{"id":39143,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-exodus-communications-inc-and-william-m.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-exodus-communications-inc-and-william-m","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-exodus-communications-inc-and-william-m.html","title":{"rendered":"Employment Agreement &#8211; Exodus Communications Inc. and William M. Austin"},"content":{"rendered":"<pre>\n[EXODUS LOGO]\nExodus Communications, Inc.\n2831 Mission College Boulevard\nSanta Clara, CA 95054-1838\n408-346-2200\n\n\nJuly 12, 2001\n\nMr. William M. Austin\n1 Brompton Court\nHouston, TX 77024\n\n\nDear Bill:\n\nI am pleased to extend to you an offer as Executive Vice President, Finance and\nChief Financial Officer of Exodus Communications, Inc. (the \"Company\"). The\nterms of your employment that we discussed on the phone are set forth in this\nletter and Attachment A to this letter. You will also be eligible to participate\n           ------------\nin our health and dental insurance, 401K, employee stock purchase plan and other\nemployee benefits established by the Company.\n\nAs an employee of the Company, you will have access to certain Company\nconfidential information and you may, during the course of your employment,\ndevelopment certain information or inventions, which will become the property of\nthe Company. You will need to sign the attached \"Employee Invention Assignment\nand Confidentiality Agreement\" and \"Procedures and Guidelines Governing\nSecurities Trades by Company Personnel\" as conditions of your employment. We\nwish to impress upon you that we do not wish you to bring any confidential or\nproprietary material of any former employer or to violate any other obligation\nto your former employers. Also, you represent that you are not subject to any\nrestrictions that prevent you from working for the Company.\n\nYour employment is conditioned upon you passing our background investigation\nand providing verification of your eligibility for employment in the U.S., which\nmeets the requirements of the U.S. Department of Justice.\n\nWe look forward to your becoming a part of the Exodus team. Please confirm your\nacceptance of this offer at the earliest possible date, but in any event no\nlater than Wednesday, July 18, 2001. Also, please fax a copy of your signed\noffer letter (both\n\n\nExodus Confidential Information\n\n\n\n                                                                  William Austin\n                                                                    Offer Letter\n                                                                   July 12, 2001\n                                                                          Page 2\n\n\n[EXODUS LOGO]\nExodus Communications, Inc.\n2831 Mission College Boulevard\nSanta Clara, CA 95054-1838\n408-346-2200\n\n\npages) and the two attachments to my attention at (408) 884-6400 (confidential\nfax number). You should keep the originals for your records. This offer expires\nat 5:00 Pacific time on July 18, 2001.\n\nYour signature will acknowledge that you have read, understood and agreed to the\nterms and conditions set forth in this letter and Attachment A.\n\nSincerely,\n\n\/s\/ Grace de Latour\nGrade de Latour\nExecutive Vice President, Human Resources\n\nI HAVE READ AND I UNDERSTAND THE TERMS OF THE OFFER SET FORTH ABOVE AND IN\nATTACHMENT A. AS INDICATED BY MY SIGNATURE BELOW, I ACCEPT THE OFFER AS STATED\nHEREIN. NO FURTHER COMMITMENTS WERE MADE TO ME AS A CONDITION OF EMPLOYMENT.\n\n\/s\/ William M. Austin\n-------------------------------\nWilliam M. Austin\n\nDate:    7\/15\/01\n      -------------------------\n\n\n\n\n\n\n\nExodus Confidential Information\n\n\n\n                                  Attachment A\n--------------------------------------------------------------------------------\nEmployee:               William M. Austin\n--------------------------------------------------------------------------------\nTitle:                  Executive Vice President, Finance and Chief Financial\n                        Officer of Exodus Communications, Inc. (the \"Company\"),\n                        reporting to the Company's CEO.\n--------------------------------------------------------------------------------\nPrimary                 Employee's primary working office shall initially be\nOffice:                 an office established by him in the Houston, Texas\n                        area. Following the date on which Employee relocates his\n                        residence to California, which shall be no later than\n                        January 15, 2002, his primary working office shall be\n                        the Company's headquarters in Santa Clara, California.\n--------------------------------------------------------------------------------\nAnnual                  Base Salary: Employee's initial base salary will be\nCompensation:           $33,333.33 per month, payable bi-weekly, which is\n                        equivalent to $400,000 per year.\n                        Initial Bonus: $400,000 guaranteed and paid quarterly\n                        during the first year of employment. Thereafter,\n                        Employee shall be eligible to receive an annual target\n                        bonus equal to 100% of Employee's base salary, subject\n                        to the Company meeting certain business objectives.