{"id":40801,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-exodus-communications-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-exodus-communications-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-exodus-communications-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Exodus Communications Inc."},"content":{"rendered":"<pre>\n                           INDEMNIFICATION AGREEMENT\n\n\n\n          THIS INDEMNIFICATION AGREEMENT (this 'Agreement') is entered into as\nof September ___, 1997, by and among Exodus Communications, Inc., a California\ncorporation (the 'Company') and each indemnitee ('Indemnitee') executing this\nAgreement.\n\n                                   RECITALS\n\n     A.   The Company and Indemnitee recognize the continued difficulty in\nobtaining liability insurance for its directors, officers, employees,\nshareholders, controlling persons, agents and fiduciaries, the significant\nincreases in the cost of such insurance and the general reductions in the\ncoverage of such insurance.\n\n     B.   The Company and Indemnitee further recognize the substantial increase\nin corporate litigation in general, subjecting directors, officers, employees,\ncontrolling persons, shareholders, agents and fiduciaries to expensive\nlitigation risks at the same time as the availability and coverage of liability\ninsurance has been severely limited.\n\n     C.   Indemnitee does not regard the current protection available as\nadequate under the present circumstances, and Indemnitee and other directors,\nofficers, employees, shareholders, controlling persons, agents and fiduciaries\nof the Company may not be willing to serve in such capacities without additional\nprotection.\n\n     D.   The Company (i) desires to attract and retain the involvement of\nhighly qualified individuals and entities, such as Indemnitee, to serve the\nCompany and, in part, in order to induce each Indemnitee to be involved with the\nCompany and (ii) wishes to provide for the indemnification and advancing of\nexpenses to each Indemnitee to the maximum extent permitted by law.\n\n     E.   In view of the considerations set forth above, the Company desires\nthat each Indemnitee be indemnified by the Company as set forth herein.\n\n          NOW, THEREFORE, the Company and each Indemnitee hereby agrees as\nfollows:\n\n          1.   Indemnification.\n               --------------- \n\n               a.   Indemnification of Expenses.  The Company shall indemnify \n                    ---------------------------                               \nand hold harmless each Indemnitee (including its respective directors, officers,\npartners, employees, agents and spouses) and each person who controls any of\nthem or who may be liable within the meaning of Section 15 of the Securities Act\nof 1933, as amended (the 'Securities Act'), or Section 20 of the Securities\nExchange Act of 1934, as amended (the 'Exchange Act'), to the\n\n \nfullest extent permitted by law if such Indemnitee was or is or becomes a party\nto or witness or other participant in, or is threatened to be made a party to or\nwitness or other participant in, any threatened, pending or completed action,\nsuit, proceeding or alternative dispute resolution mechanism, or any hearing,\ninquiry or investigation that such Indemnitee believes might lead to the\ninstitution of any such action, suit, proceeding or alternative dispute\nresolution mechanism, whether civil, criminal, administrative, investigative or\nother (hereinafter a 'Claim') by reason of (or arising in part or in whole out\nof) any event or occurrence related to the fact that Indemnitee is or was or may\nbe deemed a director, officer, shareholder, employee, controlling person, agent\nor fiduciary of the Company, or any subsidiary of the Company, or is or was or\nmay be deemed to be serving at the request of the Company as a director,\nofficer, shareholder, employee, controlling person, agent or fiduciary of\nanother corporation, partnership, limited liability company, joint venture,\ntrust or other enterprise, or by reason of any action or inaction on the part of\nsuch Indemnitee while serving in such capacity, including, without limitation,\nany and all losses, claims, damages, expenses and liabilities, joint or several\n(including any investigation, legal and other expenses incurred in connection\nwith, and any amount paid in settlement of, any action, suit, proceeding or any\nclaim asserted) under the Securities Act, the Exchange Act or other federal or\nstate statutory law or regulation, at common law or otherwise or which relate\ndirectly or indirectly to the registration, purchase, sale or ownership of any\nsecurities of the Company or to any fiduciary obligation owed with respect\nthereto or as a direct or indirect result of any Claim made by any shareholder\nof the Company against an Indemnitee and arising out of or related to any round\nof financing of the Company (including but not limited to Claims regarding non-\nparticipation, or non-pro rata participation, in such round by such\nshareholder), or made by a third party against an Indemnitee based on any\nmisstatement or omission of a material fact by the Company in violation of any\nduty of disclosure imposed on the Company by Federal or state securities or\ncommon laws (hereinafter an 'Indemnification Event') against any and all\nexpenses (including attorneys' fees and all other costs, expenses and\nobligations incurred in connection with investigating, defending a witness in or\nparticipating in (including on appeal), or preparing to defend, be a witness in\nor participate in, any such action, suit, proceeding, alternative dispute\nresolution mechanism, hearing, inquiry or investigation), judgments, fines,\npenalties and amounts paid in settlement (if, and only if, such settlement is\napproved in advance by the Company, which approval shall not be unreasonably\nwithheld) of such Claim and any federal, state, local or foreign taxes imposed\non Indemnitee as a result of the actual or deemed receipt of any payments under\nthis Agreement (collectively, hereinafter 'Expenses'), including all interest,\nassessments and other charges paid or payable in connection with or in respect\nof such Expenses.  