EXHIBIT 10.55
EXODUS COMMUNICATIONS, INC.
5% CONVERTIBLE SUBORDINATED NOTES
DUE MARCH 15, 2006
REGISTRATION RIGHTS AGREEMENT
Dated as of March 1, 1999
Xxxxxxx, Xxxxx & Co.
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
BT Alex. Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxxx & Xxxxx LLC
As representatives of the several Purchasers
Named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Exodus Communications, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Purchasers (as defined
herein) upon the terms set forth in a Purchase Agreement (as defined
herein) its 5% Convertible Subordinated Notes due March 15, 2006 (the
"Securities"). As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations
of the Purchasers thereunder, the Company agrees with the Purchasers, for
the benefit of the Holders (as defined herein) from time to time of the
Registrable Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the
Purchase Agreement. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of
1933, as amended.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Common Stock" means the Company's Common Stock, par value $0.001
per share.
"Commission" means the United States Securities and Exchange
Commission.
"DTC" means The Depository Trust Company.
"Effective Failure" has the meaning assigned thereto in Section 7
hereof.
"Effective Time" means the date on which the Commission declares
the Shelf Registration Statement effective or on which the Shelf
Registration Statement otherwise becomes effective.
"Effectiveness Period" has the meaning set forth in Section 2(b)(i)
hereof.
"Electing Holder" has the meaning assigned thereto in
Section 3(a)(3) hereof.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Expedited Filing" has the meaning assigned thereto in
Section 3(a)(1) hereof.
"Expedited Filing Questionnaire Deadline" has the meaning assigned
thereto in Section 3(a)(1) hereof.
"Holder" means any Person that has a beneficial interest in any
Restricted Global Security or any beneficial interest in a global
security representing shares of Common Stock issuable upon conversion of
a Security.
"Indenture" means the Indenture dated as of March 1, 1999 between
the Company and Chase Manhattan Bank and Trust Company, National
Association, as Trustee, as amended and supplemented from time to time.
"Liquidated Damages" has the meaning assigned thereto in Section 7
hereof.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering, if any, as set forth in Section 6 hereof.
"NASD Rules" means the Rules of the National Association of
Securities Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, any preliminary
prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Act), included in the Shelf Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of
the offering of any portion of the Registrable Securities covered by the
Shelf Registration Statement and by all other amendments and supplements
to such prospectus, including all material incorporated by reference in
such prospectus and all documents filed after the date of such prospectus
by the Company under the Exchange Act and incorporated by reference
therein.
"Purchase Agreement" means the purchase agreement dated February
25, 1999 between the Company and the Purchasers.
"Purchasers" means you, as the Purchasers named in Schedule I to
the Purchase Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the
Common Stock issuable upon conversion or repurchase of such Securities;
provided, however, that a security ceases to be a Registrable Security
when it is no longer a Restricted Security.
"Registration Default" has the meaning assigned thereto in
Section 7 hereof.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion or repurchase thereof except any such Security
or such share of Common Stock which (i) has been effectively registered
under the Securities Act and sold in a manner contemplated by the Shelf
Registration Statement, (ii) has been transferred in compliance with Rule
144 under the Securities Act (or any successor provision thereto) or is
transferable pursuant to paragraph (k) of such Rule 144 (or any successor
provision thereto), or (iii) has otherwise been transferred and a new
Security or share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5 of the Indenture.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Statement" means a shelf registration statement
of the Company pursuant to the provisions of Section 2 hereof filed with
the Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration.
(a) The Company shall, within 90 calendar days following the
First Time of Delivery (as defined in the Purchase Agreement), file with
the Commission a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities by the Holders and, thereafter, shall
use all reasonable efforts to cause such Shelf Registration Statement to
be declared effective under the Securities Act within 180 calendar days
after the First Time of Delivery (as defined in the Purchase Agreement);
provided, however, that the Company may, upon written notice to all the
Holders, postpone having the Shelf Registration Statement declared
effective for a reasonable period not to exceed 90 days if the Company
possesses material non-public information, the disclosure of which would
have a material adverse effect on the Company and its subsidiaries taken
as a whole; provided, further, however, that no Holder shall be entitled
to have the Registrable Securities held by it covered by such Shelf
Registration unless such Holder is an Electing Holder.
(b) The Company shall use all reasonable efforts:
(i) To keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Electing Holders for a period of two years from
the date it is declared effective, or such shorter period that will
terminate when there are no Registrable Securities outstanding (in either
case, such period being referred to herein as the "Effectiveness
Period");
(ii) After the Effective Time of the Shelf
Registration Statement, promptly upon the request of any Holder of
Registrable 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 offers and resales of Registrable Securities,
including, without limitation, any action reasonably necessary to
identify such Holder as a selling securityholder in the Shelf
Registration Statement; provided, however, that nothing in this
subparagraph shall relieve such Holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in
accordance with Sections 3(a)(1) or 3(a)(2) hereof; and
(iii) If at any time, the Securities, pursuant to
Article XII of the Indenture, are convertible into securities other than
shares of Common Stock, the Company shall, or shall cause any successor
under the Indenture to, cause such securities to be included in the Shelf
Registration Statement no later than the date on which the Securities may
then be convertible into such securities.
