Exhibit 2.02
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is made and
entered into as of March 22, 2000, between Xxxxxxx.xxx Inc., a Cayman Islands
corporation ("Xcelera"), and Exodus Communications, Inc., a Delaware corporation
(the "Investor"). In consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereby agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK. Subject to the terms and
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conditions of this Agreement, at the Closing referred to in Section 2 below,
Xcelera agrees to sell to the Investor, and the Investor agrees to purchase from
Xcelera, 24,512,320 shares of Common Stock of Mirror Image Internet, Inc., a
Delaware corporation (the "Company"), $0.01 par value per share (the "Shares"),
at a price of $19.48 per share, for an aggregate purchase price of $477,500,000
(the "Purchase Price").
2. CLOSING OF PURCHASE AND SALE. The consummation of the purchase and
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sale of the Shares provided for herein (the "Closing") will take place at
Fenwick & West LLP, Two Palo Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, on the
second business day after all of the conditions to closing set forth in Sections
6 and 7 hereof have been satisfied and/or waived (other than conditions which
are not capable of being satisfied until the Closing Date) in accordance with
this Agreement, or at such other time and place as Xcelera and the Investor
mutually agree upon (the "Closing Date"). At the Closing, Xcelera shall
instruct the Company to deliver as soon as reasonably practicable to the
Investor the stock certificate representing the Shares being purchased by the
Investor hereunder and Xcelera hereby instructs the Company to (a) cancel
Xcelera's existing stock certificate; (b) issue a duly executed stock
certificate evidencing the Shares in the Investor's name; and (c) issue a duly
executed stock certificate evidencing the number of shares remaining after the
transfer to the Investor in Xcelera's name. At the Closing, the Investor will
deliver to Xcelera (a) a wire transfer of funds to Xcelera in the amount of
$25,000,000; and (b) a certificate representing 3,023,318 shares of the
Investor's common stock, $0.01 par value per share registered in the name of
Xcelera ("Investor Common Shares").
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTOR. The
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Investor hereby represents and warrants to Xcelera as follows:
3.1 Authorization; Enforceability. The Investor has all requisite
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power and authority to enter into this Agreement and to purchase the Shares.
This Agreement has been duly executed and delivered by the Investor.
3.2 Valid Issuance of Stock.
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(a) The Investor Common Shares, when issued and paid for as
provided in this Agreement will be duly authorized and validly issued, fully
paid and nonassessable and will be free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest other than those created by
Xcelera.
(b) Based in part on the representations made by Xcelera in
Section 4 hereof, the offer and sale of the Investor Common Shares solely to
Xcelera in accordance with this Agreement are exempt from the registration and
prospectus delivery requirements of the Securities Act and the securities
registration and qualification requirements of the currently effective
provisions of the securities laws of the States of California and Massachusetts
3.3 Purchase for Own Account. The Investor is acquiring the Shares
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solely for the Investor's own account, for investment purposes only and not with
a view to, or for resale in connection with, any distribution or public offering
of the Shares within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). The Investor has no present intention to sell, offer to
sell, or otherwise dispose of or distribute any of the Shares.
The Investor will hold the entire legal and beneficial interest in and to the
Shares and does not presently intend to divide or share such interest with any
other person or entity.
3.4 Restricted Securities. The Investor understands that the Shares
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are characterized as "restricted securities" under the Securities Act inasmuch
as they are being acquired from Xcelera in a transaction not involving a public
offering and that under the Securities Act and applicable regulations thereunder
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. In this connection, the Investor represents
that the Investor is familiar with Rule 144 of the SEC, as presently in effect,
and understands the resale limitations imposed thereby and by the Securities
Act. The Investor understands that the Company is under no obligation to
register any of the securities sold hereunder except as provided in the First
Amended and Restated Investors' Rights Agreement among the Company, Xcelera and
the Investor to be entered into in connection with the MII Purchase Agreement.
The Investor understands that no public market now exists for any of the Shares
and that it is uncertain whether a public market will ever exist for the Shares.
