Common use of Company ESPP Clause in Contracts

Company ESPP. Prior to the Effective Time, unless the offering period underway as of the date hereof (the “Current Offering Period”) under the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP”) terminates by its terms prior to the Effective Time, the Company will take all action that may be necessary to: (i) cause the Current Offering Period to be terminated as of the last Business Day prior to the Effective Time (the last Business Day prior to the Effective Time, the “Designated Date”); (ii) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Period, but otherwise treat such shortened Current Offering Period as a fully effective and completed offering period for all purposes under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will be used to purchase shares in accordance with the terms of the Company ESPP, and each share purchased thereunder will be canceled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to Section 2.1(a), subject to withholding of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Prior to the Effective Time (subject to the consummation of the Merger), the Company will cause the Company ESPP to terminate at the Effective Time, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchase.

Company ESPP. Prior As soon as practicable following the date of this Agreement, the Company Board or a committee thereof shall adopt resolutions or take other actions as may be required to provide that (A) the Effective Time, unless Offering Period (as defined in the offering period underway Company ESPP) in effect as of the date hereof shall be the final Offering Period (such period, the “Current Final Offering Period”) under and no further Offering Period shall commence pursuant to the Xyratex Ltd 2004 Employee Stock Purchase Plan Company ESPP after the date hereof, and (B) each individual participating in the Final Offering Period on the date of this Agreement shall not be permitted to (x) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect when the Final Offering Period commenced or (y) make separate non-payroll contributions to the Company ESPP on or following the date of this Agreement, except as amended) (the “Company ESPP”) terminates may be required by its terms prior applicable Law. Prior to the Effective Time, the Company will shall take all action that may be necessary to: , effective upon the consummation of the Merger, (iA) cause the Current Final Offering Period to be terminated as of the last Business Day prior Period, to the Effective Time (the last Business Day prior to extent that it would otherwise be outstanding at the Effective Time, to be terminated no later than ten (10) Business Days prior to the “Designated Date”)date on which the Effective Time occurs; (iiB) make any pro-pro rata adjustments that may be necessary to reflect the shortened Current Final Offering Period, but otherwise treat such shortened Current the Final Offering Period as a fully effective and completed offering period Offering Period for all purposes under pursuant to the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”)ESPP; and (iiiC) cause the exercise (as of no later than ten (10) Business Days prior to the date on which the Effective Time occurs) of each participant’s shares outstanding purchase right under pursuant to the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the MergerESPP. On such exercise date, the Designated Date, Company shall apply the funds credited as of such date under pursuant to the Company ESPP within the associated accumulated each participant’s payroll withholding account for each participant under to the purchase of whole shares of Company ESPP will be used to purchase shares Common Stock in accordance with the terms of the Company ESPP, and each share purchased thereunder will such Common Shares shall be canceled at the Effective Time and converted into the right entitled to receive the Merger Consideration pursuant to in accordance with Section 2.1(a), subject to withholding of applicable income and employment withholding Taxes pursuant to Section 2.2(f3.1(b). Prior Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will cause the Company ESPP to shall terminate at the Effective Time, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchase.

