{"id":43426,"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-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-exodus-communications-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/indemnification-agreement-exodus-communications-inc-and.html","title":{"rendered":"Indemnification Agreement &#8211; Exodus Communications Inc. and GlobalCenter Inc."},"content":{"rendered":"<pre>\n                           Indemnification Agreement\n                                        \n                         Dated as of January 10, 2001\n\n     WHEREAS, Exodus Communications, Inc. (\"Exodus\"), Einstein Acquisition Corp.\n(\"Acquisition Corp.\"), Global Crossing GlobalCenter Holdings, Inc., GlobalCenter\nHolding Co. (\"Holdings\"), GlobalCenter Inc (\"Company\") (Exodus, Holdings and the\nCompany, collectively, the \"Indemnitees\"), and Global Crossing North America,\nInc. (\"Global Crossing NA\") have entered into an Agreement and Plan of Merger\n(the \"Merger Agreement\") dated as of September 28, 2000, which provides for the\nmerger (the \"Merger\") of Acquisition Corp. with and into Holdings;\n\n     WHEREAS, the Board of Directors of Company has adopted the GlobalCenter\nInc. Management Stock Plan effective as of January 7, 2000, (the \"Plan\");\n\n     WHEREAS, the individuals who are signatories hereto (each a \"Participant\")\nand the Company have entered into Non-Statutory Stock Option Agreements under\nthe GlobalCenter Inc. Management Stock Plan prior to the Closing Date (as\ndefined in the Merger Agreement) of the Merger (the \"Stock Option Agreements\");\n\n     WHEREAS, the Stock Option Agreements (and in the case of Leo J. Hindery,\nJr., also an employment agreement (\"Hindery Employment Agreement\")) provide\nthat, in the event that any amounts the Participant receives or is deemed to\nreceive in connection with the options issued under the Plans or pursuant to the\nHindery Employment Agreement, result in the imposition of excise tax under\nSection 4999 of the Internal Revenue Code of 1986, as amended (the \"Code\") (or\nany successor provision or comparable federal, state, or local excise tax\nprovision), the Company will make the Participant whole with a payment for the\nentire amount of such excise tax (including any excise tax on such payment), as\nwell as any attendant employment taxes and\/or income taxes and any penalties\nand\/or interest assessed in connection with any of the foregoing (the \"Tax\nRestoration Payment\").\n\n     NOW, THEREFORE, in exchange for the receipt of consideration, the adequacy\nof which the parties hereby acknowledge, and intending to be legally bound\nhereby, the parties agree as follows:\n\n     1.  Subject to the provisions of this Agreement, Global Crossing NA hereby\nagrees to pay to, or on behalf of, each Participant any Tax Restoration Payment\nand agrees to make such payment upon the due date of the excise tax or any\nattendant income tax, employment tax, penalty or interest to which the Tax\nRestoration Payment relates; provided, however, that the failure of Global\nCrossing NA to timely pay the Tax Restoration Payment to the Participant shall\nnot relieve Global Crossing NA of its obligations for such payment under the\nterms of this Agreement.  Global Crossing NA shall remit to the Internal Revenue\nService (the \"IRS\") or any other taxing authority such payments as are required\nby applicable withholding or similar laws.\n\n     2.  Each Participant agrees to look solely to Global Crossing NA (or its\nsuccessors in interest) for any Tax Restoration Payment and expressly releases\nand waives any and all claims \n\n \nwith respect to the Tax Restoration Payment or the taxes which are the subject\nof the Tax Restoration Payment against the Company and its owners (with the\nexception of Global Crossing NA), agents, officers, shareholders (with the\nexception of Global Crossing NA), employees, directors, attorneys, subscribers,\nsubsidiaries, affiliates and successors or assigns, including Exodus,\nAcquisition Corp., Holdings and their owners, agents, officers, shareholders,\nemployees, directors, attorneys, subscribers' subsidiaries, affiliates,\nsuccessors and assigns (the \"Releasees\"). By signing below, each Participant\nexpressly waives any benefits of Section 1542 of the Civil Code of the State of\nCalifornia, which provides as follows:\n\n            \"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS \n            WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO \n            EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THIS \n            RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE \n            MATERIALLY AFFECTED HIS SETTLEMENT WITH THE \n            DEBTOR.\"\n\n     3.  Each Participant and the Indemnitees hereby agrees to take the position\nthat any payment and\/or benefit received by the Participant in connection with\nthe Merger is not an \"excess parachute payment\" within the meaning of Section\n4999(b) and 280G(b) of the Code (or any successor provision or comparable\nfederal, state, or local excise tax provision) and thus does not give rise to\nany excise tax under Section 4999(a) of the Code (or any successor provision or\ncomparable federal, state, or local excise tax provision).