\n--------------------------------------------------------------------------------\nEquity                  Options to purchase two million (2,000,000) shares of\nCompensation:           the Company's common stock (the \"Stock Options\"). The\n                        Stock Options will be issued at an exercise price equal\n                        to the fair market value of Exodus common stock on the\n                        first day of Employee's employment with the Company. The\n                        Stock Options will become vested with respect to two\n                        percent (2%) of the number of shares granted per month\n                        starting on Employee's first date of employment until\n                        such time as the Stock Options become fully vested as to\n                        all of the shares. The vested Stock Options will become\n                        exercisable starting six (6) months after the Employee's\n                        first day of employment. The Stock Options shall be\n                        issued pursuant to the Company's 1998 Equity Incentive\n                        Plan and form of stock option agreement that\n                        incorporates the terms set forth above.\n\n--------------------------------------------------------------------------------\nReal Estate             The Company will loan to Employee an amount up to\nand Relocation          $3.5 million to assist Employee with the purchase of a\nAssistance:             new residence in the San Francisco Bay Area (the \"New\n                        Residence\"). The loan amount shall not exceed the\n                        purchase price of the New Residence. The loan will be\n                        issued pursuant to the terms of a full recourse\n                        promissory note (the \"Note\") and will be secured by the\n                        Employee's real property in California (including\n                        principal residence) and Company securities held by\n                        Employee. The Note will have a term of four (4) years\n                        and a single balloon payment at the end of the term.\n                        There will be no interest charged on the Note and the\n                        Company will draft the Note documentation so as to\n                        permit these arrangements to qualify as an \"employee\n                        relocation loan\" under Treas. Reg. 1.7872-5(c)(i). In\n                        the event the Note cannot qualify at the time it is\n                        issued as an \"employee relocation loan,\" then, for so\n                        long as Employee is employed by the Company, the Company\n                        will reimburse Employee for interest expense on the\n                        Note. The Company will also reimburse Employee for\n                        actual reasonable closing costs on the purchase of the\n                        New Residence. The Company will not gross up the closing\n                        costs or, if applicable, interest expense. The Note will\n                        become due and payable within 45 days of the last day of\n                        Employee's employment if Employee's employment with the\n                        Company is terminated by Employee (other than an\n                        \"Involuntary Termination\" as defined below) or\n                        terminated by the Company for Cause (as defined below).\n\n                        The Company will engage and pay for a third party\n                        company to provide Employee with assistance with the\n                        sale and purchase of his residences. This company will\n                        also provide relocation assistance, including packing\n                        and unpacking of personal possessions and moving of\n                        possessions.\n\n                        Employee may decide to delay the relocation of his\n                        family to California until his high school aged child\n                        can be enrolled in a school reasonably acceptable to\n                        Employee. In the event of such delay, the Company will\n                        cover for Employee the reasonable costs of an apartment\n                        or condominium and a leased automobile for up to six (6)\n                        months.\n--------------------------------------------------------------------------------\n\n\nAustin Terms of Offer of Employment (071301 v3)\nExodus Confidential Information\n\n                                                                          1 of 3\n\n\n\n                                  Attachment A\n\n--------------------------------------------------------------------------------\nChange in               In the event Employee's employment with the Company is\nControl;                terminated by Employee due to an Involuntary\nTermination of          Termination or by the Company other than for Cause,\nEmployment;             Employee shall be entitled to receive his base salary,\nContinued               100% of annual target bonus, and benefits for a period\nBenefits:               of twenty-four (24) months from the date of\n                        termination. In addition, in the event Employee's\n                        employment with the Company is terminated by the Company\n                        without Cause during the first six months of his\n                        employment, he shall be entitled to exercise the number\n                        of shares that are vested as of his last day of\n                        employment.