3.5 Further Limitations on Disposition. Without in any way limiting
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the representations set forth above, the Investor further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) the Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and, at the expense of the
Investor or its transferee, with an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration of such
securities under the Securities Act.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required: (i) for any
transfer of any Shares in compliance with SEC Rule 144 or Rule 144A, or (ii) for
any transfer of Shares to (A) a stockholder, or (B) the estate of any such
stockholder; provided that in each of the foregoing cases the transferee agrees
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in writing to be subject to the terms of this Section 3 to the same extent as if
the transferee were the Investor.
3.6 Rule 144. The Investor has been advised that SEC Rule 144
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promulgated under the Securities Act, which permits certain limited sales of
unregistered securities in specified circumstances, is not presently available
with respect to the Shares and, in any event, requires that the Shares be held
for a minimum of one year (and in some cases longer) after they have been
purchased and paid for (within the meaning of Rule 144) before they may be
resold under Rule 144.
3.7 Legends. The Investor understands and agrees that all
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certificate(s) evidencing the Shares (and any securities issued in respect of
the Shares upon any stock split, stock dividend, merger, reorganization or
recapitalization) will be imprinted with a legend that reads substantially as
set forth below, together with any other legends that, in the opinion of legal
counsel to Xcelera, are required by the Securities Act or by other federal or
state securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFER-ABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
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ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
3.8 Disclosure of Information. The Investor has received or has had full
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access to all the information it considers necessary or appropriate to make an
informed investment decision with respect to the Shares to be purchased by the
Investor under this Agreement. The Investor further has had an opportunity to
ask questions and receive answers from Xcelera regarding the terms and
conditions of the offering of the Shares and to obtain additional information
(to the extent Xcelera possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to
the Investor or to which the Investor had access. The foregoing, however, does
not in any way limit or modify the representations and warranties made by
Xcelera in Section 4.
3.9 Investment Experience. The Investor understands that the purchase of
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the Shares involves substantial risk. The Investor: (a) has experience as an
investor in securities of companies in the development stage and acknowledges
that the Investor is able to fend for itself, can bear the economic risk of the
Investor's investment in the Shares and has such knowledge and experience in
financial or business matters that the Investor is capable of evaluating the
merits and risks of this investment in the Shares and protecting its own
interests in connection with this investment and/or (b) has a preexisting
personal or business relationship with the Company and certain of its officers,
directors or controlling persons of a nature and duration that enables the
Investor to be aware of the character, business acumen and financial
circumstances of such persons.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF XCELERA. Xcelera hereby
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represents and warrants to the Investor as follows:
4.1 Title to Shares. Immediately prior to the Closing, Xcelera had
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valid marketable title to the Shares to be transferred under this Agreement,
free and clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest.
4.2 Consents. No consent, approval, order or authorization of, or
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registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority is required on the part of
Xcelera in order to enable Xcelera to execute, deliver and perform its
obligations under this Agreement except for the filings required by the HSR Act
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and those which would not have a material adverse effect on Xcelera.
4.3 Authorization; Enforceability. Xcelera has all requisite power and
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authority to enter into this Agreement and to receive the Investor Common
Shares. This Agreement has been duly executed and delivered by Xcelera.
4.4 Purchase for Own Account. Xcelera is acquiring the Investor Common
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Shares solely for Xcelera's own account, for investment purposes only and not
with a view to, or for resale in connection with, any distribution or public
offering of the Shares within the meaning of the Securities Act, except pursuant
to the shelf registration statement on Form S-3 to be filed by the Investor
pursuant to the Registration Rights Agreement dated of even date herewith among
the Company, Xcelera and the Investor. Xcelera will hold the entire legal and
beneficial interest in and to the Investor Common Shares and does not presently
intend to divide or share such interest with any other person or entity.
4.5 Restricted Securities. Xcelera understands that the Investor Common
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Shares are characterized as "restricted securities" under the Securities Act
inasmuch as they are being acquired from Xcelera in a transaction not involving
a public offering and that under the Securities Act and applicable regulations
thereunder such securities may be resold without registration under the
Securities Act only in certain limited circumstances. In this connection,
Xcelera represents that Xcelera is familiar with Rule 144 of the SEC, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act. Xcelera understands that the Investor is under no
obligation to register any of the securities received hereunder except as
provided in the Registration Rights Agreement dated of even date herewith among
the Company, Xcelera and the Investor.