Such payment of Expenses shall be made by the Company as soon\nas practicable but in any event no later than ten (10) days after written demand\nby the Indemnitee therefor is presented to the Company.\n\n               b.   Reviewing Party.  Notwithstanding the foregoing, (i) the \n                    ---------------                                          \nobligations of the Company under Section 1(a) shall be subject to the condition\nthat the Reviewing Party (as described in Section 10(e) hereof) shall not have\ndetermined (in a written opinion, in any case in which the Independent Legal\nCounsel referred to in Section 1(e) hereof is involved) that Indemnitee would\nnot be permitted to be indemnified under applicable law, and  \n\n                                       2\n\n \n(ii) and each Indemnitee acknowledges and agrees that the obligation of the\nCompany to make an advance payment of Expenses to Indemnitee pursuant to Section\n2(a) (an 'Expense Advance') shall be subject to the condition that, if, when and\nto the extent that the Reviewing Party determines that Indemnitee would not be\npermitted to be so indemnified under applicable law, the Company shall be\nentitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the\nCompany) for all such amounts theretofore paid; provided, however, that if\nIndemnitee has commenced or thereafter commences legal proceedings in a court of\ncompetent jurisdiction to secure a determination that Indemnitee should be\nindemnified under applicable law, any determination made by the Reviewing Party\nthat Indemnitee would not be permitted to be indemnified under applicable law\nshall not be binding and Indemnitee shall not be required to reimburse the\nCompany for any Expense Advance until a final judicial determination is made\nwith respect thereto (as to which all rights of appeal therefrom have been\nexhausted or lapsed). Indemnitee's obligation to reimburse the Company for any\nExpense Advance shall be unsecured and no interest shall be charged thereon. If\nthere has not been a Change in Control (as defined in Section 10(c) hereof), the\nReviewing Party shall be selected by the Board of Directors, and if there has\nbeen such a Change in Control (other than a Change in Control which has been\napproved by a majority of the Company's Board of Directors who were directors\nimmediately prior to such Change in Control), the Reviewing Party shall be the\nIndependent Legal Counsel referred to in Section 1(e) hereof. If there has been\nno determination by the Reviewing Party or if the Reviewing Party determines\nthat Indemnitee substantively would not be permitted to be indemnified in whole\nor in part under applicable law, Indemnitee shall have the right to commence\nlitigation seeking an initial determination by the court or challenging any such\ndetermination by the Reviewing Party or any aspect thereof, including the legal\nor factual bases therefor, and the Company hereby consents to service of process\nand to appear in any such proceeding. Any determination by the Reviewing Party\notherwise shall be conclusive and binding on the Company and Indemnitee.\n\n               c.   Contribution.  If the indemnification provided for in \n                    ------------                                          \nSection 1(a) above for any reason is held by a court of competent jurisdiction\nto be unavailable to an Indemnitee in respect of any losses, claims, damages,\nexpenses or liabilities referred to therein, then the Company, in lieu of\nindemnifying such Indemnitee thereunder, shall contribute to the amount paid or\npayable by such Indemnitee as a result of such losses, claims, damages, expenses\nor liabilities (i) in such proportion as is appropriate to reflect the relative\nbenefits received by the Company and the Indemnitee, or (ii) if the allocation\nprovided by clause (i) above is not permitted by applicable law, in such\nproportion as is appropriate to reflect not only the relative benefits referred\nto in clause (i) above but also the relative fault of the Company and the\nIndemnitee in connection with the action or inaction which resulted in such\nlosses, claims, damages, expenses or liabilities, as well as any other relevant\nequitable considerations. In connection with the registration of the Company's\nsecurities, the relative benefits received by the Company and the Indemnitee\nshall be deemed to be in the same respective proportions that the net proceeds\nfrom the offering (before deducting expenses) received by the Company and the\nIndemnitee, in each case as set forth in the table on the cover page of the\napplicable prospectus, bear to the aggregate public offering price of the\nsecurities so offered.  The relative fault of the \n\n                                       3\n\n \nCompany and the Indemnitee shall be determined by reference to, among other\nthings, whether the untrue or alleged untrue statement of a material fact or the\nomission or alleged omission to state a material fact relates to information\nsupplied by the Company or the Indemnitee and the parties' relative intent,\nknowledge, access to information and opportunity to correct or prevent such\nstatement or omission.