Exhibit 10.76
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of July 6, 2000,
among Exodus Communications, Inc., a Delaware corporation (the "Company"),
Xxxxxxx, Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx
Xxxxxxx & Co. Incorporated, Chase Securities Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, FleetBoston Xxxxxxxxx Xxxxxxxx Inc. and Xxxxxx Xxxxxx
Partners LLC (each an "Initial Purchaser" and, collectively, the "Initial
Purchasers") each of whom has agreed to purchase the Company's $1,000,000,000
principal amount of 11-5/8% Senior Notes due 2010 (the "Securities") pursuant to
the Purchase Agreement, dated June 28, 2000, by and among the Company and
Initial Purchasers (the "Purchase Agreement").
The Company proposes to issue and sell and the Initial Purchasers
propose to purchase the Securities upon the terms set forth in the Purchase
Agreement. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company agrees with the Initial Purchasers
for the benefit of holders (as defined herein) from time to time of the Transfer
Restricted Securities as follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Affiliate" shall have the meaning ascribed thereto by Rule 144 of the
Act.
"Business Days" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the City of
New York, New York are authorized or obligated by law or executive order to
close.
"Broker-Dealer" shall mean any broker or dealer registered with the
Commission under the Exchange Act.
"Closing Date" shall mean the date hereof.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time" shall mean (i) with regard to the Exchange
Registration, the time and date as of which the Commission declares the
Exchange Offer Registration Statement effective or as of which the Exchange
Offer Registration Statement otherwise becomes effective and (ii) with
regard to the Shelf Registration, the time and date as of which the
Commission declares the Shelf Registration Statement effective or as of
which the Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Transfer Restricted
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Holder" shall mean with respect to the Transfer Restricted
Securities, each of the Initial Purchasers and other persons who acquire
Transfer Restricted Securities from time to time (including any successors
or assigns), in each case for so long as such person owns any Transfer
Restricted Securities.
"Indenture" shall mean the Indenture, dated as of July 6, 2000,
between the Company and Chase Manhattan Bank and Trust Company, National
Association, as Trustee, as the same shall be amended from time to time.
"Liquidated Damages" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"Person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Press Release" shall have the meaning given thereto in the Indenture.
"Prospectus" shall have the meaning ascribed to it in Section 2(a)(10)
of the Act.
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"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of a distribution within
the meaning of the Act of Exchange Securities and (iv) a holder that is a
Broker-Dealer, but only with respect to Exchange Securities received by
such Broker-Dealer pursuant to an Exchange Offer in exchange for Transfer
Restricted Securities acquired by the Broker-Dealer directly from the
Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Act (or any successor provision), as the same
shall be amended from time to time.
"Securities" shall mean, collectively, the 11-5/8% Senior Notes due
2010 of the Company to be issued and sold to the Initial Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Transfer Restricted Securities" shall mean each Security until the
earliest of (i) the date on which such Security has been exchanged by a
person other than a Broker-Dealer for an Exchange Security in an Exchange
Offer, (ii) following the exchange by a Broker-Dealer in the Exchange Offer
of a Security for an Exchange Security, the date on which such Exchange
Security is sold to a purchaser who receives from such Broker-Dealer on or
prior to the date of such sale a copy of the Prospectus used in connection
with such Exchange Offer, (iii) the date on which such Security has been
effectively registered under the Act and disposed of in accordance with a
Shelf Registration Statement or (iv) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "Clause" refers to a Section or clause, as the case may be, of this Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this
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Exchange and Registration Rights Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file with the Commission, as soon as practicable after the Closing Date, but no
later than 60 days after the Closing Date, a registration statement relating to
an offer to exchange (such registration statement, the "Exchange Offer
Registration Statement", and such offer, the "Exchange Offer") any and all of
the Securities for a like aggregate principal amount of debt securities issued
by the Company, which debt securities are substantially identical to the
Securities (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been registered
pursuant to an effective registration statement under the Act and do not contain
provisions for liquidated damages contemplated in Section 2(c) below (such new
debt securities hereinafter called "Exchange Securities"). The Company agrees
to use its best efforts to cause the Exchange Offer Registration Statement to
become effective under the Act as soon as practicable, but no later than 150
days after the Closing Date. The Exchange Offer will be registered under the
Act on the appropriate form and will comply with all applicable tender offer
rules and regulations under the Exchange Act. Unless the Exchange Offer would
not be permitted by applicable law or Commission policy, the Company further
agrees to use its best efforts (i) to complete the Exchange Offer promptly, but
no later than 30 Business Days after the Exchange Offer Registration Statement
becomes effective or is declared effective by the Commission, (ii) to hold the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws, provided however, that in no
event shall such period be less than 20 Business Days after the mailing of
notice to holders of such Exchange Offer Registration Statement being declared
effective, and (iii) to issue Exchange Securities for all Transfer Restricted
Securities that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have
been "completed" only if the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Transfer Restricted Securities are,
upon receipt, transferable by each such holder without need for further
compliance with Section 5 of the Act and the Exchange Act (except for the
requirement to deliver a Prospectus included in the Exchange Offer Registration
Statement applicable to resales by Broker-Dealers of Exchange Securities
received by such Broker-Dealer pursuant to an Exchange Offer in exchange for
Transfer Restricted Securities other than those acquired by the Broker-Dealer
directly from the Company), and without material restrictions under the blue sky
or securities laws of a substantial majority of the States of the United States
of America. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company having exchanged the Exchange Securities for
all outstanding Transfer Restricted Securities pursuant to the Exchange Offer
and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Transfer Restricted Securities that have been properly
tendered and not withdrawn before the expiration of the Exchange Offer. If the
Company is notified prior to the completion of the Exchange Offer by a Broker-
Dealer that is a holder of Transfer Restricted Securities (other than Transfer
Restricted Securities received by the Broker-Dealer directly from the Company),
then the Company agrees (x) to include in the Exchange Offer
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Registration Statement a Prospectus for use in connection with any resales of
Exchange Securities by a Broker-Dealer, other than resales of Exchange
Securities received by a Broker-Dealer pursuant to an Exchange Offer in exchange
for Transfer Restricted Securities acquired by the Broker-Dealer directly from
the Company, and (y) to keep such Exchange Offer Registration Statement
effective for a period (the "Resale Period") beginning when Exchange Securities
are first issued in the Exchange Offer and ending upon the earlier of the
expiration of the 180th day after the Exchange Offer has been completed or such
time as such Broker-Dealers no longer own any Transfer Restricted Securities.