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4.6 Further Limitations on Disposition. Without in any way limiting the
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representations set forth above, Xcelera further agrees not to make any
disposition of all or any portion of the Investor Common Shares unless and
until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) Xcelera shall have notified the Investor of the proposed
disposition and shall have furnished the Investor with a statement of the
circumstances surrounding the proposed disposition, and, at the expense of
Xcelera or its transferee, with an opinion of counsel, reasonably satisfactory
to the Investor, that such disposition will not require registration of such
securities under the Securities Act.
Paragraphs (a) and (b) above shall not be applicable: (i) for any transfer of
any Investor Common Shares in compliance with SEC Rule 144 or Rule 144A, or (ii)
for any transfer of Investor Common Shares to (A) a stockholder, or (B) the
estate of any such stockholder; provided that in each of the foregoing cases
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(other than a Rule 144 transfer) the transferee agrees in writing to be subject
to the terms of this Section 4 to the same extent as if the transferee were
Xcelera.
4.7 Rule 144. Xcelera has been advised that SEC Rule 144 promulgated
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under the Securities Act, which permits certain limited sales of unregistered
securities in specified circumstances, requires that the Investor Common Shares
be held for a minimum of one year (and in some cases longer) after they have
been purchased and paid for (within the meaning of Rule 144) before they may be
resold under Rule 144.
4.8 Legends. Xcelera understands and agrees that all certificate(s)
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evidencing the Investor Common Shares (and any securities issued in respect of
the Investor Common Shares upon any stock split, stock dividend, merger,
reorganization or recapitalization) will be imprinted with a legend that reads
substantially as set forth below, together with any other legends that, in the
opinion of legal counsel to the Investor, are required by the Securities Act or
by other federal or state securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFER-ABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
The legend set forth above shall be removed by the Investor from any certificate
evidencing Investor Common Shares in connection with a disposition pursuant to a
registration statement under the Securities Act or upon delivery to the Investor
of an opinion by counsel, reasonably satisfactory to the Investor that such
security can be freely transferred in a public sale without such a registration
statement being in effect and that such transfer will not jeopardize the
exemption or exemptions from registration pursuant to which the Investor issued
the Investor Common Shares.
4.9 Disclosure of Information. Xcelera has received or has had full
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access to all the information it considers necessary or appropriate to make an
informed investment decision with respect to the Investor Common Shares to be
received by Xcelera under this Agreement. Xcelera further has had an
opportunity to ask questions and receive answers from the Investor regarding the
terms and conditions of the offering of the Investor Common Shares and to obtain
additional information (to the extent the Investor possessed such information
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or could acquire it without unreasonable effort or expense) necessary to verify
any information furnished to Xcelera or to which Xcelera had access. The
foregoing, however, does not in any way limit or modify the representations and
warranties made by the Investor in Section 3.
4.10 Investment Experience. Xcelera understands that the purchase of the
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Investor Common Shares involves substantial risk. Xcelera: (a) has experience
as an investor in securities of companies in the development stage and
acknowledges that Xcelera is able to fend for itself, can bear the economic risk
of Xcelera's investment in the Investor Common Shares and has such knowledge and
experience in financial or business matters that Xcelera is capable of
evaluating the merits and risks of this investment in the Investor Common Shares
and protecting its own interests in connection with this investment and/or (b)
has a preexisting personal or business relationship with the Investor and
certain of its officers, directors or controlling persons of a nature and
duration that enables Xcelera to be aware of the character, business acumen and
financial circumstances of such persons.
5. PRE-CLOSING COVENANTS. During the time period from the date of this
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Agreement until the Closing:
5.1 Regulatory Approvals. The parties will promptly execute and
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file, or join in the execution and filing, of any application, notification or
any other document that may be necessary in order to obtain the authorization,
approval or consent of any governmental authority, whether federal, state, local
or foreign, which may be reasonably required in connection with the consummation
of the transactions contemplated hereby. The parties will use diligent efforts
to obtain all such authorizations, approvals and consents.