\n\n          The Company and the Indemnitee agree that it would not be just and\nequitable if contribution pursuant to this Section 1(c) were determined by pro\nrata or per capita allocation or by any other method of allocation which does\nnot take account of the equitable considerations referred to in the immediately\npreceding paragraph. In connection with the registration of the Company's\nsecurities, in no event shall Indemnitee be required to contribute any amount\nunder this Section 1(c) in excess of the lesser of (i) that proportion of the\ntotal of such losses, claims, damages or liabilities indemnified against equal\nto the proportion of the total securities sold under such registration statement\nwhich is being sold by such Indemnitee or (ii) the proceeds received by such\nIndemnitee from its sale of securities under such registration statement. No\nperson found guilty of fraudulent misrepresentation (within the meaning of\nSection 11(f) of the Securities Act) shall be entitled to contribution from any\nperson who was not found guilty of such fraudulent misrepresentation.\n\n               d.   Survival Regardless of Investigation.  The indemnification \n                    ------------------------------------                      \nand contribution provided for in this Section 1 will remain in full force and\neffect regardless of any investigation made by or on behalf of the Indemnitee or\nany officer, director, employee, agent or controlling person of the Indemnitee.\n\n               e.   Change in Control.  The Company agrees that if there is a \n                    -----------------                                         \nChange in Control of the Company (other than a Change in Control which has been\napproved by a majority of the Company's Board of Directors who were directors\nimmediately prior to such Change in Control) then, with respect to all matters\nthereafter arising concerning the rights of Indemnitee to payments of Expenses\nunder this Agreement or any other agreement or under the Company's Amended and\nRestated Articles of Incorporation (the 'Restated Articles') or Restated Bylaws\nas now or hereafter in effect, Independent Legal Counsel (as defined in Section\n10(d) hereof) shall be selected by the Indemnitee and approved by the Company\n(which approval shall not be unreasonably withheld). Such counsel, among other\nthings, shall render its written opinion to the Company and Indemnitee as to\nwhether and to what extent Indemnitee would be permitted to be indemnified under\napplicable law. The Company agrees to abide by such opinion and to pay the\nreasonable fees of the Independent Legal Counsel referred to above and to fully\nindemnify such counsel against any and all expenses (including attorneys' fees),\nclaims, liabilities and damages arising out of or relating to this Agreement or\nits engagement pursuant hereto.\n\n               f.   Mandatory Payment of Expenses.  Notwithstanding any other\n                    -----------------------------                             \nprovision of this Agreement, to the extent that Indemnitee has been successful\non the merits or otherwise, including, without limitation, the dismissal of an\naction without prejudice, in the defense of any action, suit, proceeding,\ninquiry or investigation referred to in Section 1(a) hereof \n\n                                       4\n\n \nor in the defense of any claim, issue or matter therein, each Indemnitee shall\nbe indemnified against all Expenses incurred by such Indemnitee in connection\nherewith.\n\n          2.   Expenses; Indemnification Procedure.\n               ----------------------------------- \n\n               a.   Advancement of Expenses.  The Company shall advance all\n                    -----------------------                            \nExpenses incurred by Indemnitee. The advances to be made hereunder shall be paid\nby the Company to Indemnitee as soon as practicable but in any event no later\nthan fifteen (15) days after written demand by such Indemnitee therefor to the \nCompany.\n\n               b.   Notice\/Cooperation by Indemnitee.  Indemnitee shall give the\n                    --------------------------------                    \nCompany notice as soon as practicable of any Claim made against Indemnitee for\nwhich indemnification will or could be sought under this Agreement. Notice to\nthe Company shall be directed to the Chief Executive Officer of the Company at\nthe address shown on the signature page of this Agreement (or such other address\nas the Company shall designate in writing to Indemnitee).\n\n               c.   No Presumptions; Burden of Proof.  For purposes of this\n                    --------------------------------                   \nAgreement, the termination of any Claim by judgment, order, settlement (whether\nwith or without court approval) or conviction, or upon a plea of nolo\n                                                                 ----\ncontendere, or its equivalent, shall not create a presumption that Indemnitee\n----------\ndid not meet any particular standard of conduct or have any particular belief or\nthat a court has determined that indemnification is not permitted by applicable\nlaw. In addition, neither the failure of the Reviewing Party to have made a\ndetermination as to whether Indemnitee has met any particular standard of\nconduct or had any particular belief, nor an actual determination by the\nReviewing Party that Indemnitee has not met such standard of conduct or did not\nhave such belief, prior to the commencement of legal proceedings by Indemnitee\nto secure a judicial determination that Indemnitee should be indemnified under\napplicable law, shall be a defense to Indemnitee's claim or create a presumption\nthat Indemnitee has not met any particular standard of conduct or did not have\nany particular belief. In connection with any determination by the Reviewing\nParty or otherwise as to whether Indemnitee is entitled to be indemnified\nhereunder, the burden of proof shall be on the Company to establish that\nIndemnitee is not so entitled.