{"id":38298,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1998-employee-stock-purchase-plan-exodus-communications-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1998-employee-stock-purchase-plan-exodus-communications-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1998-employee-stock-purchase-plan-exodus-communications-inc.html","title":{"rendered":"1998 Employee Stock Purchase Plan &#8211; Exodus Communications Inc."},"content":{"rendered":"<pre>\n                          EXODUS COMMUNICATIONS, INC.\n                                        \n                       1998 EMPLOYEE STOCK PURCHASE PLAN\n\n                         As Adopted January 15, 1998\n\n\n     1.   ESTABLISHMENT OF PLAN.  Exodus Communications, Inc. (the 'COMPANY')\nproposes to grant options for purchase of the Company's Common Stock to eligible\nemployees of the Company and its Participating Subsidiaries (as hereinafter\ndefined) pursuant to this Employee Stock Purchase Plan (this 'PLAN'). For\npurposes of this Plan, 'PARENT CORPORATION' and 'SUBSIDIARY' (collectively,\n'PARTICIPATING SUBSIDIARIES') shall have the same meanings as 'parent\ncorporation' and 'subsidiary corporation' in Sections 424(e) and 424(f),\nrespectively, of the Internal Revenue Code of 1986, as amended (the 'CODE').\n'PARTICIPATING SUBSIDIARIES' are Parent Corporations or Subsidiaries that the\nBoard of Directors of the Company (the 'BOARD') designates from time to time as\ncorporations that shall participate in this Plan. The Company intends this Plan\nto qualify as an 'employee stock purchase plan' under Section 423 of the Code\n(including any amendments to or replacements of such Section), and this Plan\nshall be so construed. Any term not expressly defined in this Plan but defined\nfor purposes of Section 423 of the Code shall have the same definition herein. A\ntotal of 600,000 shares of the Company's Common Stock is reserved for issuance\nunder this Plan. Such number shall be subject to adjustments effected in\naccordance with Section 14 of this Plan.\n\n     2.   PURPOSE.  The purpose of this Plan is to provide eligible employees of\nthe Company and Participating Subsidiaries with a convenient means of acquiring\nan equity interest in the Company through payroll deductions, to enhance such\nemployees' sense of participation in the affairs of the Company and\nParticipating Subsidiaries, and to provide an incentive for continued\nemployment.\n\n     3.   ADMINISTRATION.  This Plan shall be administered by the Compensation\nCommittee of the Board (the 'COMMITTEE'). Subject to the provisions of this Plan\nand the limitations of Section 423 of the Code or any successor provision in the\nCode, all questions of interpretation or application of this Plan shall be\ndetermined by the Committee and its decisions shall be final and binding upon\nall participants. Members of the Committee shall receive no compensation for\ntheir services in connection with the administration of this Plan, other than\nstandard fees as established from time to time by the Board for services\nrendered by Board members serving on Board committees. All expenses incurred in\nconnection with the administration of this Plan shall be paid by the Company.\n\n     4.   ELIGIBILITY.  Any employee of the Company or the Participating\nSubsidiaries is eligible to participate in an Offering Period (as hereinafter\ndefined) under this Plan except the following:\n\n          (a)  employees who are customarily employed for twenty (20) hours or\nless per week;\n\n          (b)  employees who are customarily employed for five (5) months or\nless in a calendar year;\n\n          (c)  employees who, together with any other person whose stock would\nbe attributed to such employee pursuant to Section 424(d) of the Code, own stock\nor hold options to purchase stock possessing five percent (5%) or more of the\ntotal combined voting power or value of all classes of stock of the Company or\nany of its Participating Subsidiaries or who, as a result of being granted an\noption under this Plan with respect to such Offering Period, would own stock or\nhold options to purchase stock possessing five percent (5%) or more of the total\ncombined voting power or value of all classes of stock of the Company or any of\nits Participating Subsidiaries; and\n\n          (d)  individuals who provide services to the Company or any of its\nParticipating Subsidiaries as independent contractors who are reclassified as\ncommon law employees for any reason except for federal income and employment tax\n                                    ------ ---                                  \npurposes.\n\n     5.   Offering Dates.  