The Company shall be deemed not to have used all reasonable efforts
to keep the Shelf Registration Statement effective during the
Effectiveness Period if the Company voluntarily takes any action that
would result in Electing Holders not being able to offer and sell any of
their Registrable Securities during such period, unless (i) such action
is required by applicable law or regulation, (ii) the Company determines
based on the advice of counsel that it is advisable to disclose in the
Shelf Registration Statement a financing, acquisition or other corporate
transaction or other material event or circumstance affecting the Company
or its securities, and the Board of Directors of the Company (or an
executive officer of the Company duly authorized for such purpose) shall
have determined in good faith that such disclosure at such time is not in
the best interests of the Company and its stockholders, and, in the case
of clause (i) above, the Company thereafter promptly complies with the
requirements of paragraph 3(h) below.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) (1) If the Company expects to file and obtain the
effectiveness of a Shelf Registration Statement within 30 days of the
date hereof (an "Expedited Filing"), it shall (x) mail, as promptly as
reasonably practicable after the date hereof to the Holders of
Registrable Securities, a Notice and Questionnaire with a response
deadline of 30 days from the date of such Notice (the "Expedited Filing
Questionnaire Deadline"), and (y) as promptly as reasonably practicable
after the response deadline but in any event no later than 10 days
thereafter, prepare a Prospectus supplement (and if required file an
amendment or a supplement to the Shelf Registration Statement) or take
such other measures, if any, as are necessary to include in the Shelf
Registration Statement the Registrable Securities of Electing Holders.
If the Company does not intend to make an Expedited Filing, it shall mail
the Notice and Questionnaire to the Holders of Registrable Securities not
less than 30 calendar days prior to the time the Company intends in good
faith to have the Shelf Registration Statement declared effective.
Subject to Section 3(a)(2) hereof, no Holder of Registrable Securities
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time (or in the first
Prospectus supplement filed thereafter in the case of an Expedited
Filing), and no Holder of Registrable Securities shall be entitled to use
the Prospectus forming a part thereof for offers and resales of
Registrable 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, that Holders
of Registrable 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.
(2) After the Effective Time of the Shelf
Registration Statement (or the Expedited Filing Questionnaire Deadline in
the case of an Expedited Filing), the Company shall, upon the request of
any Holder of Registrable Securities that is not then an Electing Holder,
as promptly as reasonably practicable, send a Notice and Questionnaire to
such Holder. The Company shall not be required to take any action to
name such Holder as a selling securityholder in the Shelf Registration
Statement until such Holder has returned a completed and signed Notice
and Questionnaire to the Company. Following its receipt of such Notice
and Questionnaire, the Company will reasonably promptly include the
Registrable Securities covered thereby in the Shelf Registration
Statement (if not previously included).
(3) The term "Electing Holder" shall mean any Holder
of Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(1) or
3(a)(2) hereof.
(b) The Company shall, as promptly as reasonably practicable,
take such action as may be necessary so that (i) each of the Shelf
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto (and each
report or other document incorporated therein by reference in each case)
complies in all material respects with the Securities Act and the
Exchange Act and the respective rules and regulations thereunder, (ii)
each of the Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, 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 (iii) each
of the Prospectus forming part of the Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) (i) The Company shall, as promptly as reasonably
practicable, advise each Electing Holder and shall confirm such advice in
writing if so requested by any such Electing Holder:
(1) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has become
effective;
(2) of any request by the Commission for
amendments or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information;
(3) of the issuance by the Commission of any stop
order suspending effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose; and
(4) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
securities included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose.
(ii) The Company shall, as promptly as reasonably
practicable, advise DTC and the trustee under the Indenture of the
happening of any event or the existence of any state of facts that
requires the making of any changes in the Shelf Registration Statement or
the Prospectus included therein so that, as of such date, the Shelf
Registration Statement and the Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Company shall use all reasonable efforts to prevent
the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
(e) The Company shall furnish to each Electing Holder, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Electing Holder so requests in writing, all
reports, other documents and exhibits that are filed with or incorporated
by reference in the Shelf Registration Statement. The Company shall use
all reasonable efforts to take into account and, if appropriate, reflect
in an amendment to the Shelf Registration Statement such comments on the
Shelf Registration Statement as initially filed as the Electing Holders
and their counsel may reasonably propose.