Company ESPP. Prior to the Effective Time, unless the offering period underway as of the date hereof (the “Current Offering Period”) under the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP”) terminates by its terms prior to the Effective Time, the Company will shall take all action that may be actions necessary or required under the Company ESPP and applicable Law to: , contingent on the Effective Time, (i) cause the Current Offering Period to be terminated as of purchase period then underway under the last Business Day prior Company ESPP (the “Final Purchase Period”), to the Effective Time (the last Business Day prior to extent that it would otherwise be outstanding at the Effective Time, to be terminated no later than ten (10) Business Days prior to the “Designated Date”)date on which the Effective Time occurs; (ii) make any pro-pro rata adjustments that may be necessary to reflect the shortened Current Offering Final Purchase Period, but otherwise treat such shortened Current Offering the Final Purchase Period as a fully effective and completed offering purchase period for all purposes pursuant to the Company ESPP; (iii) cause the exercise (as of no later than ten (10) Business Days prior to the date on which the Effective Time occurs) of each outstanding purchase right pursuant to the Company ESPP; and (iv) cause the Company ESPP to be terminated immediately following the end of the Final Purchase Period such that no further rights shall be granted or exercised under the Company ESPP thereafter; provided that (A) there will be no increase in the completion percentage of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right participants’ payroll deduction elections under the Company ESPP from those in effect as of the date of this Agreement, (B) participants may not make separate non-payroll contributions to the “Company ESPP Rights”on or following the date hereof, and (C) to be exercised; provided, however, that no additional Persons shall commence participation in the actions described in clauses (i) through (iii) Company ESPP during the period from the date of this sentence will be conditioned upon Agreement through the consummation of the MergerEffective Time. On the Designated Dateexercise date of the Final Purchase Period, the Company shall apply the funds credited as of such date under pursuant to the Company ESPP within the associated accumulated each participant’s payroll withholding account for each participant under to the purchase of whole Company ESPP will be used to purchase shares Common Stock in accordance with the terms of the Company ESPP, and each share purchased thereunder will such Company Common Stock shall be canceled at the Effective Time outstanding Company Common Stock and converted into the right entitled to receive the Merger Consideration pursuant to Section 2.1(a), subject to withholding of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Prior cash in an amount equal to the Effective Time (subject to the consummation of the Merger), the Company will cause the Company ESPP to terminate at the Effective Time, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final PurchasePer Share Price.

Company ESPP. Prior The Company Board (or, if appropriate, the committee administering the Company ESPP) shall pass such resolutions and take all actions reasonably necessary with respect to the Effective Time, unless Company ESPP to provide that (i) except for the offering period underway as of periods under the Company ESPP in effect on the date hereof (the “Current Final Offering PeriodPeriods”) ), no new offering period shall commence and no existing offering period shall be extended (provided that the commencement of new purchase periods under the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP”) terminates by its terms prior to the Effective Time, the Company will take all action that may be necessary to: (i) cause the Current Final Offering Period to be terminated as of the last Business Day prior to the Effective Time (the last Business Day prior to the Effective Time, the “Designated Date”); (ii) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Period, but otherwise treat such shortened Current Offering Period as a fully effective and completed offering period for all purposes under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will be used to purchase shares Periods in accordance with the terms of the Company ESPPESPP in effect on the date hereof shall be permitted), in each case, following the date hereof unless and until this Agreement is terminated in accordance with its terms; (ii) from and after the date hereof, no new participants shall be permitted to participate in the Company ESPP and participants shall not be permitted to increase their payroll deductions or purchase elections from those in effect on the date of this Agreement; and (iii) subject to the consummation of the Merger, the Company ESPP shall terminate as of the Effective Time. If the Effective Time occurs: (A) during one or more of the Final Offering Periods, (x) the final exercise date(s) under the Company ESPP shall be such date as the Company determines in its sole discretion (provided that such date shall be no later than the date that is five (5) days prior to the Effective Time) (the “Final Exercise Date”) and (y) each share purchased thereunder will Company ESPP participant’s accumulated contributions under the Company ESPP shall be used to purchase whole Company Shares in accordance with the terms of the Company ESPP as of the Final Exercise Date, which Company Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time and converted into in exchange for the right to receive the Merger Consideration pursuant in accordance with Section 3.7(a) or (B) after the end of the Final Offering Periods, all amounts allocated to Section 2.1(a)each participant’s account under the Company ESPP at the end of each of the Final Offering Periods shall thereupon be used to purchase whole Company Shares under the terms of the Company ESPP for such offering period, subject which Company Shares, to withholding of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Prior the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 3.7(a). As promptly as practicable following the purchase of Company Shares in accordance with the foregoing clauses (subject to the consummation of the MergerA) or (B), the Company will cause shall return to each participant the Company ESPP to terminate at the Effective Timefunds, and the Company hereby represents and warrants to Parent and Purchaser if any, that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or remain in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected such participant’s account after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchasesuch purchase.