The offering periods of this Plan (each, an 'OFFERING\nPERIOD') shall be of twenty-four (24) months duration commencing on May 1 and\nNovember 1 of each year and ending on April 30 and October 31 of each year;\nprovided, however, that notwithstanding the foregoing, the first such Offering\n--------  -------                                                             \nPeriod shall commence \n\n                                      -1-\n\n \n                                                     Exodus Communications, Inc.\n                                               1998 Employee Stock Purchase Plan\n\non the first business day on which price quotations for the Company's Common\nStock are available on the Nasdaq National Market (the 'FIRST OFFERING DATE')\nand shall end on April 30, 2000. Each Offering Period shall consist of four (4)\nsix month purchase periods (individually, a 'PURCHASE PERIOD') during which\npayroll deductions of the participants are accumulated under this Plan. The\nfirst Offering Period shall consist of no more than five and no fewer than three\nPurchase Periods, any of which may be greater or less than six months as\ndetermined by the Committee. The first business day of each Offering Period is\nreferred to as the 'OFFERING DATE'. The last business day of each Purchase\nPeriod is referred to as the 'PURCHASE DATE'. The Committee shall have the power\nto change the duration of Offering Periods with respect to offerings without\nstockholder approval if such change is announced at least fifteen (15) days\nprior to the scheduled beginning of the first Offering Period to be affected.\n\n     6.   PARTICIPATION IN THIS PLAN. Eligible employees may become participants\nin an Offering Period under this Plan on the first Offering Date after\nsatisfying the eligibility requirements by delivering a subscription agreement\nto the Company's treasury department (the 'TREASURY DEPARTMENT') not later than\nfive (5) days before such Offering Date. Notwithstanding the foregoing, the\nCommittee may set a later time for filing the subscription agreement authorizing\npayroll deductions for all eligible employees with respect to a given Offering\nPeriod. An eligible employee who does not deliver a subscription agreement to\nthe Treasury Department by such date after becoming eligible to participate in\nsuch Offering Period shall not participate in that Offering Period or any\nsubsequent Offering Period unless such employee enrolls in this Plan by filing a\nsubscription agreement with the Treasury Department not later than five (5) days\npreceding a subsequent Offering Date. Once an employee becomes a participant in\nan Offering Period, such employee will automatically participate in the Offering\nPeriod commencing immediately following the last day of the prior Offering\nPeriod unless the employee withdraws or is deemed to withdraw from this Plan or\nterminates further participation in the Offering Period as set forth in Section\n11 below. Such participant is not required to file any additional subscription\nagreement in order to continue participation in this Plan.\n\n     7.   GRANT OF OPTION ON ENROLLMENT.  Enrollment by an eligible employee in\nthis Plan with respect to an Offering Period will constitute the grant (as of\nthe Offering Date) by the Company to such employee of an option to purchase on\nthe Purchase Date up to that number of shares of Common Stock of the Company\ndetermined by dividing (a) the amount accumulated in such employee's payroll\ndeduction account during such Purchase Period by (b) the lower of (i) eighty-\nfive percent (85%) of the fair market value of a share of the Company's Common\nStock on the Offering Date (but in no event less than the par value of a share\nof the Company's Common Stock), or (ii) eighty-five percent (85%) of the fair\nmarket value of a share of the Company's Common Stock on the Purchase Date (but\nin no event less than the par value of a share of the Company's Common Stock),\nprovided, however, that the number of shares of the Company's Common Stock \n--------  -------                                                          \nsubject to any option granted pursuant to this Plan shall not exceed the lesser\nof (x) the maximum number of shares set by the Committee pursuant to Section\n10(c) below with respect to the applicable Purchase Date, or (y) the maximum\nnumber of shares which may be purchased pursuant to Section 10(b) below with\nrespect to the applicable Purchase Date. The fair market value of a share of the\nCompany's Common Stock shall be determined as provided in Section 8 below.\n\n     8.   PURCHASE PRICE.  The purchase price per share at which a share of\nCommon Stock will be sold in any Offering Period shall be eighty-five percent\n(85%) of the lesser of:\n\n          (a)  The fair market value on the Offering Date; or\n\n          (b)  The fair market value on the Purchase Date.