\n\n               d.   Notice to Insurers.  If, at the time of the receipt by the\n                    ------------------                                    \nCompany of a notice of a Claim pursuant to Section 2(b) hereof, the Company has\nliability insurance in effect which may cover such Claim, the Company shall give\nprompt written notice of the commencement of such Claim to the insurers in\naccordance with the procedures set forth in each of the policies. The Company\nshall thereafter take all necessary or desirable action to cause such insurers\nto pay, on behalf of Indemnitee, all amounts payable as a result of such action,\nsuit, proceeding, inquiry or investigation in accordance with the terms of such\npolicies.\n\n               e.   Selection of Counsel.  In the event the Company shall be\n                    --------------------                                 \nobligated hereunder to pay the Expenses of any Claim, the Company shall be\nentitled to assume the defense\n\n                                       5\n\n \nof such Claim, with counsel reasonably approved by the applicable Indemnitee,\nupon the delivery to such Indemnitee of written notice of its election to do so.\nAfter delivery of such notice, approval of such counsel by the Indemnitee and\nthe retention of such counsel by the Company, the Company will not be liable to\nsuch Indemnitee under this Agreement for any fees of counsel subsequently\nincurred by such Indemnitee with respect to the same Claim; provided that, (i)\n                                                            -------------\nthe Indemnitee shall have the right to employ such Indemnitee's counsel in any\nsuch Claim at the Indemnitee's expense; (ii) the Indemnitee shall have the right\nto employ his own counsel in connection with any such proceeding, at the expense\nof the Company, if such counsel serves in a review, observer, advice and\ncounseling capacity and does not otherwise materially control or participate in\nthe defense of such proceeding; and (iii) if (A) the employment of counsel by\nthe Indemnitee has been previously authorized by the Company, (B) such\nIndemnitee shall have reasonably concluded that there is a conflict of interest\nbetween the Company and such Indemnitee in the conduct of any such defense, or\n(C) the Company shall not continue to retain such counsel to defend such Claim,\nthen the fees and expenses of the Indemnitee's counsel shall be at the expense\nof the Company.\n\n          3.   Additional Indemnification Rights; Nonexclusivity.\n               ------------------------------------------------- \n\n               a.   Scope.  The Company hereby agrees to indemnify Indemnitee \n                    -----                                                    \nto the fullest extent permitted by law, even if such indemnification is not\nspecifically authorized by the other provisions of this Agreement or any other\nagreement, the Company's Articles of Incorporation, the Company's Bylaws or by\nstatute. In the event of any change after the date of this Agreement in any\napplicable law, statute or rule which expands the right of a California\ncorporation to indemnify a member of its Board of Directors or an officer,\nshareholder, employee, controlling person, agent or fiduciary, it is the intent\nof the parties hereto that Indemnitee shall enjoy by this Agreement the greater\nbenefits afforded by such change. In the event of any change in any applicable\nlaw, statute or rule which narrows the right of a California corporation to\nindemnify a member of its Board of Directors or an officer, employee, agent or\nfiduciary, such change, to the extent not otherwise required by such law,\nstatute or rule to be applied to this Agreement, shall have no effect on this\nAgreement or the parties' rights and obligations hereunder except as set forth\nin Section 8(a) hereof.\n\n               b.   Nonexclusivity.  The indemnification provided by this \n                    --------------                                        \nAgreement shall be in addition to any rights to which Indemnitee may be entitled\nunder the Company's Articles of Incorporation, its Bylaws, any agreement, any\nvote of shareholders or disinterested directors, the laws of the State of\nCalifornia, or otherwise. The indemnification provided under this Agreement\nshall continue as to each Indemnitee for any action such Indemnitee took or did\nnot take while serving in an indemnified capacity even though the Indemnitee may\nhave ceased to serve in such capacity and such indemnification shall inure to\nthe benefit of each Indemnitee from and after Indemnitee's first day of service\nas a director with the Company or affiliation with a Director from and after the\ndate such Director commences services as a director with the Company.\n\n          4.   No Duplication of Payments.  The Company shall not be liable \n               --------------------------                                  \nunder this \n\n                                       6\n\n \nAgreement to make any payment in connection with any Claim made against any\nIndemnitee to the extent such Indemnitee has otherwise actually received payment\n(under any insurance policy, Articles, Bylaws or otherwise) of the amounts\notherwise indemnifiable hereunder.\n\n          5.   Partial Indemnification.  