indemnitee has requested that the Standard of Conduct
Determination be made pursuant to this clause (i):






	 	(A)	 	By a majority vote of the Disinterested Directors,
even if less than a quorum of the Board;
	 
	 	(B)	 	If such Disinterested Directors so direct, by a
majority vote of a committee of Disinterested Directors designated by a
majority vote of all Disinterested Directors; or
	 
	 	(C)	 	If there are no such Disinterested Directors, by
Independent Counsel in a written opinion addressed to the Board, a copy of
which shall be delivered to Indemnitee; and






	 	(ii)	 	If a Change of Control has occurred and Indemnitee has not
requested that the Standard of Conduct Determination be made pursuant to
clause (i) above, by
Independent Counsel in a written opinion addressed to the Board, a copy of
which shall be delivered to Indemnitee.






	 	 	 	Indemnitee will cooperate with the person or persons making such Standard of Conduct
Determination, including providing to such person or persons, upon reasonable advance
request, any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. 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 costs and expenses (including attorneys’ and experts’ fees and expenses)
incurred by Indemnitee in so cooperating with the person making such Standard of
Conduct Determination.
	 
	 	(c)	 	The Company shall use its reasonable best efforts to cause any Standard of
Conduct Determination required under Section 7(b) to be made as promptly as practicable.
If (i) the person or persons empowered or selected under Section 7(b) to make the
Standard of Conduct Determination shall not have made a determination within 30 days
after the later of (A) receipt by the Company of written notice from Indemnitee advising
the Company of the final disposition of the applicable Indemnifiable Claim (the date of
such receipt being the “Notification Date”) and (B) the selection of an Independent
Counsel, if such determination is to be made by Independent Counsel, that is permitted





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	 	 	 	under the provisions of Section 7(e) to make such determination and (ii) Indemnitee
shall have fulfilled his or her obligations set forth in the second sentence of
Section 7(b), then Indemnitee shall be deemed to have satisfied the applicable standard
of conduct; provided, however, that such 30-day period may be extended for a reasonable
time, not to exceed an additional 30 days, if the person making such determination in
good faith requires such additional time to obtain or evaluate documentation or
information relating thereto.
	 
	 	(d)	 	If (i) Indemnitee shall be entitled to indemnification hereunder against any
Indemnifiable Losses pursuant to Section 7(a), (ii) no determination of whether
Indemnitee has satisfied any applicable standard of conduct under Delaware law is a
legally required condition precedent to indemnification of Indemnitee hereunder against
any Indemnifiable Losses or (iii) Indemnitee has been determined or deemed pursuant to
Section 7(b) or (c) to have satisfied any applicable standard of conduct under Delaware
law that is a legally required condition precedent to indemnification of Indemnitee
hereunder against any Indemnifiable Losses, then the Company shall pay to Indemnitee,
within five business days after the later of (x) the Notification Date with respect to
the Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are
related, out of which such Indemnifiable Losses arose or from which such Indemnifiable
Losses resulted and (y) the earliest date on which the applicable criterion specified in
clause (i), (ii) or (iii) above shall have been satisfied, an amount equal to the amount
of such Indemnifiable Losses.
	 
	 	(e)	 	If a Standard of Conduct Determination is to be made by Independent Counsel
pursuant to Section 7(b)(i), the Independent Counsel shall be selected by the Board and
the Company shall give written notice to Indemnitee advising him or her of the identity
of the Independent Counsel so selected. If a Standard of Conduct Determination is to be
made by Independent Counsel pursuant to Section 7(b)(ii), the Independent Counsel shall
be selected by Indemnitee and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either case,
Indemnitee or the Company, as applicable, may, within five business days after
receiving written notice of selection from the other, deliver to the other a written
objection to such selection; provided, however, that such objection may be asserted
only on the ground that the Independent Counsel so selected does not satisfy the
criteria set forth in the definition of “Independent Counsel” in Section 1(h) and the
objection shall set forth with particularity the factual basis of such assertion.
Absent a proper and timely objection, the person or firm so selected shall act as
Independent Counsel. If such written objection is properly and timely made and
substantiated, (i) the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined that
such objection is without merit and (ii) the non-objecting party may, at its option,
select an