Company ESPP. Prior The Company Board (or, if appropriate, the committee administering the Company’s Amended and Restated Employee Stock Purchase Plan (the “Company ESPP”)) will take all actions reasonably necessary with respect to the Effective Time, unless Company ESPP to provide that (A) except for the offering period underway as of periods under the Company ESPP in effect on the date hereof (the “Current Final Offering PeriodPeriods”), no new offering period will commence following the date hereof unless and until this Agreement is terminated; and (B) from and after the date hereof, no new participants will be permitted to participate in the Company ESPP and participants will not be permitted to increase their payroll deductions or purchase elections from those in effect on date of this Agreement. If the Effective Time occurs: (i) during one or more of the Final Offering Periods, (A) the final exercise date(s) under the Xyratex Ltd 2004 Employee Stock Purchase Plan Company ESPP shall be such date as the Company determines in its sole discretion (as amendedprovided that such date shall be no later than the date that is five (5) (the “Company ESPP”) terminates by its terms days prior to the Effective Time, the Company will take all action that may be necessary to: (i) cause the Current Offering Period to be terminated as of the last Business Day prior to the Effective Time (the last Business Day prior to the Effective Time, the “Designated Final Exercise Date”); , and (iiB) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Period, but otherwise treat such shortened Current Offering Period as a fully effective and completed offering period for all purposes each Company ESPP participant’s accumulated contributions under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will shall be used to purchase shares whole Shares in accordance with the terms of the Company ESPPESPP as of the Final Exercise Date, and each share purchased thereunder will which Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled cancelled at the Effective Time and converted into in exchange for the right to receive the Merger Consideration pursuant to in accordance with Section 2.1(a); or (ii) after the end of the Final Offering Period(s), subject all amounts allocated to withholding each participant’s account under the Company ESPP at the end of applicable income and employment withholding Taxes pursuant such Final Offering Periods shall thereupon be used to Section 2.2(f). Prior purchase whole Shares under the terms of the Company ESPP for such offering period, which Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with‎ Section 2.1(a). As promptly as practicable following the purchase of Shares in accordance with the foregoing clauses (subject to the consummation of the Mergeri) or (ii), the Company will cause shall return to each participant the Company ESPP to terminate at funds, if any, that remain in such participant’s account after such purchase. As of the Effective Time, and the Company hereby represents ESPP shall be terminated and warrants to Parent and Purchaser that it will take all actions necessary no further Shares in the Company or other rights with respect to the Company ESPP so that (A) no offering periods or purchase periods will Shares shall be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchasegranted thereunder.

Company ESPP. Prior (a) The Company shall take any and all actions with respect to the Effective Time, unless Company ESPP as are necessary to provide that: (i) with respect to the offering period underway Offering Period (as defined in the Company ESPP) in effect as of the date hereof, no employee who is not a participant in the Company ESPP as of the date hereof may become after the date hereof a participant in the Company ESPP and no participant in the Company ESPP may increase the percentage amount of his or her payroll deduction election from that in effect on the date hereof for such Offering Period; (ii) participants in the Company ESPP shall not be permitted to make additional contributions to the Company ESPP after the second payroll period ending after the date hereof (the “Current Offering PeriodCompany ESPP Contribution Termination Date”); and (iii) under the Xyratex Ltd 2004 Employee Stock Purchase Plan Exercise Date (as amended) (defined in the “Company ESPP”) terminates by its terms prior to the Effective Time, the Company will take all action that may be necessary to: (i) cause the Current Offering Period to be terminated as of the last Business Day shall occur immediately prior to the Effective Time (the last Business Day “Exercise Time”) unless this Agreement is terminated prior to thereto. At the Effective Exercise Time, the “Designated Date”); (ii) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Period, but otherwise treat such shortened Current Offering Period as a fully effective and completed offering period for all purposes under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Date, the funds credited as of such date under the Company ESPP within Contribution Termination Date shall be automatically exercised by applying the associated accumulated payroll withholding account for deductions of each participant under in the Company ESPP will be used for such Offering Period to the purchase shares in accordance with of a number of whole Shares (subject to the terms provisions of the Company ESPP regarding the number of shares purchasable) at an exercise price per Share equal to the Exercise Price (as defined in the Company ESPP) of a Company Common Share applicable to the Offering Period, and each share purchased thereunder which number of Shares will then be canceled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to in accordance with Section 2.1(a)2.4(a) hereof, subject to less required withholding taxes in accordance with Section 3.7. Any excess payroll deductions not used as a result of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Prior to the Effective Time (subject to the consummation of the Merger), the Company will cause share limitations under the Company ESPP shall be returned to terminate at the Effective Timeapplicable participant without interest. If a fractional number of Shares results, then such number shall be rounded down to the next whole number, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect excess payroll deductions shall be returned to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchaseapplicable participant without interest.