If any Indemnitee is entitled under any\n               -----------------------                                          \nprovision of this Agreement to indemnification by the Company for any portion of\nExpenses incurred in connection with any Claim, but not, however, for all of the\ntotal amount thereof, the Company shall nevertheless indemnify Indemnitee for\nthe portion of such Expenses to which such Indemnitee is entitled.\n\n          6.   Mutual Acknowledgement.  The Company and each Indemnitee \n               ----------------------                                   \nacknowledge that in certain instances, Federal law or applicable public policy\nmay prohibit the Company from indemnifying its directors, officers, employees,\ncontrolling persons, agents or fiduciaries under this Agreement or otherwise.\n\n          7.   Liability Insurance.  Upon the approval of the Board of Directors\n               -------------------                                           \nof the Company, to the extent the Company maintains liability insurance\napplicable to directors, officers, employees, control persons, agents or\nfiduciaries, each Indemnitee shall be covered by such policies in such a manner\nas to provide Indemnitee the same rights and benefits as are accorded to the\nmost favorably insured of the Company's directors, if such Indemnitee is a\ndirector, or of the Company's officers, if such Indemnitee is not a director of\nthe Company but is an officer; or of the Company's key employees, controlling\npersons, agents or fiduciaries, if such Indemnitee is not an officer or director\nbut is a key employee, agent, control person, or fiduciary.\n\n          8.   Exceptions.  Any other provision herein to the contrary \n               ----------                                              \nnotwithstanding, the Company shall not be obligated pursuant to the terms of\nthis Agreement:\n\n               a.   Claims Initiated by Indemnitee.  To indemnify or advance \n                    ------------------------------                           \nexpenses to any Indemnitee with respect to Claims initiated or brought\nvoluntarily by such Indemnitee and not by way of defense, except (i) with\nrespect to actions or proceedings to establish or enforce a right to indemnify\nunder this Agreement or any other agreement or insurance policy or under the\nCompany's Articles or Bylaws now or hereafter in effect relating to Claims for\nIndemnifiable Events, (ii) in specific cases if the Board of Directors has\napproved the initiation or bringing of such Claim, or (iii) as otherwise\nrequired under California statute or law, regardless of whether such Indemnitee\nultimately is determined to be entitled to such indemnification, advance expense\npayment or insurance recovery, as the case may be; or\n\n               b.   Claims Under Section 16(b).  To indemnify any Indemnitee \n                    --------------------------                               \nfor expenses and the payment of profits arising from the purchase and sale by\nsuch Indemnitee of securities in violation of Section 16(b) of the Exchange Act\nor any similar successor statute; or\n\n                                       7\n\n \n               c.   Unlawful Indemnification.  To indemnify an Indemnitee if a\n                    ------------------------                                 \nfinal decision by a court having jurisdiction in the matter shall determine that\nsuch indemnification is not lawful.\n\n          9.   Period of Limitations.  No legal action shall be brought and no\n               ---------------------                                          \ncause of action shall be asserted by or in the right of the Company against any\nIndemnitee, any Indemnitee's estate, spouse, heirs, executors or personal or\nlegal representatives after the expiration of five (5) years from the date of\naccrual of such cause of action, and any claim or cause of action of the Company\nshall be extinguished and deemed released unless asserted by the timely filing\nof a legal action within such five (5) year period; provided, however, that if\n                                                    --------  -------         \nany shorter period of limitations is otherwise applicable to any such cause of\naction, such shorter period shall govern.\n\n          10.  Construction of Certain Phrases.\n               ------------------------------- \n\n               a.   For purposes of this Agreement, references to the 'Company'\nshall include, in addition to the resulting corporation, any constituent\ncorporation (including any constituent of a constituent) absorbed in a\nconsolidation or merger which, if its separate existence had continued, would\nhave had power and authority to indemnify its directors, officers, employees,\nagents or fiduciaries, so that if Indemnitee is or was or may be deemed a\ndirector, officer, employee, agent, control person, or fiduciary of such\nconstituent corporation, or is or was or may be deemed to be serving at the\nrequest of such constituent corporation as a director, officer, employee,\ncontrol person, agent or fiduciary of another corporation, partnership, joint\nventure, employee benefit plan, trust or other enterprise, each Indemnitee shall\nstand in the same position under the provisions of this Agreement with respect\nto the resulting or surviving corporation as each Indemnitee would have with\nrespect to such constituent corporation if its separate existence had continued.\n\n               b.   