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	 	 	 	alternative Independent Counsel and give written notice to the other party
advising such other party of the identity of the alternative Independent Counsel so
selected, in which case the provisions of the two immediately preceding sentences and
clause (i) of this sentence shall apply to such subsequent selection and notice. If
applicable, the provisions of clause (ii) of the immediately preceding sentence shall
apply to successive alternative selections. If no Independent Counsel that is
permitted under the foregoing provisions of this Section 7(e) to make the Standard of
Conduct Determination shall have been selected within 30 days after the Company gives
its initial notice pursuant to the first sentence of this Section 7(e) or Indemnitee
gives its initial notice pursuant to the second sentence of this Section 7(e), as the
case may be, either the Company or Indemnitee may petition the Court of Chancery of
the State of Delaware for resolution of any objection that has been made by the
Company or Indemnitee to the other’s selection of Independent Counsel or for the
appointment as Independent Counsel of a person selected by the Court or by such other
person as the Court shall designate, and the person or firm with respect to whom all
objections are so resolved or the person or firm so appointed will act as Independent
Counsel. In all events, the Company shall pay all of the reasonable fees and expenses
of the Independent Counsel incurred in connection with the Independent Counsel’s
determination pursuant to Section 7(b).






	8.	 	Presumption of Entitlement — In making any Standard of Conduct Determination, the person or
persons making such determination shall presume that Indemnitee has satisfied the applicable
standard of conduct, and the Company may overcome such presumption only by its adducing clear
and convincing evidence to the contrary. Any Standard of Conduct Determination that is
adverse to Indemnitee may be challenged by Indemnitee in the Court of Chancery of the State of
Delaware. No determination by the Company (including by its directors or any Independent
Counsel) that Indemnitee has not satisfied any applicable standard of conduct shall be a
defense to any Claim by Indemnitee for indemnification or reimbursement or advance payment of
Expenses by the Company hereunder or create a presumption that Indemnitee has not met any
applicable standard of conduct.
	 
	9.	 	No Other Presumption — For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere or its equivalent, or an entry of an order of probation prior to
judgment, shall not create a presumption that Indemnitee did not meet any applicable standard
of conduct or that indemnification hereunder is otherwise not permitted.
	 
	10.	 	Non-Exclusivity — The rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Constituent Documents, the substantive laws of the State of
Delaware, any other contract or otherwise (collectively, “Other Indemnity Provisions”);
provided, however, that (a) to the extent that Indemnitee otherwise would have any greater
right to





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	 	 	indemnification under any Other Indemnity Provision, Indemnitee shall be deemed to
have such greater right hereunder and (b) to the extent that any change is made to any Other
Indemnity Provision that permits any greater right to indemnification than that
provided under this Agreement as of the date hereof, Indemnitee shall be deemed to have such
greater right hereunder. The Company shall not adopt any amendment to any of the Constituent
Documents the effect of which would be to deny, diminish or encumber Indemnitee’s right to
indemnification under this Agreement or any Other Indemnity Provision.
	 
	11.	 	Liability Insurance and Funding — For the duration of Indemnitee’s service as a director or
of the Company and thereafter for so long as Indemnitee shall be subject to any pending or
possible Indemnifiable Claim, to the extent the Company maintains policies of directors’ and
officers’ liability insurance providing coverage for directors and officers of the Company,
Indemnitee shall be covered by such policies, in accordance with their terms, to the maximum
extent of the coverage available for any other director or officer of the Company. Upon
request of Indemnitee, the Company shall provide Indemnitee with a copy of all directors’ and
officers’ liability insurance applications, binders, policies, declarations, endorsements and
other related materials and shall provide Indemnitee with a reasonable opportunity to review
and comment on the same. Without limiting the generality or effect of the two immediately
preceding sentences, no discontinuation or significant reduction in the scope or amount of
coverage from one policy period to the next shall be effective (a) without the prior approval
thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (b) if
at the time that any such discontinuation or significant reduction in the scope or amount of
coverage is proposed there are no Incumbent Directors, without the prior written consent of
Indemnitee (which consent shall not be unreasonably withheld or delayed). In all policies of
directors’ and officers’ liability insurance obtained by the Company, Indemnitee shall be
named as an insured in such a manner as to provide Indemnitee the same rights and benefits,
subject to the same limitations, as are accorded to the Company’s directors and officers most
favorably insured by such policy. The Company may, but shall not be required to, create a
trust fund, grant a security interest or use other means, including a letter of credit, to
ensure the payment of such amounts as may be necessary to satisfy its obligations to indemnify
and advance expenses pursuant to this Agreement.
	 