Company ESPP. Prior to the Effective Time, unless the Company shall take all actions as are necessary to (a) provide that no new individuals will be permitted to enroll in the Company ESPP on or following the date of this Agreement; (b) make any adjustments that may be necessary or advisable to reflect that the offering period underway as of that is in effect on the date hereof of this Agreement (the “Current Offering Period”) under the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP”) terminates by its terms prior shall be shortened if required pursuant to the Effective Time, the Company will take all action that may be necessary to: (i) cause the Current Offering Period to be terminated as of the last Business Day prior to the Effective Time (the last Business Day prior to the Effective Time, the “Designated Date”); (ii) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Periodthis Section ‎2.9, but otherwise treat such shortened the Current Offering Period as a fully effective and completed offering period for all purposes pursuant to the Company ESPP; (c) not allow any increase in the amount of participants’ payroll deduction elections under the Company ESPP during the Current Offering Period from those in effect on the date of this Agreement; (d) cause the completion exercise (as of no later than one Business Day prior to the date on which the Effective Time occurs) of each outstanding purchase right pursuant to the Company ESPP, but otherwise not issue any Company Common Stock under the Company ESPP; (e) provide that no further offering period will commence pursuant to the Company ESPP on or after the date of this Agreement; and (f) not extend the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares . If purchase right rights are exercised under the Company ESPP (pursuant to the “Company ESPP Rights”foregoing clause ‎(d) prior to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Closing Date, on such exercise date, the Company will apply the funds credited as of such date under pursuant to the Company ESPP within each participant’s account to the associated accumulated payroll withholding account for each participant under the purchase of whole shares of Company ESPP will be used to purchase shares Common Stock in accordance with the terms of the Company ESPP, . Immediately prior to and each share purchased thereunder will be canceled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to Section 2.1(a), subject to withholding effective as of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Prior to the Effective Time (but subject to the consummation of the Merger), the Company will cause shall terminate the Company ESPP to terminate at the Effective Time, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to no further rights shall be granted or exercised under the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchasethereafter.

Company ESPP. Prior to the Effective Time, unless the offering period underway The Company shall take such action as of the date hereof (the “Current Offering Period”) under the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP”) terminates by its terms prior to the Effective Time, the Company will take all action that may be necessary to: (i) cause any offering period and purchase period (or similar period during which shares may be purchased) underway as of the Current Offering Period date of this Agreement under the Company ESPP to be terminated as of no later than the last Business Day prior to payroll date immediately preceding the Effective Time (the last Business Day prior to the Effective Time, the “Designated Final Exercise Date”); (ii) make any pro-rata adjustments that may be necessary to reflect the any shortened Current Offering Periodoffering period or purchase period (or similar period), but otherwise treat any Table of Contents such shortened Current Offering Period offering period or purchase period (or similar period) as a fully effective and completed offering period or purchase period, as applicable, for all purposes under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”)ESPP; and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) outstanding as of the Final Exercise Date to be exercisedexercised as of the Final Exercise Date; (iv) provide that no further offering periods or purchase periods (or similar periods during which shares may be purchased) shall commence under the Company ESPP on or after the date of this Agreement; (v) provide that no participant in the Company ESPP may increase the rate of his or her contributions to the Company ESPP on or after the date of this Agreement; (vi) provide that no individual who is not participating in the Company ESPP as of the date of this Agreement may commence participation in the Company ESPP on or after the date of this Agreement; and (vii) terminate the Company ESPP as of the Final Exercise Date, provided, however, that termination of the actions described in clauses (i) through (iii) of this sentence will Company ESPP shall be conditioned upon subject to the consummation of the Merger. Each outstanding option under the Company ESPP on the Final Exercise Date shall be exercised on such date for the purchase of Company Common Stock in accordance with the terms of the Company ESPP. On the Designated Final Exercise Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will be used to purchase shares in accordance with the terms of the Company ESPP, and each share purchased by a participant of the Company ESPP and issued thereunder will be canceled cancelled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to this Section 2.1(a)2.7, subject to withholding of applicable income and employment withholding Taxes pursuant to Section 2.2(f)Taxes. Prior to No further Company ESPP Rights will be granted after the Effective Time date of this Agreement, and no further Company ESPP Rights will be exercised under the Company ESPP after the Final Exercise Date. The Company shall provide timely notice of the setting of the Final Exercise Date and termination of the Company ESPP in accordance with the Company ESPP (which termination will be subject to the consummation of the Merger), the Company will cause the Company ESPP to terminate at the Effective Time, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchase.