5.2 Satisfaction of Conditions Precedent. Xcelera will use its
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diligent efforts to satisfy or cause to be satisfied all the conditions
precedent which are set forth in Section 6, the Investor will use its diligent
efforts to satisfy or cause to be satisfied all the conditions precedent which
are set forth in Section 7, and the parties will use their diligent efforts to
cause the transactions contemplated by this Agreement to be consummated in
accordance with this Agreement.
6. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of
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the Investor under this Agreement are subject to the fulfillment or waiver, on
or before the Closing, of each of the following conditions:
6.1 Representations and Warranties True. The representations and
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warranties of Xcelera set forth in Section 3 (a) that are qualified as to
materiality will be true and correct and (b) that are not qualified as to
materiality shall be true and correct in all material respects, in each case on
and as of the Closing with the same force and effect as if they had been made at
the Closing Date (except for any such representations or warranties that, by
their terms, speak only as of a specific date or dates, in which case such
representations and warranties that are qualified as to materiality shall be
true and correct, and such representations and warranties that are not qualified
as to materiality shall be true and correct in all material respects, on and as
of such specified date or dates).
6.2 Performance. Xcelera shall have performed and complied in all
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material respects with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing and shall have obtained all material approvals, consents and
qualifications necessary to complete the purchase and sale described herein.
6.3 Compliance Certificate. Xcelera shall have delivered to the Investor
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at the Closing a certificate signed on its behalf by its President, Chief
Executive Officer, or Chief Financial Officer certifying that the conditions
specified in Sections 6.1 and 6.2 have been fulfilled.
6.4 Securities Exemptions. The offer and sale of the Shares to the
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Investor pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act, the qualification requirements of the
California Corporate Securities Law of 1968, as amended (the "Law") and the
registration and/or qualification requirements of all other applicable state
securities laws.
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6.5 Proceedings and Documents. All corporate and other proceedings in
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connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor and to the Investor's counsel, and they shall each have received all
such certified or other copies of such documents as they may reasonably request.
Such documents shall consist of the following:
(a) Certified Charter Documents. A copy of the organizational
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document and the Bylaws of Xcelera (as amended through the date of the Closing),
certified by the Secretary of Xcelera as true and correct copies thereof as of
the Closing.
(b) Corporate Actions. A copy of the resolutions of the Board of
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Directors and, if required, the stockholders of Xcelera evidencing the approval
of this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement, the
Registration Rights Agreement and the Voting Agreement and the other matters
contemplated hereby, certified by the Secretary of Xcelera to be true, complete
and correct.
6.6 Investors' Rights Agreement. The Company and Xcelera shall have
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executed and delivered the Investors' Rights Agreement in the form attached to
this Agreement as Exhibit A (the "Investors' Rights Agreement").
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6.7 Co-Sale Agreement. The Company and Xcelera shall have executed and
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delivered the Right of First Refusal and Co-Sale Agreement in the form attached
to this Agreement as Exhibit B (the "Co-Sale Agreement").
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6.8 Registration Rights Agreement. The Company and Xcelera shall have
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executed and delivered the Registration Rights Agreement in the form attached to
this Agreement as Exhibit C (the "Registration Rights Agreement").
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6.9 MII Purchase Agreement. The Closing (as defined in the Common Stock
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Purchase Agreement dated as of March 22, 2000 among the Company, Xcelera and the
Investor (the "MII Purchase Agreement")) shall have occurred. This condition
may be satisfied concurrently with the Closing of this Agreement.
6.10 Voting Agreement. Xcelera shall have executed and delivered the
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Voting Agreement in the form attached to this Agreement as Exhibit D (the
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"Voting Agreement").
6.11 Xxxx-Xxxxx-Xxxxxx Compliance. All applicable waiting periods
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under the HSR Act shall have expired or early termination shall have been
granted by both the Federal Trade Commission and the United States Department of
Justice.
7. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
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Xcelera to the Investor under this Agreement are subject to the fulfillment or
waiver on or before the Closing of each of the following conditions by the
Investor:
7.1 Representations and Warranties. The representations and warranties
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of the Investor set forth in Section 4 (a) that are qualified as to materiality
will be true and correct and (b) that are not qualified as to materiality shall
be true and correct in all material respects, in each case on and as of the
Closing with the same force and effect as if they had been made at the Closing
Date (except for any such representations or warranties that, by their terms,
speak only as of a specific date or dates, in which case such representations
and warranties that are qualified as to materiality shall be true and correct,
and such representations and warranties that are not qualified as to materiality
shall be true and correct in all material respects, on and as of such specified
date or dates).
7.2 Performance. The Investor shall have performed and complied with all
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agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing and
shall have obtained all material approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
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7.3 Compliance Certificate. The Investor shall have delivered to Xcelera
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at the Closing a certificate signed on its behalf by its President, Chief
Executive Officer, or Chief Financial Officer certifying that the conditions
specified in Sections 7.1 and 7.2 have been fulfilled.
7.4 Proceedings and Documents. All corporate and other proceedings in
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connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Company and to the Company's counsel, and they shall each have received all such
certified or other copies of such documents as they may reasonably request.
Such documents shall consist of the following:
(a) Certified Charter Documents. A copy of the Certificate of
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Incorporation and the Bylaws of the Investor (as amended through the date of the
Closing), certified by the Secretary of the Investor as true and correct copies
thereof as of the Closing.
(b) Corporate Actions. A copy of the resolutions of the Board of
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Directors and, if required, the stockholders of the Investor evidencing the
approval of this Agreement, the Investors' Rights Agreement, the Co-Sale
Agreement, the Registration Rights Agreement, the Letter Agreement and the
Voting Agreement, the issuance of the Investor Common Shares and the other
matters contemplated hereby, certified by the Secretary of the Investor to be
true, complete and correct.
7.5 Payment of Purchase Price. The Investor shall have delivered to
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the Company the purchase price in accordance with the provisions of Section 2.
7.6 Securities Exemptions. The offer and sale of the Shares to the
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Investor pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act, the qualifications requirements of the Law
and the registration and/or qualification requirements of all other applicable
state securities laws.
7.7 Investors' Rights Agreement. The Investor shall have executed and
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delivered the Investors' Rights Agreement.
7.8 Co-Sale Agreement. The Investor shall have executed and delivered
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the Co-Sale Agreement.
7.9 Registration Rights Agreement. The Investor shall have executed and
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delivered the Registration Rights Agreement.
7.10 Letter Agreement. The Investor shall have executed and delivered the
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Letter Agreement.
7.11 MII Purchase Agreement. The Closing (as defined in the MII Purchase
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Agreement) shall have occurred. This condition may be satisfied concurrently
with the Closing of this Agreement.
7.12 Voting Agreement. The Investor shall have executed and delivered the
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Voting Agreement.
7.13 Xxxx-Xxxxx-Xxxxxx Compliance. All applicable waiting periods
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under the HSR Act shall have expired or early termination shall have been
granted by both the Federal Trade Commission and the United States Department of
Justice.
7.14 Nasdaq Listing. The Investor Common Shares shall be authorized
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for listing on the Nasdaq Stock Market, subject to notice of issuance.
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8. MISCELLANEOUS PROVISIONS.
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8.1 Modification; Waiver. No modification or waiver of any provision
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of this Agreement or consent to departure therefrom shall be effective unless
executed in writing by the parties hereto.
8.2 Successors and Assigns. Except as otherwise stated herein, all
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covenants and agreements of the parties contained in this Agreement shall be
binding upon and inure to the benefit of their respective successors. This
Agreement is not assignable by any party hereto without the written consent of
the other party hereto
8.3 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, excluding that body of law pertaining to conflict of laws or choice
of law.
8.4 Counterparts. This Agreement may be executed in two
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.5 Entire Agreement. This Agreement constitutes the entire
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agreement between the parties with respect to the subject matter hereof and
supersedes any and all prior agreements or understandings, whether oral or
written, with respect to such subject matter.
8.6 Survival of Warranties.
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(a) Generally.