\n\n          For purposes of this Plan, the term 'FAIR MARKET VALUE' means, as of\nany date, the value of a share of the Company's Common Stock determined as\nfollows:\n\n               (a)  if such Common Stock is then quoted on the Nasdaq National\n                    Market, its closing price on the Nasdaq National Market on\n                    the date of determination as reported in The Wall Street\n                                                             ---------------\n                    Journal;\n                    -------\n\n               (b)  if such Common Stock is publicly traded and is then listed\n                    on a national securities exchange, its closing price on the\n                    date of determination on the principal national securities\n\n                                      -2-\n\n \n                                                     Exodus Communications, Inc.\n                                               1998 Employee Stock Purchase Plan\n\n                    exchange on which the Common Stock is listed or admitted to\n                    trading as reported in The Wall Street Journal;\n                                           ----------------------- \n\n               (c)  if such Common Stock is publicly traded but is not quoted on\n                    the Nasdaq National Market nor listed or admitted to trading\n                    on a national securities exchange, the average of the\n                    closing bid and asked prices on the date of determination as\n                    reported in The Wall Street Journal; or\n                                -----------------------    \n\n               (d)  if none of the foregoing is applicable, by the Board in good\n                    faith, which in the case of the First Offering Date will be\n                    the price per share at which shares of the Company's Common\n                    Stock are initially offered for sale to the public by the\n                    Company's underwriters in the initial public offering of the\n                    Company's Common Stock pursuant to a registration statement\n                    filed with the Securities and Exchange Commission (the\n                    'SEC') under the Securities Act of 1933, as amended (the\n                    'SECURITIES ACT').\n\n     9.   PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF\nSHARES.\n\n          (a)  The purchase price of the shares is accumulated by regular\npayroll deductions made during each Offering Period. The deductions are made as\na percentage of the participant's compensation in one percent (1%) increments\nnot less than two percent (2%), nor greater than ten percent (10%) or such lower\nlimit set by the Committee. Compensation shall mean base salary not to exceed\n$250,000 per calendar year, provided however, that for purposes of determining a\nparticipant's compensation, any election by such participant to reduce his or\nher regular cash remuneration under Sections 125 or 401(k) of the Code shall be\ntreated as if the participant did not make such election. Payroll deductions\nshall commence on the first payday of the Offering Period and shall continue to\nthe end of the Offering Period unless sooner altered or terminated as provided\nin this Plan.\n\n          (b)  A participant may decrease or increase the rate of payroll\ndeductions during an Offering Period by filing with the Treasury Department a\nnew authorization for payroll deductions, in which case the new rate shall\nbecome effective for the next payroll period commencing more than fifteen (15)\ndays after the Treasury Department's receipt of the authorization and shall\ncontinue for the remainder of the Offering Period unless changed as described\nbelow. Such change in the rate of payroll deductions may be made at any time\nduring an Offering Period, but not more than one (1) change may be made\neffective during any Offering Period. A participant may increase or decrease the\nrate of payroll deductions for any subsequent Offering Period by filing with the\nTreasury Department a new authorization for payroll deductions not later than\nfifteen (15) days before the beginning of such Offering Period.\n\n          (c)  All payroll deductions made for a participant are credited to his\nor her account under this Plan and are deposited with the general funds of the\nCompany. No interest accrues on the payroll deductions. All payroll deductions\nreceived or held by the Company may be used by the Company for any corporate\npurpose, and the Company shall not be obligated to segregate such payroll\ndeductions.