With respect to such Exchange Offer Registration Statement, each Broker-Dealer
that holds Exchange Securities received in an Exchange Offer in exchange for
Transfer Restricted Securities not acquired by it directly from the Company
shall have the benefit of the rights of indemnification and contribution set
forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) the Company is not permitted to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any holder of Transfer Restricted Securities notifies
the Company prior to the 20th day following completion of the Exchange Offer
that (A) it is prohibited by law or Commission policy from participating in the
Exchange Offer or (B) that it may not resell in compliance with the Act or
Commission policy the Exchange Securities acquired by it in the Exchange Offer
to the public without delivering a Prospectus and the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales or (C) that it is a Broker-Dealer and owns Securities acquired
directly from the Company or an Affiliate, then in lieu of conducting the
Exchange Offer for such Transfer Restricted Securities contemplated by Section
2(a) the Company shall use its best efforts to file with the Commission as soon
as practicable, but no later than 45 days after the date on which the Company
determines that it is not permitted to file the Exchange Offer Registration
Statement pursuant to clause (i) above or 45 days after the date on which the
Company receives the notice specified in clause (ii) above (but in either case,
in no event less than 60 days after the Closing Date), a "shelf" registration
statement providing for the registration of, and the sale on a continuous or
delayed basis by the holders of, all of the Transfer Restricted Securities,
pursuant to Rule 415 or any similar rule that may be adopted by the Commission,
which may be an amendment to the Exchange Offer Registration Statement (such
filing, the "Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Company agrees to use its best efforts (i) to
cause the Shelf Registration Statement to become or be declared effective by the
Commission on or prior to 90 days after such obligation arises (but in no event
less than 150 days after the Closing Date) and to keep such Shelf Registration
Statement continuously effective in order to permit the Prospectus forming a
part thereof to be usable by holders for resales of Transfer Restricted
Securities for a period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Transfer Restricted
Securities outstanding, provided, however, that no holder shall be entitled to
be named as a selling securityholder in the Shelf Registration Statement or to
use the Prospectus forming a part thereof for resales of Transfer Restricted
Securities unless such holder is an Electing Holder, and (ii) after the
Effective Time of the Shelf Registration Statement, promptly upon the request of
any holder of Transfer Restricted Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder to use the
Prospectus forming a part thereof for resales of Transfer Restricted Securities,
including, without limitation, any action necessary to identify such holder as a
selling securityholder
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in the Shelf Registration Statement, provided, however, that nothing in this
Clause (ii) shall relieve any such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in accordance with
Section 3(d)(iii) hereof. No holder of Securities shall be entitled to
Liquidated Damages pursuant to 2(c) hereof unless and until such holder shall
have provided all such information. The Company further agrees to supplement or
make amendments to the Shelf Registration Statement, as and when required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Act or rules and
regulations thereunder for shelf registration, and the Company agrees to furnish
to each Electing Holder copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange Offer
Registration Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement
or Shelf Registration Statement has not become effective or been declared
effective by the Commission on or before the date on which such registration
statement is required to become or be declared effective pursuant to Section
2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been completed
within 30 Business Days after the initial effective date of the Exchange Offer
Registration Statement relating to the Exchange Offer (if the Exchange Offer is
then required to be made) or (iv) any Exchange Offer Registration Statement or
Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed
and declared effective, but shall thereafter cease to be effective or usable in
connection with resales of Transfer Restricted Securities during the periods
specified in Section 2(a) or 2(b), respectively, (except as specifically
permitted herein, including pursuant to Sections 3(c)(ii) and (iv) and 3(d)(iv)
and 3(e)) without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then, the Company will pay liquidated damages to each holder of
Transfer Restricted Securities affected thereby (such liquidated damages, the
"Liquidated Damages"), with respect to the first 90-day period immediately
following the occurrence of the first Registration Default in an amount equal to
$0.05 per week such Registration Default continues per $1,000 principal amount
of Transfer Restricted Securities held by such holder. The amount of the
Liquidated Damages will increase by an additional $0.05 per week such
Registration Default continues per $1,000 principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Liquidated
Damages for all Registration Defaults of $0.25 per week per $1,000 principal
amount of Transfer Restricted Securities. Notwithstanding the foregoing, the
Company shall in no event be required to pay Liquidated Damages for more than
one Registration Default at any time. All accrued Liquidated Damages will be
paid by the Company on each Interest Payment Date (as defined in the Indenture)
to each holder of any Transfer Restricted Securities by wire transfer of
immediately available funds or by federal funds check and to holders of Transfer
Restricted Securities by wire transfer to the accounts specified by them or by
mailing checks to their registered addresses if no such accounts have been
specified. Following the cure of all Registration Defaults, the accrual of
Liquidated
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Damages will cease. No other damages shall be available to holders of Transfer
Restricted Securities for any Registration Default.