For purposes of this Agreement, references to 'other\nenterprises' shall include employee benefit plans; references to 'fines' shall\ninclude any excise taxes assessed on any Indemnitee with respect to an employee\nbenefit plan; and references to 'serving at the request of the Company' shall\ninclude any service as a director, officer, employee, agent or fiduciary of the\nCompany which imposes duties on, or involves services by, such director,\nofficer, employee, agent or fiduciary with respect to an employee benefit plan,\nits participants or its beneficiaries; and if any Indemnitee acted in good faith\nand in a manner such Indemnitee reasonably believed to be in the interest of the\nparticipants and beneficiaries of an employee benefit plan, such Indemnitee\nshall be deemed to have acted in a manner 'not opposed to the best interests of\nthe Company' as referred to in this Agreement.\n\n               c.   For purposes of this Agreement a 'Change in Control' shall\nbe deemed to have occurred if (i) any 'person' (as such term is used in Sections\n13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other\nfiduciary holding securities under an employee benefit plan of the Company or a\ncorporation owned directly or indirectly by the \n\n                                       8\n\n \nshareholders of the Company in substantially the same proportions as their\nownership of stock of the Company, (A) who is or becomes the beneficial owner,\ndirectly or indirectly, of securities of the Company representing 20% or more of\nthe combined voting power of the Company's then outstanding Voting Securities,\nincreases his beneficial ownership of such securities by 5% or more over the\npercentage so owned by such person, or (B) becomes the 'beneficial owner' (as\ndefined in Rule 13d-3 under said Exchange Act), directly or indirectly, of\nsecurities of the Company representing more than 30% of the total voting power\nrepresented by the Company's then outstanding Voting Securities, (ii) during any\nperiod of two consecutive years, individuals who at the beginning of such period\nconstitute the Board of Directors of the Company and any new director whose\nelection by the Board of Directors or nomination for election by the Company's\nshareholders was approved by a vote of at least two-thirds (2\/3) of the\ndirectors then still in office who either were directors at the beginning of the\nperiod or whose election or nomination for election was previously so approved,\ncease for any reason to constitute a majority thereof, or (iii) the shareholders\nof the Company approve a merger or consolidation of the Company with any other\ncorporation other than a merger or consolidation which would result in the\nVoting Securities of the Company outstanding immediately prior thereto\ncontinuing to represent (either by remaining outstanding or by being converted\ninto Voting Securities of the surviving entity) at least two-thirds (2\/3) of the\ntotal voting power represented by the Voting Securities of the Company or such\nsurviving entity outstanding immediately after such merger or consolidation, or\nthe shareholders of the Company approve a plan of complete liquidation of the\nCompany or an agreement for the sale or disposition by the Company of (in one\ntransaction or a series of transactions) all or substantially all of the\nCompany's assets.\n\n               d.   For purposes of this Agreement, 'Independent Legal Counsel'\nshall mean an attorney or firm of attorneys, selected in accordance with the\nprovisions of Section 1(e) hereof, who shall not have otherwise performed\nservices for the Company or any Indemnitee within the last three (3) years\n(other than with respect to matters concerning the right of any Indemnitee under\nthis Agreement, or of other indemnitees under similar indemnity agreements).\n\n               e.   For purposes of this Agreement, a 'Reviewing Party' shall\nmean any appropriate person or body consisting of a member or members of the\nCompany's Board of Directors or any other person or body appointed by the Board\nof Directors who is not a party to the particular Claim for which Indemnitee is\nseeking indemnification, or Independent Legal Counsel.\n\n               f.   For purposes of this Agreement, 'Voting Securities' shall\nmean any securities of the Company that vote generally in the election of\ndirectors.\n\n          11.  Counterparts. This Agreement may be executed in one or more \n               ------------ \ncounterparts, each of which shall constitute an original.\n\n          12.  Binding Effect; Successors and Assigns. This Agreement shall be\n               --------------------------------------                         \nbinding \n\n                                       9\n\n \nupon and inure to the benefit of and be enforceable by the parties hereto and\ntheir respective successors, assigns, including any direct or indirect successor\nby purchase, merger, consolidation or otherwise to all or substantially all of\nthe business and\/or assets of the Company, spouses, heirs, and personal and\nlegal representatives. The Company shall require and cause any successor\n(whether direct or indirect by purchase, merger, consolidation or otherwise) to\nall, substantially all, or a substantial part, of the business and\/or assets of\nthe Company, by written agreement in form and substance satisfactory to each\nIndemnitee, expressly to assume and agree to perform this Agreement in the same\nmanner and to the same extent that the Company would be required to perform if\nno such succession had taken place. This Agreement shall continue in effect with\nrespect to Claims relating to Indemnifiable Events regardless of whether any\nIndemnitee continues to serve as a director, officer, employee, agent,\ncontrolling person, or fiduciary of the Company or of any other enterprise,\nincluding subsidiaries of the Company, at the Company's request.