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(i) The representations, warranties and covenants of Xcelera
and the Investor contained in or made pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the Closing and shall in no way
be affected by any investigation of the subject matter thereof made by or on
behalf of the Investor or Xcelera, or their respective counsel, as the case may
be. The indemnification provided for in this Section 8.6 shall not apply unless
and until the aggregate amounts of losses, liabilities or damages ("Losses")
incurred by an Indemnified Person (as defined below) as a result of a breach of
the representations, warranties and covenants by an Indemnifying Person (as
defined below) under this Agreement and the MII Purchase Agreement exceed a
cumulative aggregate of $6,375,000, in which event the Indemnifying Person
shall, subject to the other limitations herein, be liable for all such amounts.
Notwithstanding the foregoing, in no event shall the aggregate liability of the
Company and Xcelera on one hand, or the Investor on the other hand, under this
Section 8.6 or under Section 9.1 of the MII Purchase Agreement, exceed
$159,375,000.
(ii) Claims against an Indemnifying Person may be satisfied, to
the extent desired by an Indemnifying Person, by the delivery of common stock
acquired pursuant to this Agreement or the MII Purchase Agreement. Shares of
such common stock then traded on a national securities exchange or the Nasdaq
National Market (or a similar national quotation system) shall be deemed to have
a value of the average of the closing prices of the shares of common stock on
such exchange or system over the ten-day period ending three days prior to such
delivery. Shares of such common stock with no active public market shall be
deemed to have a value of the fair market value thereof, as determined in good
faith by the Board of Directors of the issuer of such shares of common stock.
(b) Procedure. Each person entitled to indemnification under this
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Agreement (an "Indemnified Person") shall give notice to the party required to
provide indemnification (the "Indemnifying Person") promptly after such
Indemnified Person has actual knowledge of any claim as to which indemnity may
be sought and shall permit the Indemnifying Person to assume the defense of any
such claim and any litigation resulting therefrom, provided that counsel for the
Indemnifying Person who conducts the defense of such claim or any litigation
resulting therefrom shall be approved by the Indemnified Person (whose approval
shall not unreasonably be withheld), and the Indemnified Person may participate
in such defense at such party's expense (unless the Indemnified Person has
reasonably concluded that there may be a conflict of interest between the
Indemnifying Person and the Indemnified Person in such action or unless the
Indemnifying Person fails to assume
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the defense or pursue it in good faith, in which case the fees and expenses of
counsel for the Indemnified Person shall be at the expense of the Indemnifying
Person), and provided further that the failure of any Indemnified Person to give
notice as provided herein shall not relieve the Indemnifying Person of its
obligations under this Section 9.1 except to the extent the Indemnifying Person
is materially prejudiced thereby. No Indemnifying Person, in the defense of any
such claim or litigation, shall (except with the consent of each Indemnified
Person) consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Person of a release from all liability in respect
to such claim or litigation. Each Indemnified Person shall furnish such
information regarding itself or the claim in question as an Indemnifying Person
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
8.7 Headings. The headings and captions used in this Agreement are
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used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
8.8 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or on the
next business day following deposit with a nationally recognized overnight
courier service and addressed to the party to be notified at the following
address:
(a) If to the Investor:
Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
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(b) If to Xcelera:
Xxxxxxx.xxx Inc.
X.X. Xxx 000
Xxxxxx House
South Church Street
Grand Cayman Islands, British West Indies
Attention: Xxxxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
00 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxx, President
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as the party in question may have furnished to the
other party by written notice given in accordance with this Section 8.8.
8.9 Costs, Expenses. Each party will bear its respective expenses
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incurred with respect to this Agreement and the transactions contemplated
hereby.
8.10 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, such provision(s) shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
8.12 Further Assurances. From and after the date of this Agreement, upon
------------------
the request of the Investor or Xcelera, the Investor and Xcelera shall execute
and deliver such instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives effective as of the date and year first
above written.
Xxxxxxx.xxx Inc., Exodus Communications, Inc.,
a Cayman Islands corporation a Delaware corporation
Name: /s/ Xxxxxxxxx X. Xxx Name: /s/ Xxxxx X. Xxxxxxx
----------------------------- --------------------------------
By: Xxxxxxxxx X. Xxx By: Xxxxx X. Xxxxxxx
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Title: Chief Executive Officer Title: Chief Executive Officer
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[Signature Page to Common Stock Purchase Agreement]
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