Company ESPP. Prior The Company shall take any and all actions with respect to the Effective TimeCompany ESPP as are necessary to provide that: (i) with respect to the Offering Period (as defined in the Company ESPP) in effect as of the date hereof, unless no employee who is not a participant in the offering period underway Company ESPP as of the date hereof (may become after the “Current date hereof a participant in the Company ESPP and no participant in the Company ESPP may increase the percentage amount of his or her payroll deduction election from that in effect on the date hereof for such Offering Period”; (ii) under subject to consummation of the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP”) terminates by its terms prior to the Effective TimeMerger, the Company will take all action that may be necessary to: (i) cause the Current Offering Period to be terminated as of the last Business Day prior to ESPP shall terminate, effective immediately before the Effective Time (the last Business Day prior to the Effective Time, the “Designated Date”); (ii) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Period, but otherwise treat such shortened Current Offering Period as a fully effective and completed offering period for all purposes under the Company ESPP (the completion of the Current Offering Period, the “Final PurchaseTermination Date”); and (iii) cause if the Offering Period in effect as of the date hereof terminates prior to the Company ESPP Termination Date, the Company ESPP shall be suspended and no new Offering Period will be commenced under the Company ESPP unless this Agreement shall have terminated prior to the consummation of the Merger. If such Offering Period is still in effect on the Company ESPP Termination Date, then, on the Company ESPP Termination Date, each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Date, the funds credited as of such date under the Company ESPP within Termination Date shall be automatically exercised by applying the associated accumulated payroll withholding account for deductions of each participant under in the Company ESPP will be used for such Offering Period to the purchase shares in accordance with of a number of whole Shares (subject to the terms provisions of the Company ESPP regarding the number of shares purchasable) at an exercise price per Share equal to the lower of (A) 85% of the Fair Market Value (as defined in the Company ESPP) of a share of Company Common Stock at the start of the Offering Period and (B) 85% of the Merger Consideration, and each share purchased thereunder which number of shares will then be canceled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to in accordance with Section 2.1(a), subject to withholding ) hereof. Any excess payroll deductions not used as a result of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Prior to the Effective Time (subject to the consummation of the Merger), the Company will cause share limitations under the Company ESPP shall be distributed to terminate at each participant without interest. If a fractional number of Shares results, then such number shall be rounded down to the next whole number, and the excess payroll deductions shall be distributed to the applicable participant without interest. As soon as reasonably practicable after the Effective Time, and Parent shall cause the Company hereby represents and warrants Paying Agent to Parent and Purchaser that it will take all actions necessary with respect pay to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants each participant in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant entitled to payment in accordance with this Section 2.4(e) following 1.11 the Final Purchaseamounts payable with respect thereto.

Company ESPP. Prior The Company Board (or, if appropriate, the committee administering the Company’s Employee Stock Purchase Plan (the “Company ESPP”)) will take all actions reasonably necessary with respect to the Effective Time, unless Company ESPP to provide that (A) except for the offering period underway as of periods under the Company ESPP in effect on the date hereof (the “Current Final Offering PeriodPeriods”), no new offering period will commence following the date hereof unless and until this Agreement is terminated; and (B) from and after the date hereof, no new participants will be permitted to participate in the Company ESPP and participants will not be permitted to increase their payroll deductions or purchase elections from those in effect on date of this Agreement. If the Effective Time occurs: (i) during one or more of the Final Offering Periods, (A) the final exercise date(s) under the Xyratex Ltd 2004 Employee Stock Purchase Plan Company ESPP shall be such date as the Company determines in its sole discretion (as amended) (provided that such date shall be no later than the “Company ESPP”) terminates by its terms date that is five days prior to the Effective Time, the Company will take all action that may be necessary to: (i) cause the Current Offering Period to be terminated as of the last Business Day prior to the Effective Time (the last Business Day prior to the Effective Time, the “Designated Final Exercise Date”); , and (iiB) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Period, but otherwise treat such shortened Current Offering Period as a fully effective and completed offering period for all purposes each Company ESPP participant’s accumulated contributions under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will shall be used to purchase shares whole Shares in accordance with the terms of the Company ESPPESPP as of the Final Exercise Date, and each share purchased thereunder will which Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled cancelled at the Effective Time and converted into in exchange for the right to receive the Merger Consideration pursuant to in accordance with Section 2.1(a); or (ii) after the end of the Final Offering Period(s), subject all amounts allocated to withholding each participant’s account under the Company ESPP at the end of applicable income and employment withholding Taxes pursuant such Final Offering Periods shall thereupon be used to Section 2.2(f). Prior purchase whole Shares under the terms of the Company ESPP for such offering period, which Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with ‎Section 2.1(a). As promptly as practicable following the purchase of Shares in accordance with the foregoing clauses (subject to the consummation of the Mergeri) or (ii), the Company will cause (or the Company ESPP Surviving Corporation) shall return to terminate at each participant the Effective Timefunds, and the Company hereby represents and warrants to Parent and Purchaser if any, that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or remain in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected such participant’s account after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchasesuch purchase.