\n\n          (d)  On each Purchase Date, so long as this Plan remains in effect and\nprovided that the participant has not submitted a signed and completed\nwithdrawal form before that date which notifies the Company that the participant\nwishes to withdraw from that Offering Period under this Plan and have all\npayroll deductions accumulated in the account maintained on behalf of the\nparticipant as of that date returned to the participant, the Company shall apply\nthe funds then in the participant's account to the purchase of whole shares of\nCommon Stock reserved under the option granted to such participant with respect\nto the Offering Period to the extent that such option is exercisable on the\nPurchase Date. The purchase price per share shall be as specified in Section 8\nof this Plan. Any cash remaining in a participant's account after such purchase\nof shares shall be refunded to such participant in cash, without interest;\nprovided, however that any amount remaining in such participant's account on a\nPurchase Date which is less than the amount necessary to purchase a full share\nof Common Stock of the Company shall be carried forward, without interest, into\nthe next Purchase Period or Offering Period, as the case may be. In the event\nthat this Plan has been oversubscribed, all funds not used to purchase shares on\nthe Purchase Date shall be returned to the participant, without interest. No\nCommon Stock shall be purchased on a Purchase Date on behalf of any employee\nwhose participation in this Plan has terminated prior to such Purchase Date.\n\n                                      -3-\n\n \n                                                     Exodus Communications, Inc.\n                                               1998 Employee Stock Purchase Plan\n\n          (e)  As promptly as practicable after the Purchase Date, the Company\nshall issue shares for the participant's benefit representing the shares\npurchased upon exercise of his or her option.\n\n          (f)  During a participant's lifetime, his or her option to purchase\nshares hereunder is exercisable only by him or her. The participant will have no\ninterest or voting right in shares covered by his or her option until such\noption has been exercised.\n\n     10.  LIMITATIONS ON SHARES TO BE PURCHASED.\n\n          (a)  No participant shall be entitled to purchase stock under this\nPlan at a rate which, when aggregated with his or her rights to purchase stock\nunder all other employee stock purchase plans of the Company or any Subsidiary,\nexceeds $25,000 in fair market value, determined as of the Offering Date (or\nsuch other limit as may be imposed by the Code) for each calendar year in which\nthe employee participates in this Plan. The Company shall automatically suspend\nthe payroll deductions of any participant as necessary to enforce such limit\nprovided that when the Company automatically resumes such payroll deductions,\nthe Company must apply the rate in effect immediately prior to such suspension.\n\n          (b)  No more than two hundred percent (200%) of the number of shares\ndetermined by using eighty-five percent (85%) of the fair market value of a\nshare of the Company's Common Stock on the Offering Date as the denominator may\nbe purchased by a participant on any single Purchase Date.\n\n          (c)  No participant shall be entitled to purchase more than the\nMaximum Share Amount (as defined below) on any single Purchase Date. The maximum\nnumber of shares which may be purchased by any employee at any single Purchase\nDate (hereinafter the 'MAXIMUM SHARE AMOUNT') shall be 1,000, until otherwise\ndetermined by the Committee not less than thirty (30) days prior to the\ncommencement of any Offering Period. In no event shall the Maximum Share Amount\nexceed the amounts permitted under Section 10(b) above. If a new Maximum Share\nAmount is set, then all participants must be notified of such Maximum Share\nAmount prior to the commencement of the next Offering Period. The Maximum Share\nAmount shall continue to apply with respect to all succeeding Purchase Dates and\nOffering Periods unless revised by the Committee as set forth above.\n\n          (d)  If the number of shares to be purchased on a Purchase Date by all\nemployees participating in this Plan exceeds the number of shares then available\nfor issuance under this Plan, then the Company will make a pro rata allocation\nof the remaining shares in as uniform a manner as shall be reasonably\npracticable and as the Committee shall determine to be equitable. In such event,\nthe Company shall give written notice of such reduction of the number of shares\nto be purchased under a participant's option to each participant affected.\n\n          (e)  Any payroll deductions accumulated in a participant's account\nwhich are not used to purchase stock due to the limitations in this Section 10\nshall be returned to the participant as soon as practicable after the end of the\napplicable Purchase Period, without interest.\n\n     11.  WITHDRAWAL.\n\n          (a)  Each participant may withdraw from an Offering Period under this\nPlan by signing and delivering to the Treasury Department a written notice to\nthat effect on a form provided for such purpose. Such withdrawal may be elected\nat any time at least fifteen (15) days prior to the end of an Offering Period.