\n\n          13.  Attorneys' Fees. In the event that any action is instituted by an\n               ---------------                                                  \nIndemnitee under this Agreement or under any liability insurance policies\nmaintained by the Company to enforce or interpret any of the terms hereof or\nthereof, any Indemnitee shall be entitled to be paid all Expenses incurred by\nsuch Indemnitee with respect to such action, regardless of whether such\nIndemnitee is ultimately successful in such action, and shall be entitled to the\nadvancement of Expenses with respect to such action, unless, as a part of such\naction, a court of competent jurisdiction over such action determines that each\nof the material assertions made by such Indemnitee as a basis for such action\nwas not made in good faith or was frivolous. In the event of an action\ninstituted by or in the name of the Company under this Agreement to enforce or\ninterpret any of the terms of this Agreement, the Indemnitee shall be entitled\nto be paid all Expenses incurred by such Indemnitee in defense of such action\n(including costs and expenses incurred with respect to Indemnitee counterclaims\nand cross-claims made in such action), and shall be entitled to the advancement\nof Expenses with respect to such action.\n\n          14.  Notice. All notices and other communications required or \n               ------                                                   \npermitted hereunder shall be in writing, shall be effective when given, and\nshall in any event be deemed to be given (a) five (5) days after deposit with\nthe U.S. Postal Service or other applicable postal service, if delivered by\nfirst class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c)\none business day after the business day of deposit with Federal Express or\nsimilar overnight courier, freight prepaid, or (d) one day after the business\nday of delivery by facsimile transmission, if deliverable by facsimile\ntransmission, with copy by first class mail, postage prepaid, and shall be\naddressed if to Indemnitee, at each Indemnitee's address as set forth beneath\nthe Indemnitee' signatures to this Agreement and if to the Company at the\naddress of its principal corporate offices (attention: Secretary) or at such\nother address as such party may designate by ten (10) days' advance written\nnotice to the other party hereto.\n\n          15.  Consent to Jurisdiction.  The Company and each Indemnitee each \n               -----------------------                                        \nhereby irrevocably consent to the jurisdiction and venue of the courts of the\nState of California for all purposes in connection with any action or proceeding\nwhich arises out of or relates to this \n\n                                       10\n\n \nAgreement and agree that any action instituted under this Agreement shall be\ncommenced, prosecuted and continued only in the courts of the State of\nCalifornia.\n\n          16.  Severability.  The provisions of this Agreement shall be \n               ------------                                             \nseverable in the event that any of the provisions hereof (including any\nprovision within a single section, paragraph or sentence) are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the\nremaining provisions shall remain enforceable to the fullest extent permitted by\nlaw. Furthermore, to the fullest extent possible, the provisions of this\nAgreement (including, without limitations, each portion of this Agreement\ncontaining any provision held to be invalid, void or otherwise unenforceable,\nthat is not itself invalid, void or unenforceable) shall be construed so as to\ngive effect to the intent manifested by the provision held invalid, illegal or\nunenforceable.\n\n          17.  Choice of Law.  This Agreement shall be governed by and its \n               -------------                                               \nprovisions construed and enforced in accordance with the laws of the State of\nCalifornia, as applied to contracts between California residents, entered into\nand to be performed entirely within the State of California, without regard to\nthe conflict of laws principles thereof.\n\n          18.  Subrogation.  In the event of payment under this Agreement, the\n               -----------                                                    \nCompany shall be subrogated to the extent of such payment to all of the rights\nof recovery of Indemnitee who shall execute all documents required and shall do\nall acts that may be necessary to secure such rights and to enable the Company\neffectively to bring suit to enforce such rights.\n\n          19.  Amendment and Termination.  No amendment, modification, \n               -------------------------                               \ntermination or cancellation of this Agreement shall be effective unless it is in\nwriting signed by the parties to be bound thereby. Notice of same shall be\nprovided to all parties hereto. No waiver of any of the provisions of this\nAgreement shall be deemed or shall constitute a waiver of any other provisions\nhereof (whether or not similar) nor shall such waiver constitute a continuing\nwaiver.\n\n          20.  Integration and Entire Agreement.  This Agreement supersedes any \n               --------------------------------                                \nprior director and officer indemnification agreement between the Company and any\nIndemnitee.\n\n          21.  No Construction as Employment Agreement.  Nothing contained in \n               ---------------------------------------                       \nthis Agreement shall be construed as giving any Indemnitee any right to be\nretained in the employ of the Company or any of its subsidiaries.