Company ESPP. Prior to Simultaneously in connection with the Effective Time, unless the offering period underway as execution of the date hereof (the “Current Offering Period”) under the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP”) terminates by its terms prior to the Effective Timethis Agreement, the Company will take all action that may be necessary toshall: (i) cause any offering period (or similar period during which shares may be purchased) in progress under the Current Offering Period Company ESPP as of the date of this Agreement to be the final offering period under the Company ESPP and to be terminated as of the last Business Day prior to the Effective Time date of this Agreement (the last Business Day prior to the Effective Time, the “Designated Final Exercise Date”); (ii) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Periodoffering period (or similar period), but otherwise treat such shortened Current Offering Period offering period (or similar period) as a fully effective and completed offering period for all purposes under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”)ESPP; and (iii) cause each participant’s shares then-outstanding share purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation terminate as of the MergerFinal Exercise Date. Thereafter, the Company shall terminate the Company ESPP no later than the Effective Time. On the Designated Final Exercise Date, to the extent sufficient funds have been credited as of such date under the Company ESPP within the associated accumulated payroll withholding account accounts for each participant under the Company ESPP will participants to fund a share purchase for a reasonable number of shares, then such funds shall be used to purchase shares of Common Stock in accordance with the terms of the Company ESPP, and each otherwise the current offering period shall terminate without a final purchase. Each share purchased thereunder will prior to the Effective Time shall be canceled cancelled at the Effective Time and converted into the right to receive the Common Merger Consideration pursuant to in accordance with Section 2.1(a3.1(a), subject to withholding of any applicable income and employment withholding Taxes pursuant to Section 2.2(f)Taxes. Prior to the Effective Time (subject to the consummation Any accumulated contributions of the Merger), the Company will cause each participant under the Company ESPP to terminate at following the Effective TimeFinal Exercise Date shall, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or extent not used to purchase periods will be commenced following or shares in addition to accordance with the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, terms and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination conditions of the Company ESPP (as amended pursuant to this Section 2.4(e) 3.3(e)), be refunded to such participant as promptly as practicable following the Final PurchaseExercise Date (without interest). No further Company ESPP Rights shall be granted or exercised under the Company ESPP after the Final Exercise Date.