(d) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 60 days after the Closing Date, an Exchange Offer Registration
Statement on any form which may be utilized by the Company and which shall
permit the Exchange Offer and, if applicable, resales of Exchange Securities by
Broker-Dealers during the Resale Period to be effected as contemplated by
Section 2(a), and use its best efforts to cause such Exchange Offer Registration
Statement to become effective as soon as practicable thereafter, but no later
than 150 days after the Closing Date;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Exchange Offer Registration Statement
and the Prospectus included therein as may be necessary to effect and maintain
the effectiveness of such Exchange Offer Registration Statement for the periods
and purposes contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Offer Registration Statement, and
promptly provide each Broker-Dealer holding Exchange Securities with such number
of copies of the Prospectus included therein (as then amended or supplemented),
in conformity in all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder,
as such Broker-Dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange Securities;
provided that upon the occurrence
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of any event that would cause any such Exchange Offer Registration Statement or
the Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer Restricted
Securities, either of which occurs during the period that the Company is
required to maintain an effective and usable Exchange Offer Registration
Statement and Prospectus pursuant to this Agreement, the Company shall file
promptly an appropriate amendment or supplement to such Registration Statement
or Prospectus, (1) in the case of clause (A), correcting any such misstatement
or omission, and (2) in the case of clauses (A) and (B) use its best efforts to
cause any amendment to be declared effective and such Exchange Offer
Registration Statement and the Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter; provided further notwithstanding
anything to the contrary set forth in this Agreement, during the 180 day period
following completion of the Exchange Offer, the Company's obligations to use its
best efforts to keep the Exchange-Offer Registration Statement continuously
effective, supplemented and amended shall be suspended in the event continued
effectiveness of the Exchange-Offer Registration Statement would, with the
advice of counsel to the Company, make it advisable for the Company to disclose
a material financing, acquisition or other corporate transaction, and the Board
of Directors shall have determined in good faith that such disclosure is not in
the best interests of the Company, but in no event will any such suspension,
individually or in the aggregate, exceed sixty (60) days (such suspensions being
referred to herein as an "Exchange Suspension Period");
(iii) promptly notify in writing each Broker-Dealer that has
requested or received from the Company copies of the Prospectus included in such
Exchange Offer Registration Statement and issue a Press Release indicating the
same, (A) when such Exchange Offer Registration Statement or the Prospectus
included therein or any Prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Exchange Offer Registration
Statement or any post-effective amendment, when the same has become effective,
(B) of the issuance by the Commission of any stop order suspending the
effectiveness of such Exchange Offer Registration Statement or the initiation or
threatening of any proceedings for that purpose, (C) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Exchange Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (D) at any time during the
Resale Period when a Prospectus is required to be delivered under the Act, that
such Exchange Offer Registration Statement, Prospectus, Prospectus amendment or
supplement or post-effective amendment does not conform in all material respects
to the applicable requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each holder of Transfer Restricted
Securities agrees that upon receipt of any notice from the Company pursuant to
this Section 3(c)(iii)(D), such holder shall forthwith discontinue the
disposition of Transfer Restricted Securities pursuant to the Exchange Offer
Registration Statement applicable to such Transfer Restricted Securities until
such Broker-Dealer shall have received copies of such amended or supplemented
Prospectus, and if so directed by the Company, such Broker-Dealer shall deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Broker-Dealer's possession of the Prospectus covering such
Transfer Restricted Securities at the time of receipt of such notice;
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(iv) in the event that the Company would be required, pursuant to
Section 3(c)(iii)(D) above, to notify any Broker-Dealers holding Exchange
Securities, without unreasonable delay, subject to Section 3(c)(ii), prepare and
furnish to each such holder a reasonable number of copies of a Prospectus
supplemented or amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such Prospectus shall conform in
all material respects to the applicable requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(v) subject to the provisos in (ii) above, use its best efforts to
obtain the withdrawal of any order suspending the effectiveness of such Exchange
Offer Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(vi) use its best efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) no later than the commencement of the Exchange
Offer, (B) if applicable, keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of the Resale Period
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable each Broker-Dealer holding Exchange Securities to consummate
the disposition thereof in such jurisdictions; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi), (2) consent to
general service of process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by Broker-Dealers during the Resale
Period;
(viii) provide a CUSIP number for all Exchange Securities, not later
than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of such
Exchange Offer Registration Statement, an earning statement of the Company and
its subsidiaries complying with Section 11(a) of the Act (including, at the
option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
registration of the Transfer Restricted Securities as contemplated by Section
2(b) pursuant to the Shelf Registration, if applicable, the Company shall, as
soon as practicable (or as otherwise specified):
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(i) prepare and file with the Commission, as soon as practicable but
in any case within the time periods specified in Section 2(b), a Shelf
Registration Statement on any form which may be utilized by the Company and
which shall register all of the Transfer Restricted Securities for resale by the
holders thereof in accordance with such method or methods of disposition as may
be specified by such of the holders as, from time to time, may be Electing
Holders and use its best efforts to cause such Shelf Registration Statement to
become effective as soon as practicable but in any case within the time periods
specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, mail the Notice and Questionnaire, in the form
of Exhibit A hereto, to the holders of Transfer Restricted Securities; no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and no holder shall be entitled
to use the Prospectus forming a part thereof for resales of Transfer Restricted
Securities at any time, unless such holder has returned a completed and signed
Notice and Questionnaire to the Company by the deadline for response set forth
therein; provided, however, holders of Transfer Restricted Securities shall have