\n\n                        In the event of a Change in Control (as defined below)\n                        and Employee's employment with the Company is terminated\n                        by Employee due to an Involuntary Termination or by the\n                        Company other than for Cause within twelve (12) months\n                        of the effective date of such Change in Control,\n                        Employee shall be entitled to the following benefits:\n\n                        1. Base salary, 100% of annual target bonus and benefits\n                        for a period of twenty-four (24) months from the date of\n                        termination;\n                        2. Employee's Stock Options that have not vested as of\n                        the date of employment termination shall become fully\n                        vested as of such date; and\n                        3. A cash bonus in the approximate amount of the Note\n                        principal.\n\n                        The Company's obligation to pay any of the continued\n                        compensation or benefits described in this section shall\n                        be subject to Employee signing a full settlement and\n                        release and non-competition agreement with the Company.\n\n                        In the event Employee's employment with the Company is\n                        terminated by Employee other than under circumstances\n                        that qualify as an Involuntary Termination, or is\n                        terminated by Company for Cause, Employee shall not be\n                        entitled the receive from the Company any compensation\n                        or benefits following such termination.\n--------------------------------------------------------------------------------\nDefinitions:            The term \"Change in Control\" means the occurrence of\n                        any of the following events: (i) a merger or\n                        consolidation involving the Company in which the\n                        shareholders of the company immediately prior to such\n                        merger or consolidation own less than fifty percent of\n                        the voting power of the surviving corporation; (ii) the\n                        sale of all or substantially all, of the assets of the\n                        Company; or (iii) any person or group (as defined in the\n                        Securities Exchange Act of 1934, as amended) becoming\n                        the beneficial owner (within the meaning of Rule 13d-3\n                        of the Securities Exchange Act of 1934, as amended),\n                        directly or indirectly, of securities representing more\n                        than fifty percent of the voting power of the Company\n                        then outstanding.\n\n                        The term \"Involuntary Termination\" means termination of\n                        Employee's employment with the Company by Employee\n                        within sixty (60) days after the occurrence of one or\n                        more of the following events: (i) a material reduction\n                        in the Employee's job title, position within the Company\n                        and\/or responsibilities; (ii) any material reduction in\n                        Employee's base salary or any material reduction in\n                        benefits; or (iii) a written directive from the CEO of\n                        the Company that the Employee relocate to an office\n                        located more than a fifty (50) mile radius from the\n                        Company's headquarters.\n\n                        The term \"Cause\" means Employee: (i) takes willful\n                        action made in bad faith that results in material damage\n                        or harm to the Company; (ii) refuses or fails to act in\n                        accordance with any specific, legal direction or order\n                        of the CEO or the Board; (iii) is convicted of a crime\n                        involving dishonesty, breach of trust, or physical or\n                        emotional harm to any person; (iv) has repeated\n                        unexplained or unjustified absences from the Company; or\n                        (v) breaches any material term of any agreement between\n                        Employee and the Company; provided that Employee shall\n                        be notified of any circumstances that may give rise to a\n                        termination for Cause and shall be given at least ten\n                        (10) business days from receipt of such notice to cure\n                        such circumstances, if the circumstances may be cured.\n--------------------------------------------------------------------------------\n\n                        Austin Terms of Offer of Employment (071301 v3)\n                        Exodus Confidential Information\n\n\n\n                                  Attachment A\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\nAustin Terms of Offer of Employment (071301 v3)\nExodus Confidential Information\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":[9539,9544],"class_list":["post-39143","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__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39143","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=39143"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39143"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39143"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39143"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}