\n\n          (b)  Upon withdrawal from this Plan, the accumulated payroll\ndeductions shall be returned to the withdrawn participant, without interest, and\nhis or her interest in this Plan shall terminate. In the event a participant\nvoluntarily elects to withdraw from this Plan, he or she may not resume his or\nher participation in this Plan during the same Offering Period, but he or she\nmay participate in any Offering Period under this Plan which commences on a date\nsubsequent to such withdrawal by filing a new authorization for payroll\ndeductions in the same manner as set forth in Section 6 above for initial\nparticipation in this Plan.\n\n                                      -4-\n\n \n                                                     Exodus Communications, Inc.\n                                               1998 Employee Stock Purchase Plan\n\n          (c)  If the Fair Market Value on the first day of the current Offering\nPeriod in which a participant is enrolled is higher than the Fair Market Value\non the first day of any subsequent Offering Period, the Company will\nautomatically enroll such participant in the subsequent Offering Period. Except\nwith respect to the first Offering Period, any funds accumulated in a\nparticipant's account prior to the first day of such subsequent Offering Period\nwill be applied to the purchase of shares on the Purchase Date immediately prior\nto the first day of such subsequent Offering Period. In the event that the Fair\nMarket Value on the First Offering Date is higher than the Fair Market Value on\nthe first day of the second Offering Period, any funds accumulated in a\nparticipant's account prior to the first day of the second Offering Period will\nbe applied to the purchase of shares on the Purchase Date next following the\nfirst day of such second Offering Period. A participant does not need to file\nany forms with the Company to automatically be enrolled in the subsequent\nOffering Period.\n\n     12.  TERMINATION OF EMPLOYMENT.  Termination of a participant's employment\nfor any reason, including retirement, death or the failure of a participant to\nremain an eligible employee of the Company or of a Participating Subsidiary,\nimmediately terminates his or her participation in this Plan. In such event, the\npayroll deductions credited to the participant's account will be returned to him\nor her or, in the case of his or her death, to his or her legal representative,\nwithout interest. For purposes of this Section 12, an employee will not be\ndeemed to have terminated employment or failed to remain in the continuous\nemploy of the Company or of a Participating Subsidiary in the case of sick\nleave, military leave, or any other leave of absence approved by the Board;\nprovided that such leave is for a period of not more than ninety (90) days or\n--------                                                                     \nreemployment upon the expiration of such leave is guaranteed by contract or\nstatute.\n\n     13.  RETURN OF PAYROLL DEDUCTIONS.  In the event a participant's interest\nin this Plan is terminated by withdrawal, termination of employment or\notherwise, or in the event this Plan is terminated by the Board, the Company\nshall deliver to the participant all payroll deductions credited to such\nparticipant's account. No interest shall accrue on the payroll deductions of a\nparticipant in this Plan.\n\n     14.  CAPITAL CHANGES.  Subject to any required action by the stockholders\nof the Company, the number of shares of Common Stock covered by each option\nunder this Plan which has not yet been exercised and the number of shares of\nCommon Stock which have been authorized for issuance under this Plan but have\nnot yet been placed under option (collectively, the 'RESERVES'), as well as the\nprice per share of Common Stock covered by each option under this Plan which has\nnot yet been exercised, shall be proportionately adjusted for any increase or\ndecrease in the number of issued and outstanding shares of Common Stock of the\nCompany resulting from a stock split or the payment of a stock dividend (but\nonly on the Common Stock) or any other increase or decrease in the number of\nissued and outstanding shares of Common Stock effected without receipt of any\nconsideration by the Company; provided, however, that conversion of any\n                              --------  -------                        \nconvertible securities of the Company shall not be deemed to have been 'effected\nwithout receipt of consideration'. Such adjustment shall be made by the\nCommittee, whose determination shall be final, binding and conclusive. Except as\nexpressly provided herein, no issue by the Company of shares of stock of any\nclass, or securities convertible into shares of stock of any class, shall\naffect, and no adjustment by reason thereof shall be made with respect to, the\nnumber or price of shares of Common Stock subject to an option.