at least 28 calendar days from the date on which the Notice and Questionnaire is
first mailed to such holders to return a completed and signed Notice and
Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement,
upon the request of any holder of Transfer Restricted Securities that is not
then an Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Company shall not be required to take any action to
name such holder as a selling securityholder in the Shelf Registration Statement
or to enable such holder to use the Prospectus forming a part thereof for
resales of Transfer Restricted Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and the
Prospectus included therein, and take any other action, as may be necessary to
effect and maintain the effectiveness of such Shelf Registration Statement for
the period specified in Section 2(b) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement, and furnish to the
Electing Holders copies of any such supplement or amendment simultaneously with
or prior to its being used or filed with the Commission; provided that upon the
occurrence of any event that would cause any such Shelf Registration Statement
or the Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer Restricted
Securities, either of which occurs during the period that the Company is
required to maintain an effective and usable Shelf Registration Statement and
Prospectus pursuant to this Agreement, the Company shall file promptly an
appropriate amendment or supplement to such Registration Statement or
Prospectus, (1) in the case of clause (A), correcting any such misstatement or
omission, and (2) in the case of clauses (A) and (B) use its best efforts to
cause any amendment to be declared effective and such Shelf Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter; provided further notwithstanding
anything to the
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contrary set forth in this Agreement, the Company's obligations to use its best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended shall be suspended in the event continued effectiveness
of the Shelf Registration Statement would, with the advice of counsel to the
Company, make it advisable for the Company to disclose a material financing,
acquisition or other corporate transaction, and the Board of Directors shall
have determined in good faith that such disclosure is not in the best interests
of the Company, but in no event will any such suspension, individually or in the
aggregate, exceed ninety (90) days in any calendar year (such suspensions being
referred to herein as a "Shelf Suspension Period");
(v) comply with the provisions of the Act with respect to the
disposition of all of the Transfer Restricted Securities covered by such Shelf
Registration Statement in accordance with the intended methods of disposition by
the Electing Holders provided for in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters (which
term, for purposes of this Exchange and Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of Section 2(11)
of the Act), if any, thereof, (C) any sales or placement agent therefor, (D)
counsel for any such underwriters or agents and (E) not more than one counsel
for all the Electing Holders the opportunity to participate in the preparation
of such Shelf Registration Statement, each Prospectus included therein or filed
with the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section 2(b),
make available at reasonable times at the Company's principal place of business
or such other reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they have a current
intention to sell the Transfer Restricted Securities pursuant to the Shelf
Registration such financial and other information and books and records of the
Company, and cause the officers, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred to in
such Section, to conduct a reasonable investigation within the meaning of
Section 11 of the Act; provided, however, that each such party shall be required
to maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Company as being
confidential, until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration statement or
otherwise), or (B) such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) after the Effective Time and after
having requested, in writing, that the Company include such information in such
Shelf Registration Statement or an amendment or supplement thereto, and such
request has not been accepted by the Company within 15 days of such request,
such information, in the reasonable judgment of such party pursuant to advice of
counsel, is required to be set forth in such Shelf Registration Statement or the
Prospectus included therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such
-11-
Prospectus in order that such Shelf Registration Statement, Prospectus,
amendment or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and regulations of the
Commission and does not contain an untrue statement of a material fact or omit
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing;
(viii) promptly notify in writing each of the Electing Holders, any
sales or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose), (A) when such Shelf
Registration Statement or the Prospectus included therein or any Prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective amendment,
when the same has become effective, (B) of the issuance by the Commission of any
stop order suspending the effectiveness of such Shelf Registration Statement or
the initiation or threatening of any proceedings for that purpose, (C) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Transfer Restricted Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, or (D) (I)
if at any time when a Prospectus is required to be delivered under the Act, such
Shelf Registration Statement, Prospectus, Prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing; or (II) the occurrence of a Shelf Suspension
Period;
(ix) subject to the provisos in (iv) above, use its best efforts to
obtain the withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or underwriters, any
placement or sales agent or any Electing Holder, promptly incorporate in a
Prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Electing Holder
specifies should be included therein relating to the terms of the sale of such
Transfer Restricted Securities, including information with respect to the
principal amount of Transfer Restricted Securities being sold by such Electing
Holder or agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of such Transfer
Restricted Securities and any discount, commission or other compensation payable
in respect thereof, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the offering of the Transfer Restricted
Securities to be sold by such Electing Holder or agent or to such underwriters;
and make all required filings of such Prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
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(xi) furnish to each Electing Holder, each placement or sales agent,
if any, therefor, each underwriter, if any, thereof and the respective counsel
referred to in Section 3(d)(vi) an executed copy (or, in the case of an Electing
Holder, a conformed copy) of such Shelf Registration Statement, each such
amendment and supplement thereto (in each case including all exhibits thereto
(in the case of an Electing Holder of Transfer Restricted Securities, upon
request) and documents incorporated by reference therein) and such number of
copies of such Shelf Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so requested by
such Electing Holder, agent or underwriter, as the case may be) and of the
Prospectus included in such Shelf Registration Statement (including each
preliminary Prospectus and any summary Prospectus), in conformity in all
material respects with the applicable requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder, and