	12.	 	Subrogation — In the event of payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the related rights of recovery of Indemnitee against
other persons or entities (other than Indemnitee’s successors), including any entity or
enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in
Section 1(f). Indemnitee shall execute all papers reasonably required to evidence such rights
(all of Indemnitee’s reasonable Expenses, including attorneys’ fees and charges, related
thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Company).
	 
	13.	 	No Duplication of Payments — The Company shall not be liable under this Agreement to make any
payment to Indemnitee with respect to any





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	 	 	Indemnifiable Losses to the extent Indemnitee has
otherwise actually received payment (net of Expenses incurred in connection therewith) under
any insurance policy, the Constituent Documents or Other Indemnity Provisions or otherwise
(including from any entity or enterprise referred to in clause (i) of the definition of
“Indemnifiable Claim” in Section 1(f)) with respect to such Indemnifiable Losses otherwise
indemnifiable hereunder.
	 
	14.	 	Defense of Claims — The Company shall be entitled to participate in the defense of any
Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee; provided, however, that if Indemnitee believes, after consultation with counsel
selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent
Indemnitee would present such counsel with an actual or potential conflict, (b) the named
parties in any such Indemnifiable Claim (including any impleaded parties) include both the
Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal
defenses available to him or her that are different from or in addition to those available to
the
Company or (c) any such representation by such counsel would be precluded under the
applicable standards of professional conduct then prevailing, then Indemnitee shall be
entitled to retain separate counsel (but not more than one law firm plus, if applicable,
local counsel with respect to any particular Indemnifiable Claim) at the Company’s expense.
The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in
settlement of any threatened or pending Indemnifiable Claim effected without the Company’s
prior written consent. The Company shall not, without the prior written consent of
Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim that
Indemnitee is or could have been a party unless such settlement solely involves the payment
of money and includes a complete and unconditional release of Indemnitee from all liability
on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company
nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided,
however, that Indemnitee may withhold consent to any settlement that does not provide a
complete and unconditional release of Indemnitee.
	 
	15.	 	Successors and Binding Agreement —






	 	(a)	 	The Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) to all or substantially all the
business or assets of the Company, by agreement in form and substance satisfactory to
Indemnitee and his or her counsel, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent the Company would be required to
perform if no such succession had taken place. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor to the Company, including any
person acquiring directly or indirectly all or substantially all the business or assets
of the Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor will thereafter be deemed the “Company” for purposes of this





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	 	 	 	Agreement), but shall not otherwise be assignable or delegatable by the Company.
	 
	 	(b)	 	This Agreement shall inure to the benefit of and be enforceable by Indemnitee’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, legatees and other successors.
	 
	 	(c)	 	This Agreement is personal in nature and neither of the parties hereto shall,
without the consent of the other, assign or delegate this Agreement or any rights or
obligations hereunder except as expressly provided in Sections 15(a) and 15(b). Without
limiting the generality or effect of the foregoing, Indemnitee’s right to receive
payments hereunder shall not be assignable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer by Indemnitee’s will or by the laws of
descent and distribution, and in the event of any attempted assignment or transfer
contrary to this Section 15(c), the Company shall have no liability to pay any amount so
attempted to be assigned or transferred.






	16.	 	Notices — For all purposes of this Agreement, all communications, including notices,
consents, requests or approvals, required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed), or five business
days after having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid or one business day after having been sent for next-day delivery by
a nationally recognized overnight courier service, addressed to the Company (to the attention
of the Secretary of the Company) and to Indemnitee at the addresses shown on the signature
page hereto, or to such other address as any party may have furnished to the other in writing
and in
accordance herewith, except that notices of changes of address will be effective only upon
receipt.
	 
	17.	 	Governing Law — The validity, interpretation, construction and performance of this Agreement
shall be governed by and construed in accordance with the substantive laws of the State of
Delaware, without giving effect to the principles of conflict of laws of such State. The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the Chancery
Court of the State of Delaware for all purposes in connection with any action or proceeding
that arises out of or relates to this Agreement and agree that any action instituted under
this Agreement shall be brought only in the Chancery Court of the State of Delaware.
	 
	18.	 	Validity — If any provision of this Agreement or the application of any provision hereof to
any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder
of this Agreement and the application of such provision to any other person or circumstance
shall not be affected, and the provision so held to be invalid, unenforceable or
otherwise
illegal shall be reformed to the extent, and only to the extent, necessary to make it
enforceable, valid or legal. In the event that any court or other adjudicative body shall
decline to reform any provision of this Agreement held to be invalid, unenforceable or





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	 	 	otherwise illegal as contemplated by the immediately preceding sentence, the parties thereto
shall take all such action as may be necessary or appropriate to replace the provision so held
to be invalid, unenforceable or otherwise illegal with one or more alternative provisions that
effectuate the purpose and intent of the original provisions of this Agreement as fully as
possible without being invalid, unenforceable or otherwise illegal.
	 