\n\n     In the event of the proposed dissolution or liquidation of the Company, the\nOffering Period will terminate immediately prior to the consummation of such\nproposed action, unless otherwise provided by the Committee. The Committee may,\nin the exercise of its sole discretion in such instances, declare that this Plan\nshall terminate as of a date fixed by the Committee and give each participant\nthe right to purchase shares under this Plan prior to such termination. In the\nevent of (i) a merger or consolidation in which the Company is not the surviving\ncorporation (other than a merger or consolidation with a wholly-owned\nsubsidiary, a reincorporation of the Company in a different jurisdiction, or\nother transaction in which there is no substantial change in the stockholders of\nthe Company or their relative stock holdings and the options under this Plan are\nassumed, converted or replaced by the successor corporation, which assumption\nwill be binding on all participants), (ii) a merger in which the Company is the\nsurviving corporation but after which the stockholders of the Company\nimmediately prior to such merger (other than any stockholder that merges, or\nwhich owns or controls another corporation that merges, with the Company in such\nmerger) cease to own their shares or other equity interest in the Company, (iii)\nthe sale of all or substantially all of the assets of the Company or (iv) the\nacquisition, sale, or transfer of more than 50% of the outstanding shares of the\n\n                                      -5-\n\n \n                                                     Exodus Communications, Inc.\n                                               1998 Employee Stock Purchase Plan\n\nCompany by tender offer or similar transaction, the Plan will terminate\nimmediately prior to the consummation of such transaction, unless otherwise\nprovided by the Committee.\n\n     The Committee may, if it so determines in the exercise of its sole\ndiscretion, also make provision for adjusting the Reserves, as well as the price\nper share of Common Stock covered by each outstanding option, in the event that\nthe Company effects one or more reorganizations, recapitalizations, rights\nofferings or other increases or reductions of shares of its outstanding Common\nStock, or in the event of the Company being consolidated with or merged into any\nother corporation.\n\n     15.  NONASSIGNABILITY.  Neither payroll deductions credited to a\nparticipant's account nor any rights with regard to the exercise of an option or\nto receive shares under this Plan may be assigned, transferred, pledged or\notherwise disposed of in any way (other than by will, the laws of descent and\ndistribution or as provided in Section 22 below) by the participant. Any such\nattempt at assignment, transfer, pledge or other disposition shall be void and\nwithout effect.\n\n     16.  REPORTS.  Individual accounts will be maintained for each participant\nin this Plan. Each participant shall receive promptly after the end of each\nPurchase Period a report of his or her account setting forth the total payroll\ndeductions accumulated, the number of shares purchased, the per share price\nthereof and the remaining cash balance, if any, carried forward to the next\nPurchase Period or Offering Period, as the case may be.\n\n     17.  NOTICE OF DISPOSITION.  Each participant shall notify the Company in\nwriting if the participant disposes of any of the shares purchased in any\nOffering Period pursuant to this Plan if such disposition occurs within two (2)\nyears from the Offering Date or within one (1) year from the Purchase Date on\nwhich such shares were purchased (the 'NOTICE PERIOD'). The Company may, at any\ntime during the Notice Period, place a legend or legends on any certificate\nrepresenting shares acquired pursuant to this Plan requesting the Company's\ntransfer agent to notify the Company of any transfer of the shares. The\nobligation of the participant to provide such notice shall continue\nnotwithstanding the placement of any such legend on the certificates.\n\n     18.  NO RIGHTS TO CONTINUED EMPLOYMENT.  Neither this Plan nor the grant of\nany option hereunder shall confer any right on any employee to remain in the\nemploy of the Company or any Participating Subsidiary, or restrict the right of\nthe Company or any Participating Subsidiary to terminate such employee's\nemployment.\n\n     19.  EQUAL RIGHTS AND PRIVILEGES.  All eligible employees shall have equal\nrights and privileges with respect to this Plan so that this Plan qualifies as \nan 'employee stock purchase plan' within the meaning of Section 423 or any\nsuccessor provision of the Code and the related regulations. Any provision of\nthis Plan which is inconsistent with Section 423 or any successor provision of\nthe Code shall, without further act or amendment by the Company, the Committee\nor the Board, be reformed to comply with the requirements of Section 423. This\nSection 19 shall take precedence over all other provisions in this Plan.