such other documents, as such Electing Holder, agent, if any, and underwriter,
if any, may reasonably request in order to facilitate the offering and
disposition of the Transfer Restricted Securities owned by such Electing Holder,
offered or sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the Prospectus delivery
requirements of the Act; and the Company hereby consents, unless it has
otherwise notified the Electing Holder under Section 3(d)(iv) or (viii) hereof,
to the use of such Prospectus (including such preliminary and summary
Prospectus) and any amendment or supplement thereto by each such Electing Holder
and by any such agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the offering and sale
of the Transfer Restricted Securities covered by the Prospectus (including such
preliminary and summary Prospectus) or any supplement or amendment thereto;
(xii) use its best efforts to (A) register or qualify the Transfer
Restricted Securities to be included in such Shelf Registration Statement under
such securities laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and underwriter, if
any, thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain effective under Section
2(b) above and for so long as may be necessary to enable any such Electing
Holder, agent or underwriter to complete its distribution of Securities pursuant
to such Shelf Registration Statement and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each such Electing Holder,
agent, if any, and underwriter, if any, to consummate the disposition in such
jurisdictions of such Transfer Restricted Securities; provided, however, that
the Company shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(d)(xii), (2)
consent to general service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or any agreement between
it and its stockholders;
(xiii) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or to consummate
the disposition of, their Transfer Restricted Securities;
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(xiv) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall be printed, lithographed or engraved, or produced by any
combination of such methods, and which shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of the Transfer Restricted Securities;
(xv) provide a CUSIP number for all Transfer Restricted Securities,
not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or similar
agreements, as appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions in connection
therewith as any Electing Holders aggregating at least 20% in aggregate
principal amount of the Transfer Restricted Securities at the time outstanding
shall reasonably request in order to expedite or facilitate the disposition of
such Transfer Restricted Securities;
(xvii) whether or not an agreement of the type referred to in Section
3(d)(xvi) hereof is entered into and whether or not any portion of the offering
contemplated by the Shelf Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the placement or
sales agent, if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made in connection with an offering of
debt securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of at least 20% in aggregate
principal amount of the Transfer Restricted Securities at the time outstanding
may reasonably request, addressed to such Electing Holder or Electing Holders
and the placement or sales agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such Shelf Registration Statement (and
if such Shelf Registration Statement contemplates an underwritten offering of a
part or all of the Transfer Restricted Securities, dated the date of the closing
under the underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall include the due incorporation and
good standing of the Company and its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as foreign corporations; the
due authorization, execution and delivery by the Company of the relevant
agreement of the type referred to in Section 3(d)(xvi) hereof; the due
authorization, execution, authentication and issuance by the Company, and the
validity and enforceability, of the Securities; the absence of knowledge of such
counsel of material legal or governmental proceedings involving the Company; the
absence of governmental approvals required to be obtained in connection with the
Shelf Registration, the offering and sale of the Transfer Restricted Securities,
this Exchange and Registration Rights Agreement or any agreement of the type
referred to in Section 3(d)(xvi) hereof, except such approvals as are referenced
in the Shelf Registration Statement or as may be required under state securities
or blue sky laws; the material compliance as to form of such
-14-
Shelf Registration Statement and any documents incorporated by reference therein
and of the Indenture with the requirements of the Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, respectively;
and the expression of the belief of such counsel as to the absence of any facts
having come to the attention of such counsel that have caused them to believe
that such Shelf Registration Statement and the Prospectus included therein, as
then amended or supplemented, as of the date of the opinion and of the Shelf
Registration Statement or most recent post-effective amendment thereto, as the
case may be, and from the documents incorporated by reference therein as of the
dates of such documents (in each case other than the financial statements,
related notes, related schedules and other financial data contained therein)
contained an untrue statement of a material fact or omitted to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made, and in the case of the documents
incorporated by reference, in the light of the circumstances existing at the
time that such documents were filed with the Commission under the Exchange Act,
not misleading); (C) obtain a "comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the underwriters, if
any, thereof, dated (i) the effective date of such Shelf Registration Statement
and (ii) the effective date of any Prospectus supplement to the Prospectus
included in such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest such
statements included in such Prospectus (and, if such Shelf Registration
Statement contemplates an underwritten offering pursuant to any Prospectus
supplement to the Prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which includes
unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such Prospectus,
dated the date of the closing under the underwriting agreement relating
thereto), such letter or letters to be in customary form and covering such
matters of the type customarily covered by letters of such type; (D) deliver
such documents and certificates, including officers' certificates, as may be
reasonably requested by any Electing Holders of at least 20% in aggregate
principal amount of the Transfer Restricted Securities at the time outstanding
or the placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in Section 5(a) hereof and
the compliance with or satisfaction of any agreements or conditions contained in
the underwriting agreement or other agreement entered into by the Company; and
(E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Transfer Restricted
Securities of any proposal by the Company to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to Section 9(h) hereof
and of any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as the
case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Transfer Restricted Securities or participate
as a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair
-15-
Practice and the By-Laws of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time) thereof,
whether as a holder of such Transfer Restricted Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of such
Rules and By-Laws, including by (A) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in such Schedule (or