\n\n          22.  Corporate Authority.  The Board of Directors of the Company and\n               -------------------                                           \nits shareholders in accordance with California law have approved the terms of\nthis Agreement.\n\n                 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n                                        \n                                       11\n\n \n          IN WITNESS WHEREOF, the parties hereto have executed this Agreement on\nand as of the day and year first above written.\n\n                                        EXODUS COMMUNICATIONS, INC.\n                                        a California corporation\n\n\n                                        By:_____________________________________\n                                           K.B. Chandrasekhar\n                                           President and CEO\n\n\n                                        Address:  2650 San Tomas Expressway\n                                                  Santa Clara, CA 95051\n\n\n\n                                        INDEMNITEE:\n\n                                        ________________________________________\n\n                                        By:_____________________________________\n                                        Name:___________________________________\n                                        Title:__________________________________\n\n\n                                        Address:________________________________\n                                        ________________________________________\n                                        ________________________________________\n\n                                       12\n\n \n                                   AMENDMENT\n                                        \n     This Amendment, dated as of _______________, 1998, is to that certain\nIndemnification Agreement between Exodus Communications, Inc., a California\ncorporation ('Exodus California') and _____________________ ('Indemnitee'),\ndated as of ______________ (the 'Indemnification Agreement').\n\n                                   RECITALS\n\n     A.  Indemnitee and Exodus California, the predecessor of Exodus\nCommunications, Inc., a Delaware corporation (the 'Company') previously entered\ninto the Indemnification Agreement.\n\n     B.  In connection with the reincorporation of the Company in Delaware (the\n'Reincorporation'), the Company has assumed all the obligations and contracts of\nExodus California, including the Indemnification Agreement.\n\n     C.  The Indemnification Agreement currently is governed by California law\nand the parties desire to amend said agreement to be governed by Delaware law\nupon the Reincorporation.\n\n     NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:\n\n     1.  All references to 'Exodus Communications, Inc., a California\ncorporation are hereby amended to refer to 'Exodus Communications, Inc., a\nDelaware corporation'.\n\n     2.  All references to California in paragraphs 3, 8, 15, 17 and 22 of the\nIndemnification Agreement are hereby amended to refer to Delaware.\n\n     3.  All references to the Company's Articles of Incorporation are hereby\namended to refer to the Company's Certificate of Incorporation.\n\n     4.  This Amendment shall take effect as of the date of the Reincorporation.\n\n     5.  Except as expressly set forth herein, all of the provisions, terms and\nconditions of the Indemnification Agreement shall remain in full force and\neffect.\n\n     6.  This Amendment may be executed in two counterparts, each of which shall\nbe deemed an original, but all of which together shall constitute one\ninstrument.\n\n     7.  This Amendment shall be governed by and construed in accordance with\nthe laws of the state of Delaware, excluding that body of law known as conflicts\nof law.\n\n \n          IN WITNESS WHEREOF, the parties hereto have executed this Agreement on\nand as of the day and year first above written.\n\n\n\n                                   EXODUS COMMUNICATIONS, INC.\n                                   a Delaware corporation\n\n\n                                   By:  ______________________________________\n                                        K.B. Chandrasekhar\n                                        President and Chief Executive Officer\n\n \n                                   Address:  2650 San Tomas Expressway\n                                             Santa Clara, CA 95051\n\n\n\n                                   INDEMNITEE:\n\n\n\n                                   ____________________________________________\n\n                                   By:   ______________________________________\n                                   Name: ______________________________________ \n                                   Title:______________________________________\n\n\n                                   Address:____________________________________\n                                   ____________________________________________\n                                   ____________________________________________\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":[9553,9557],"class_list":["post-40801","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-exodus-communications-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40801","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=40801"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40801"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40801"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40801"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}