Company ESPP. Prior to the Effective Time, unless the offering period underway As soon as of reasonably practicable after the date hereof hereof, the Company, the Company Board or a committee thereof shall adopt resolutions or take other actions as may be required to provide that (a) the “Current Offering Period”) under Purchase Period (as defined in the Xyratex Ltd 2004 Employee Stock Purchase Plan (of the Company, as amended) amended and restated (the “Company ESPP”)) terminates in effect as of the date hereof shall be the final Purchase Period (such period, the “Final Purchase Period”) and no further Purchase Period shall commence pursuant to the Company ESPP after the date hereof, and (b) each individual participating in the Final Purchase Period on the date of this Agreement shall not be permitted to (i) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect when the Final Purchase Period commenced or (ii) make separate non-payroll contributions to the Company ESPP on or following the date of this Agreement, except as may be required by its terms prior applicable Law. Prior to the Effective Time, the Company will shall take all action that may be necessary to: , effective upon the consummation of the Merger, (iA) cause the Current Offering Period to be terminated as of the last Business Day prior Final Purchase Period, to the Effective Time (the last Business Day prior to extent that it would otherwise be outstanding at the Effective Time, to be terminated no later than five (5) Business Days prior to the “Designated Date”)date on which the Effective Time occurs; (iiB) make any pro-pro rata adjustments that may be necessary to reflect the shortened Current Offering Final Purchase Period, but otherwise treat such shortened Current Offering the Final Purchase Period as a fully effective and completed offering period Purchase Period for all purposes under pursuant to the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”)ESPP; and (iiiC) cause the exercise (as of no later than five (5) Business Days prior to the date on which the Effective Time occurs) of each participant’s shares outstanding purchase right under pursuant to the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the MergerESPP. On such exercise date, the Designated Date, Company shall apply the funds credited as of such date under pursuant to the Company ESPP within the associated accumulated each participant’s payroll withholding account for each participant under to the purchase of whole shares of Company ESPP will be used to purchase shares Stock in accordance with the terms of the Company ESPP, and each share purchased thereunder will such shares of Company Stock shall be canceled at the Effective Time outstanding shares of Company Stock and converted into the right entitled to receive the Merger Consideration pursuant in accordance with Section 2.05. The Company, the Company Board or a committee thereof shall adopt such resolutions as are necessary to Section 2.1(a), subject to withholding terminate the Company ESPP effective as of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Prior immediately prior to the Effective Time (but subject to the consummation of the Merger), the Company will cause the Company ESPP to terminate at the Effective Time, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchase.

Company ESPP. Prior The Company Board (or, if appropriate, the committee administering the Company’s Amended and Restated Employee Stock Purchase Plan (the “Company ESPP”)) will take all actions reasonably necessary with respect to the Effective Time, unless Company ESPP to provide that (A) except for the offering period underway as of periods under the Company ESPP in effect on the date hereof (the “Current Final Offering PeriodPeriods”), no new offering period will commence following the date hereof unless and until this Agreement is terminated; and (B) from and after the date hereof, no new participants will be permitted to participate in the Company ESPP and participants will not be permitted to increase their payroll deductions or purchase elections from those in effect on date of this Agreement. If the Effective Time occurs: (i) during one or more of the Final Offering Periods, (A) the final exercise date(s) under the Xyratex Ltd 2004 Employee Stock Purchase Plan Company ESPP shall be such date as the Company determines in its sole discretion (as amendedprovided that such date shall be no later than the date that is five (5) (the “Company ESPP”) terminates by its terms days prior to the Effective Time, the Company will take all action that may be necessary to: (i) cause the Current Offering Period to be terminated as of the last Business Day prior to the Effective Time (the last Business Day prior to the Effective Time, the “Designated Final Exercise Date”); , and (iiB) make any pro-rata adjustments that may be necessary to reflect the shortened Current Offering Period, but otherwise treat such shortened Current Offering Period as a fully effective and completed offering period for all purposes each Company ESPP participant’s accumulated contributions under the Company ESPP (the completion of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be exercised; provided, however, that the actions described in clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On the Designated Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will shall be used to purchase shares whole Shares in accordance with the terms of the Company ESPPESPP as of the Final Exercise Date, and each share purchased thereunder will which Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled cancelled at the Effective Time and converted into in exchange for the right to receive the Merger Consideration pursuant to in accordance with Section 2.1(a); or (ii) after the end of the Final Offering Period(s), subject all amounts allocated to withholding each participant’s account under the Company ESPP at the end of applicable income and employment withholding Taxes pursuant such Final Offering Periods shall thereupon be used to Section 2.2(f). Prior purchase whole Shares under the terms of the Company ESPP for such offering period, which Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 2.1(a). As promptly as practicable following the purchase of Shares in accordance with the foregoing clauses (subject to the consummation of the Mergeri) or (ii), the Company will cause shall return to each participant the Company ESPP to terminate at funds, if any, that remain in such participant’s account after such purchase. As of the Effective Time, and the Company hereby represents ESPP shall be terminated and warrants to Parent and Purchaser that it will take all actions necessary no further Shares in the Company or other rights with respect to the Company ESPP so that (A) no offering periods or purchase periods will Shares shall be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchasegranted thereunder.