any successor thereto)) to participate in the preparation of the Shelf
Registration Statement relating to such Transfer Restricted Securities, to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Transfer Restricted Securities, (B) indemnifying any
such qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other customary extent as
may be requested by such underwriter), and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the Rules of Fair Practice of the NASD; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the effective
date of such Shelf Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Act (including, at the
option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(D) above, to notify the Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters, if any, thereof,
the Company shall without unreasonable delay, subject to Section 3(d)(iv),
prepare and furnish to each of the Electing Holders, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable number of
copies of a Prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Transfer Restricted Securities, such Prospectus shall conform
in all material respects to the applicable requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. Each
Electing Holder agrees that upon receipt of any notice from the Company pursuant
to Section 3(d)(viii)(D) hereof, such Electing Holder shall forthwith
discontinue the disposition of Transfer Restricted Securities pursuant to the
Shelf Registration Statement applicable to such Transfer Restricted Securities
until such Electing Holder shall have received copies of such amended or
supplemented Prospectus, and if so directed by the Company, such Electing Holder
shall deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Electing Holder's possession of the
Prospectus covering such Transfer Restricted Securities at the time of receipt
of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice and
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing
-16-
Holder and such Electing Holder's intended method of distribution of Transfer
Restricted Securities as may be required in order to comply with the Act. Each
such Electing Holder agrees to notify the Company as promptly as practicable of
any inaccuracy or change in information previously furnished by such Electing
Holder to the Company or of the occurrence of any event in either case as a
result of which any Prospectus relating to such Shelf Registration contains or
would contain an untrue statement of a material fact regarding such Electing
Holder or such Electing Holder's intended method of disposition of such Transfer
Restricted Securities or omits to state any material fact regarding such
Electing Holder or such Electing Holder's intended method of disposition of such
Transfer Restricted Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information
required to correct and update any previously furnished information or required
so that such Prospectus shall not contain, with respect to such Electing Holder
or the disposition of such Transfer Restricted Securities, an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not resell, and will use its best efforts to prevent any of its
Affiliates from reselling, any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under the
Act.
(h) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each holder of Transfer Restricted
Securities shall furnish, upon the written request of the Company, prior to the
completion of the Exchange Offer, a written representation to the Company,
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of the Company, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Securities to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Securities in its ordinary
course of business. Each Holder hereby acknowledges and agrees that any Broker-
Dealer and any such holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange Offer (1) could
not under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available May
13, 1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters, and (2) must comply with the
registration and prospectus delivery requirements of the Act in connection with
a secondary resale transaction and that such a secondary resale transaction must
be covered by an effective registration statement (which may be the Exchange
Offer Registration Statement) containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the resales are
of Exchange Securities obtained by such Holder in exchange for securities
acquired by such holder directly from the Company or an affiliate thereof.
4. Registration Expenses.
-17-
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such NASD registration, filing and review, (b) all fees and
expenses in connection with the qualification of the Securities for offering and
sale under the State securities and blue sky laws referred to in Section
3(d)(xii) hereof and determination of their eligibility for investment under the
laws of such jurisdictions as any managing underwriters or the Electing Holders
may designate, including any fees and disbursements of counsel for the Electing
Holders (subject to the limitations of Clause (i) below) or underwriters in
connection with such qualification and determination, (c) all expenses relating
to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each Prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(d)(xix) hereof, (i) fees,
disbursements and expenses of one counsel for the Electing Holders retained in
connection with a Shelf Registration, as selected by the Electing Holders of at
least a majority in aggregate principal amount of the Transfer Restricted
Securities held by Electing Holders (which counsel shall be reasonably
satisfactory to the Company), (j) any fees charged by securities rating services
for rating the Securities, and (k) fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any holder of
Transfer Restricted Securities or any placement or sales agent therefor or
underwriter thereof, the Company shall reimburse such person for the full amount
of the Registration Expenses so incurred, assumed or paid promptly after receipt
of a request therefor. Notwithstanding the foregoing, the holders of the
Transfer Restricted Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Transfer Restricted Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
5. Representations and Warranties.
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The Company represents and warrants to, and agrees with, each Initial
Purchaser and each of the holders from time to time of Transfer Restricted
Securities that:
(a) Each registration statement covering Transfer Restricted
Securities and each Prospectus (including any preliminary or summary Prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c) hereof
and any further amendments or supplements to any such registration statement or
Prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Transfer Restricted
Securities, at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the applicable requirements of
the Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and at all times subsequent to
the Effective Time when a Prospectus would be required to be delivered under the
Act, other than from (i) such time as a notice has been given to holders of
Transfer Restricted Securities pursuant to Section 3(d)(viii)(D) or Section
3(c)(iii)(D) hereof until (ii) such time as the Company furnishes an amended or
supplemented Prospectus pursuant to Section 3(e) or Section 3(c)(iv) hereof,
each such registration statement, and each Prospectus (including any summary
Prospectus) contained therein or furnished pursuant to Section 3(d) or Section
3(c) hereof, as then amended or supplemented, will conform in all material
respects to the applicable requirements of the Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Transfer Restricted Securities expressly for use therein.