\n\n     4.  (a)  The Participant, the Indemnitees, and Global Crossing NA hereby\nagree that, the Participant  (or, if so notified by the IRS or a Participant, an\nIndemnitee) will notify Global Crossing NA in writing of any claim by the IRS\n(or in the case of a noticed Indemnitee, by the Participant, that, if\nsuccessful, would require the payment by Global Crossing NA of any Tax\nRestoration Payment  or any other payment hereunder.  Such notification shall be\ngiven as soon as practicable but no later than ten business days after the\nParticipant or an Indemnitee, as applicable, is informed in writing of such\nclaim and shall apprise Global Crossing NA of the nature of such claim and the\ndate on which such claim is requested to be paid.  Neither the Participant nor\nany Indemnitee shall pay such claim prior to the expiration of the thirty-day\nperiod following the date on which it gives such notice to Global Crossing NA\n(or such shorter period ending on the date that any payment of taxes with\nrespect to such claim is due).\n\n     (b) If Global Crossing NA notifies the Participant or, if applicable, an\nIndemnitee, in writing prior to the expiration of such period that it desires to\ncontest such claim, the Participant and any Indemnitee shall (i) give Global\nCrossing NA any information reasonably requested by Global Crossing NA relating\nto such claim, (ii) take such action in connection with contesting such claim as\nGlobal Crossing NA shall reasonably request in writing from time to time,\nincluding, without limitation, accepting legal representation with respect to\nsuch claim by an attorney reasonably selected by Global Crossing NA, (iii)\ncooperate with Global Crossing NA in good faith in order to effectively contest\nsuch claim, and (iv) permit Global Crossing NA to participate in any proceedings\nrelating to such claim; provided, however, that Global Crossing NA shall bear\n                        --------  -------                                    \nand pay directly all costs and expenses (including additional interest and\npenalties) incurred in connection with such contest and shall, whether or not\nGlobal Crossing NA provides notification pursuant to this Section 4(b),(i)\nindemnify and hold the Participant harmless, on an \n\n\n                                       2\n\n \nafter tax basis, for any excise tax imposed as a result of such representation\nand payment of costs and expenses and (ii) indemnify any Indemnitee for any Tax\nRestoration Payment paid by such Indemnitee and for any tax, penalty or interest\nassociated with a failure to meet any withholding or reporting obligation of the\nIRS or any other taxing authority.\n\n     (c) Without limiting the foregoing, Global Crossing NA shall control all\nproceedings taken in connection with such contest and, at its sole option, may\npursue or forego any and all administrative appeals, proceedings, hearings and\nconferences with the taxing authority in respect of such claim and may, at its\nsole option, either direct the Participant to pay the tax claimed and sue for a\nrefund or contest the claim in any permissible manner, and the Participant and\nany affected Indemnitee agree to prosecute such contest to a determination\nbefore any administrative tribunal, in a court of initial jurisdiction and in\none or more appellate courts, as Global Crossing NA shall determine; provided,\n                                                                     -------- \nhowever, that if Global Crossing NA directs the Participant to pay such claim\n-------                                                                      \nand sue for a refund, Global Crossing NA shall advance the amount of such\npayment to the Participant, on an interest-free basis, and shall indemnify and\nhold the Participant harmless, on an after-tax basis, from and excise tax\nimposed with respect to such advance or with respect to any imputed income with\nrespect to such advance; provided, further, that if the Participant is required\n                         --------  -------                                     \nto extend the statute of limitations to enable Global Crossing NA to contest\nsuch claim, the Participant may limit this extension solely to such contested\namount.\n\n     (d) If, after the receipt by the Participant of any amount paid or advanced\nby Global Crossing NA pursuant to this letter, the Stock Option Agreement, or\nthe Hindery Employment Agreement, the Participant becomes entitled to receive\nany refund with respect to a Tax Restoration Payment, the Participant shall\npromptly pay to Global Crossing NA the amount of such refund received (together\nwith any interest paid or credited thereon after taxes applicable thereto).  If,\nafter the receipt by the Participant of an amount advanced by Global Crossing NA\npursuant to this letter, the Stock Option Agreement, or the Hindery Employment\nAgreement, a determination is made that the Participant shall not be entitled to\nany refund with respect to such claim and Global Crossing NA does not notify the\nParticipant in writing of its intent to contest such denial of refund prior to\nthe expiration of thirty days after such determination, then such advance shall\nbe forgiven and shall not be required to be repaid and the amount of such\nadvance shall offset, to the extent thereof, the amount of the Tax Restoration\nPayment required to be paid.