	19.	 	Amendments; Waivers — No provision of this Agreement may be amended, modified, waived or
discharged unless such amendment, modification, waiver or discharge is agreed to in writing
signed by Indemnitee and the Company. No waiver by either party hereto at any time of any
breach by the other party hereto or compliance with any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent time.
	 
	20.	 	Complete Agreement — No agreements or representations, oral or otherwise, expressed or
implied with respect to the subject matter hereof have been made by either party that are not
set forth expressly in this Agreement.
	 
	21.	 	Legal Fees and Expenses — It is the intent of the Company that Indemnitee not be required to
incur legal fees or other Expenses associated with the interpretation, enforcement or defense
of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to be extended to
Indemnitee hereunder. Accordingly, without limiting the generality or effect of any other
provision hereof, if it should appear to Indemnitee that the Company has failed to comply with
any of its obligations under this Agreement or in the event that the Company or any other
person takes or threatens to take any action to declare this Agreement void or unenforceable
or institutes any litigation or other action or proceeding designed to deny, or to recover
from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, the
Company irrevocably authorizes Indemnitee from time to time to retain counsel of Indemnitee’s
choice, at the expense of the Company as hereafter provided, to advise and represent
Indemnitee in connection with any such interpretation, enforcement or defense, including the
initiation or defense of any litigation or other legal action, whether by or against the
Company or any director, officer, stockholder or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between
the Company and such counsel, the Company irrevocably consents to Indemnitee’s entering into
an attorney-client relationship with such counsel, and in that connection the Company
and Indemnitee agree that a confidential relationship shall exist between Indemnitee and such
counsel. Without respect to whether Indemnitee prevails, in whole or in part, in connection
with any of the foregoing, the Company will pay and be solely financially responsible for any
and all attorneys’ and related fees and expenses incurred by Indemnitee in connection with
any of the foregoing.





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	22.	 	Certain Interpretive Matters —






	 	(a)	 	No provision of this Agreement shall be interpreted in favor of, or against,
either of the parties hereto by reason of the extent to which any such party or its
counsel participated in the drafting thereof or by reason of the extent to which any
such provision is inconsistent with any prior draft hereof or thereof.
	 
	 	(b)	 	It is the Company’s intention and desire that the provisions of this Agreement be
construed liberally, subject to their express terms, to maximize the protections to be
provided to Indemnitee hereunder.
	 
	 	(c)	 	All references in this Agreement to Sections, paragraphs, clauses and other
subdivisions refer to the corresponding Sections, paragraphs, clauses and other
subdivisions of this Agreement unless expressly provided otherwise. Titles appearing at
the beginning of any Sections, subsections or other subdivisions of this Agreement are
for convenience only, do not constitute any part of such Sections, subsections or other
subdivisions and shall be disregarded in construing the language contained in such
subdivisions. The words “this Agreement,” “herein,” “hereby,” “hereunder,” and
“hereof,” and words of similar import, refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The word “or” is not exclusive, and
the word “including” (in its various forms) means “including without limitation.”
Pronouns in masculine, feminine or neuter genders shall be construed to state and
include any other gender, and words, terms and titles (including terms defined herein)
in the singular form shall be construed to include the plural and vice versa, unless the
context otherwise expressly requires.






	23.	 	Counterparts — This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original but all of which together shall constitute one and the same
agreement.





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In witness whereof, Indemnitee has executed, and the Company has caused its duly authorized
representative to execute, this Agreement as of the date first above written.




	 	 	 	 	 	 	 	 	 
	DELL INC.	 	 	 	INDEMNITEE	 	 
	 
	 	 	 	 	 	 	 	 
	Address:

	One Dell Way

	 	 	 	Address:	 	 
	 

	 	Round Rock, Texas 78682	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Facsimile: 512-728-3773	 	 	 	Facsimile:	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 

	 

Lawrence P. Tu
	 	 	 	 

	 	 
	 

	Senior Vice President, General	 	 	 	 	 	 
	 

	Counsel and Secretary	 	 	 	 	 	 






Form Adopted by the Board of Directors on June 3, 2009




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