(b) Any documents incorporated by reference in any Prospectus
referred to in Section 5(a) hereof, when they become or became effective or are
or were filed with the Commission, as the case may be, will conform or conformed
in all material respects to the requirements of the Act or the Exchange Act, as
applicable, and none of such documents will at such time contain or contained an
untrue statement of a material fact or will omit or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of Transfer
Restricted Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any subsidiary of the Company is a party or
by which the Company or any subsidiary of the Company is bound or to which any
of the property or assets of the Company or any subsidiary of the Company is
subject, nor will such action result in any violation of
-19-
the provisions of the certificate of incorporation, as amended, or the by-laws
of the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
subsidiary of the Company or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the Company of
the transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Act of the Securities,
qualification of the Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under State securities or blue sky laws in connection with the offering and
distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless each of the holders of Transfer Restricted Securities included in
an Exchange Offer Registration Statement, each of the Electing Holders of
Transfer Restricted Securities included in a Shelf Registration Statement and
each person who participates as a placement or sales agent or as an underwriter
in any offering or sale of such Transfer Restricted Securities against any
losses, claims, damages or liabilities, joint or several, to which such holder,
agent or underwriter may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Exchange Offer Registration Statement or
Shelf Registration Statement, as the case may be, under which such Transfer
Restricted Securities were registered under the Act, or any preliminary, final
or summary Prospectus contained therein or furnished by the Company to any such
holder, Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company shall, and it hereby
agrees to, reimburse such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary Prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use therein;
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Transfer Restricted
Securities in any registration statement filed pursuant to Section 2(b) hereof
and to entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it from
the Electing Holder of such Transfer Restricted Securities and from each
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underwriter named in any such underwriting agreement, severally and not jointly,
to (i) indemnify and hold harmless the Company, and all other holders of
Transfer Restricted Securities, against any losses, claims, damages or
liabilities to which the Company or such other holders of Transfer Restricted
Securities may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in such registration statement, or any preliminary,
final or summary Prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or underwriter
expressly for use therein, and (ii) reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to undertake liability
to any person under this Section 6(b) for any amounts in excess of the dollar
amount of the proceeds to be received by such Electing Holder from the sale of
such Electing Holder's Transfer Restricted Securities pursuant to such
registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
-21-
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Transfer Restricted Securities
(after deducting any fees, discounts and commissions applicable thereto) exceeds
the amount of any damages which such holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Transfer Restricted
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Transfer Restricted Securities registered or underwritten, as the case
may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who controls any
holder, agent or underwriter within the meaning of the Act; and the obligations
of the holders and any agents or underwriters contemplated by this Section 6
shall be in addition to any liability which the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his consent, is named in any registration statement as about to
-22-
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by Electing Holders holding at least a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in such
offering, provided that such designated managing underwriter or underwriters is
or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Transfer Restricted
Securities hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Transfer Restricted Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
Exchange Act or the Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Act) and the rules and regulations adopted by the
Commission thereunder, and shall take such further action as any holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Transfer Restricted
Securities without registration under the Act within the limitations of the
exemption provided by Rule 144 under the Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Transfer Restricted
Securities in connection with that holder's sale pursuant to Rule 144, the
Company shall deliver to such holder a written statement as to whether it has
complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Transfer Restricted Securities or any other
securities which would be inconsistent with the terms contained in this Exchange
and Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform any of
their respective obligations hereunder and that the Initial Purchasers and the
holders from time to time of the Transfer Restricted
-23-
Securities may be irreparably harmed by any such failure, and accordingly agree
that the Initial Purchasers and such holders, in addition to any other remedy to
which they may be entitled at law or in equity, shall be entitled to compel
specific performance of the respective obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows:
To the Company:
Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
To the Initial Purchasers:
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Chase Securities Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
Xxxxxx Xxxxxx Partners LLC
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
To a holder:
to the address of such holder set forth in the security register or
other records of the Company, or to such other address as the Company
or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
-24-
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders from
time to time of the Transfer Restricted Securities and the respective successors
and assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Transfer Restricted Securities shall acquire
Transfer Restricted Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a beneficiary hereof for all
purposes and such Transfer Restricted Securities shall be held subject to all of
the terms of this Exchange and Registration Rights Agreement, and by taking and
holding such Transfer Restricted Securities such transferee shall be entitled to
receive the benefits of, and be conclusively deemed to have agreed to be bound
by all of the applicable terms and provisions of this Exchange and Registration
Rights Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Transfer Restricted
Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Exchange
and Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any holder of Transfer Restricted Securities,
any director, officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Transfer Restricted
Securities pursuant to the Purchase Agreement and the transfer and registration
of Transfer Restricted Securities by such holder and the consummation of an
Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Indenture and the form of Securities) or delivered pursuant hereto which form a
part hereof contain the entire understanding of the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be amended
and the observance of any term of this Exchange and Registration Rights
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
the Company and the holders of at least a majority in aggregate principal amount
of the Transfer Restricted Securities at the time outstanding. Each holder of
any Transfer Restricted
-25-
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such Transfer
Restricted Securities or is delivered to such holder.