\n\n     20.  NOTICES.  All notices or other communications by a participant to the\nCompany under or in connection with this Plan shall be deemed to have been duly\ngiven when received in the form specified by the Company at the location, or by\nthe person, designated by the Company for the receipt thereof.\n\n     21.  TERM; STOCKHOLDER APPROVAL.  After this Plan is adopted by the Board,\nthis Plan will become effective on the First Offering Date (as defined above).\nThis Plan shall be approved by the stockholders of the Company, in any manner\npermitted by applicable corporate law, within twelve (12) months before or after\nthe date this Plan is adopted by the Board. No purchase of shares pursuant to\nthis Plan shall occur prior to such stockholder approval. This Plan shall\ncontinue until the earlier to occur of (a) termination of this Plan by the Board\n(which termination may be effected by the Board at any time), (b) issuance of\nall of the shares of Common Stock reserved for issuance under this Plan, or (c)\nten (10) years from the adoption of this Plan by the Board.\n\n     22.  DESIGNATION OF BENEFICIARY.\n\n                                      -6-\n\n \n                                                     Exodus Communications, Inc.\n                                               1998 Employee Stock Purchase Plan\n\n          (a)  A participant may file a written designation of a beneficiary who\nis to receive any shares and cash, if any, from the participant's account under\nthis Plan in the event of such participant's death subsequent to the end of an\nPurchase Period but prior to delivery to him of such shares and cash. In\naddition, a participant may file a written designation of a beneficiary who is\nto receive any cash from the participant's account under this Plan in the event\nof such participant's death prior to a Purchase Date.\n\n          (b)  Such designation of beneficiary may be changed by the participant\nat any time by written notice. In the event of the death of a participant and in\nthe absence of a beneficiary validly designated under this Plan who is living at\nthe time of such participant's death, the Company shall deliver such shares or\ncash to the executor or administrator of the estate of the participant, or if no\nsuch executor or administrator has been appointed (to the knowledge of the\nCompany), the Company, in its discretion, may deliver such shares or cash to the\nspouse or to any one or more dependents or relatives of the participant, or if\nno spouse, dependent or relative is known to the Company, then to such other\nperson as the Company may designate.\n\n     23.  CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES.\nShares shall not be issued with respect to an option unless the exercise of such\noption and the issuance and delivery of such shares pursuant thereto shall\ncomply with all applicable provisions of law, domestic or foreign, including,\nwithout limitation, the Securities Act, the Securities Exchange Act of 1934, as\namended, the rules and regulations promulgated thereunder, and the requirements\nof any stock exchange or automated quotation system upon which the shares may\nthen be listed, and shall be further subject to the approval of counsel for the\nCompany with respect to such compliance.\n\n     24.  APPLICABLE LAW.  The Plan shall be governed by the substantive laws\n(excluding the conflict of laws rules) of the State of California.\n\n     25.  AMENDMENT OR TERMINATION OF THIS PLAN.  The Board may at any time\namend, terminate or extend the term of this Plan, except that any such\ntermination cannot affect options previously granted under this Plan, nor may\nany amendment make any change in an option previously granted which would\nadversely affect the right of any participant, nor may any amendment be made\nwithout approval of the stockholders of the Company obtained in accordance with\nSection 21 above within twelve (12) months of the adoption of such amendment (or\nearlier if required by Section 21) if such amendment would:\n\n          (a)  increase the number of shares that may be issued under this Plan;\nor\n\n          (b)  change the designation of the employees (or class of employees)\neligible for participation in this Plan.\n\n                                      -7-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7490],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9545],"class_list":["post-38298","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-exodus-communications-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__esp"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38298","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38298"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38298"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38298"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38298"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}