\n\n     5.  The Agreement is made under and construed pursuant to the laws of the\nState of California.\n\n     6.  This Agreement shall be binding on the successors and assigns of Global\nCrossing NA, the Indemnitees, and any Participant.\n\n     7.  This Agreement may be executed in one or more counterparts, each of\nwhich when so signed shall be deemed to be an original, and such counterparts\ntogether shall constitute one and the same instrument.  In lieu of the original,\na facsimile transmission or copy of the original shall be as effective and\nenforceable as the original.\n\n\n                                       3\n\n \n     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted as of the date first written above.\n\n\nEXODUS COMMUNICATIONS, INC.                     EINSTEIN ACQUISITION CORP.\n\n \nBy: \/s\/ R. Marshall Case                        By: \/s\/ Adam W. Wegner\n   ---------------------------------               ----------------------------\n\nName R. Marshall Case                           Name: Adam W. Wegner\n    --------------------------------                 --------------------------\n\nTitle: Executive Vice President,                Title: President, Chief \n       Finance and Chief Financial                     Financial Officer and\n       Officer                                         Secretary\n      ------------------------------                  -------------------------\n \nGLOBAL CROSSING NORTH AMERICA, INC.             GLOBALCENTER INC.\n\n\nBy: \/s\/ Joseph P. Clayton                       By: \/s\/ Leo J. Hindery, Jr. \n   ---------------------------------               ----------------------------\n\nName:  Joseph P. Clayton                        Name: Leo J. Hindery, Jr.\n     -------------------------------                 --------------------------\n\nTitle: Chief Executive Officer                  Title: Chief Executive Officer \n      ------------------------------                  ------------------------- \n \nGLOBALCENTER HOLDING CO.\n \nBy: \/s\/ Leo J. Hindery, Jr.                                            \n   ---------------------------------\n\nName: Leo J. Hindery, Jr.\n     -------------------------------\n\nTitle: Chief Executive Officer                  \n      ------------------------------\n \nPARTICIPANTS:\n \n\/s\/ Leo J. Hindery, Jr.                         \/s\/ Peter Baron \n------------------------------------            -------------------------------\nLeo J. Hindery, Jr.                             Peter Baron\n \n\/s\/ Derek Chang                                 \/s\/ Mark J. Coleman \n------------------------------------            -------------------------------\nDerek Chang                                     Mark J. Coleman\n \n\n                                      4 \n\n \n\/s\/ Grace De Latour                             \/s\/ Eric Kirsten\n---------------------------                     ---------------------------\nGrace De Latour                                 Eric Kirsten\n \n \n\/s\/ David L. Klott                              \/s\/ David Krone\n---------------------------                     ---------------------------\nDavid L. Klott                                  David Krone\n \n \n\/s\/ Lisa Perreault                              \/s\/ Laurie Priddy\n---------------------------                     ---------------------------\nLisa Perreault                                  Laurie Priddy\n \n \n\/s\/ Bruce Stewart                               \/s\/ Barbara Wood\n---------------------------                     ---------------------------\nBruce Stewart                                   Barbara Wood\n \n \n\/s\/ Gregory Liberman                            \/s\/ Bryan Gaynor     \n---------------------------                     ---------------------------\nGregory Liberman                                Bryan Gaynor\n \n \n\/s\/ Carolyn Sharks                              \/s\/ Lee Munsell\n---------------------------                     ---------------------------\nCarolyn Sharks                                  Lee Munsell\n \n \n\/s\/ Craig Fischer\n---------------------------                     ---------------------------\nCraig Fischer\n \n \n\n\n                                       5\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7490,7648],"corporate_contracts_industries":[9513,9519],"corporate_contracts_types":[9622,9626],"class_list":["post-43426","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-exodus-communications-inc","corporate_contracts_companies-global-crossing-ltd","corporate_contracts_industries-technology__software","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43426","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=43426"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43426"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43426"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43426"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}