(i) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-26-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
referred to above.
EXODUS COMMUNICATIONS, INC.
By:/s/ X. Xxxxxxxx Case
--------------------------------------
Name: X. Xxxxxxxx Case
Title: Executive Vice President, Finance
and Chief Financial Officer
INITIAL PURCHASERS
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
CHASE SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
XXXXXX XXXXXX PARTNERS LLC
XXXXXXX, SACHS & CO., on behalf of each of the Initial
Purchasers
By:/s/ Xxxxxxx, Xxxxx & Co.
--------------------------------------
-27-
EXHIBIT A
EXODUS COMMUNICATIONS, INC.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
-----------------------------
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Exodus Communications,
Inc. (the "Company") $1,000,000,000 principal amount of 11-5/8% Senior Notes due
2010 (the "Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of
the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Exodus
Communications, Inc., 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx Xxxxx, XX 00000,
Attention: General Counsel, (000) 000-0000.
-28-
Exodus Communications, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement
(the "Exchange and Registration Rights Agreement") between Exodus
Communications, Inc. (the "Company") and the Initial Purchasers named therein.
Pursuant to the Exchange and Registration Rights Agreement, the Company has
filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form [___] (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Act"), of the Company's $1,000,000,000 principal
amount of 11-5/8% Senior Notes due 2010 (the "Securities"). A copy of the
Exchange and Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Exchange and Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities (as defined below)
is entitled to have the Transfer Restricted Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Transfer
Restricted Securities included in the Shelf Registration Statement, this Notice
of Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Beneficial owners of Transfer Restricted Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the Prospectus forming a part thereof for resales of Transfer
Restricted Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term "Transfer Restricted Securities" is defined in the Exchange and
Registration Rights Agreement.
-29-
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer
Restricted Securities hereby elects to include in the Shelf Registration
Statement the Transfer Restricted Securities beneficially owned by it and listed
below in Item (c). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Transfer Restricted
Securities by the terms and conditions of this Notice and Questionnaire and the
Exchange and Registration Rights Agreement, including, without limitation,
Section 6 of the Exchange and Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
-30-
QUESTIONNAIRE
(a) Full Legal Name of Selling Securityholder:
___________________________________________________________________________
(i) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Transfer Restricted Securities Listed in Item (c) below:
____________________________________________________________________
(ii) Full Legal Name of DTC Participant (if applicable and if not the
same as (a) above) Through Which Transfer Restricted Securities
Listed in Item (c) below are Held:
____________________________________________________________________
(b) Address for Notices to Selling Securityholder:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Telephone: __________________________________
Fax: __________________________________
Contact Person: __________________________________
(c) Beneficial Ownership of Securities:
Except as set forth below in this Item (c), the undersigned does not
beneficially own any Securities.
(i) Principal amount of Transfer Restricted Securities beneficially owned:
CUSIP No(s). of such Transfer Restricted Securities:
-31-
(ii) Principal amount of Securities other than Transfer Restricted
Securities beneficially owned:______________________________________
CUSIP No(s). of such other Securities:
(iii) Principal amount of Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:
CUSIP No(s). of such Transfer Restricted Securities to be included
in the Shelf Registration Statement:
(d) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (d), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (c).
State any exceptions here:
(e) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(f) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Transfer Restricted Securities listed above in Item (c) only
as follows (if at all): Such Transfer Restricted Securities may be sold from
time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, Broker-Dealers or agents. Such Transfer
Restricted Securities may be sold in one or more transactions at fixed prices,
at prevailing market prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation service on which the Transfer
Restricted Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such exchanges
or services or in the over-the-counter market, or (iv) through the
-32-
writing of options. In connection with sales of the Transfer Restricted
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with Broker-Dealers, which may in turn engage in short sales of the
Transfer Restricted Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Transfer Restricted Securities
short and deliver Transfer Restricted Securities to close out such short
positions, or loan or pledge Transfer Restricted Securities to Broker-Dealers
that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Transfer Restricted Securities listed in Item (c) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (a) through (f) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(d) and (f) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to notify the Company promptly of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery, first-
class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
-00-
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
(000) 000-0000
(ii) With a copy to:
Fenwick & West, LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
(000) 000-0000
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Transfer Restricted
Securities beneficially owned by such Selling Securityholder and listed in Item
(c) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
-34-
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: ________________
____________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Transfer Restricted Securities)
By: ________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
(000) 000-0000
-35-
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Chase Manhattan Bank and Trust Company,
National Association
Exodus Communications, Inc.
c/o Chase Manhattan Bank and Trust Company,
National Association
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Trust Officer
Re: Exodus Communications, Inc. (the "Company")
$1,000,000,000 11-5/8% Senior Notes due 2010
Ladies and Gentlemen:
Please be advised that _____________________ has transferred $___________
aggregate principal amount of the above referenced Notes pursuant to an
effective Registration Statement on Form [___] (File No. 333-____) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated ___________, 2000 or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
___________________________
(Name)
By:________________________
(Authorized Signature)
-36-