(f) The Company shall, during the Effectiveness Period,
deliver to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
Electing Holder may reasonably request; and the Company consents (except
during the continuance of any event described in Section 3(c)(ii)) to the
use of the Prospectus or any amendment or supplement thereto by each of
the Electing Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto during the Effectiveness Period. The Company shall
use all reasonable efforts to take into account and, if appropriate,
reflect in a Prospectus supplement or amendment such comments as the
Electing Holders and their counsel may reasonably propose.
(g) Prior to any offering of Registrable Securities pursuant
to the Shelf Registration Statement, the Company shall (i) register or
qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Electing Holders reasonably
request, (ii) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers and sales
in such jurisdictions for so long as may be necessary to enable any
Electing Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement and
(iii) take any and all other actions necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities;
provided, however, that in no event shall the Company be obligated to (a)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but
for this Section 3(g), or (b) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof then so
subject.
(h) Upon the occurrence of any event contemplated by paragraph
3(c)(ii) above, the Company shall as promptly as reasonably practicable
prepare a post-effective amendment or supplement to the Shelf
Registration Statement or the Prospectus, or any document incorporated
therein be reference, or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, if the Company determines
based upon the advice of counsel that it is advisable to disclose in the
Shelf Registration Statement a financing, acquisition or other corporate
transaction or other material event affecting the Company or its
securities, and the Board of Directors of the Company (or an executive
officer of the Company duly authorized for such purpose) shall have
determined in good faith that such disclosure would not be in the best
interests of the Company and its stockholders, the Company shall not be
required to prepare and file such amendment, supplement or document for
such period as the Board of Directors of the Company shall have
determined in good faith is in the best interests of the Company and its
stockholders. If the Electing Holders are notified of the occurrence of
any event contemplated by paragraph 3(c)(ii) above, the Electing Holders
shall suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made.
(i) Not later than the Effective Time of the Shelf
Registration Statement, the Company shall provide a CUSIP number for the
Registrable Securities that are debt securities.
(j) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable, but
in any event not later than eighteen months after (i) the effective date
(as defined in Rule 158(c) under the Securities Act) of the Shelf
Registration Statement and (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement and (iii) the date of each
filing by the Company with the Commission of an Annual Report on Form 10-
K or 10-KSB that is incorporated by reference in the Shelf Registration
Statement, an earnings statement of the Company and its subsidiaries
satisfying the provisions of Section 11(a) of the Securities Act.
(k) The Company shall cause the Indenture and the Securities
to be qualified under the Trust Indenture Act in a timely manner; and in
connection with such qualification, the Company shall cooperate with the
Trustee under the Indenture and the Holders (as defined in the Indenture)
to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute and use all reasonable
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner.
(l) In the event of an underwritten offering conducted
pursuant to Section 6 hereof, the Company shall, if requested, promptly
include or incorporate in a Prospectus supplement or post-effective
amendment to the Shelf Registration Statement such information as the
Managing Underwriters reasonably agree should be included therein and to
which the Company does not reasonably object and shall make all required
filings of such Prospectus supplement or post-effective amendment as soon
as reasonably practicable after it is notified of the matters to be
included or incorporated in such Prospectus supplement or post-effective
amendment.
(m) Upon request, the Company shall enter into such customary
agreements (including underwriting agreements in customary form) and take
all other appropriate actions in order to expedite or facilitate the
registration and disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification and contribution provisions and
procedures substantially identical to those set forth in Section 5 (or
such other provisions and procedures acceptable to the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 5 hereof.
(n) The Company shall, upon request:
(i) make reasonably available for inspection by one
representative of the Electing Holders designated in writing by the
Holders of a majority of the Registrable Securities to be registered
thereunder, any underwriter participating in any underwritten offering
pursuant to Section 6 hereof, and any attorney, accountant or other agent
retained by such representative or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries, as is customary for similar due
diligence examinations;
(ii) cause the Company's officers, directors and
employees to make reasonably available for inspection all relevant
information reasonably requested by such representative or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that any information that
is designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept confidential by
such representative, any Holders or any such underwriter, attorney,
accountant or agent, unless (x) such disclosure is made in connection
with a court proceeding or required by law, or (y) such information
becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided,
further, that as promptly as reasonably practicable before disclosure is
made pursuant to clause (x) above, the Company is given prior written
notice.
(iii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, make such representations and
warranties to the Electing Holders and the underwriters, if any, in form,
substance and scope as are customarily made by the Company to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each Electing Holder and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such Electing Holders and underwriters (it
being agreed that the matters to be covered by such opinion or written
statement by such counsel delivered in connection with such opinions
shall include in customary form, without limitation, as of the date of
the opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case
may be, the absence from such Shelf Registration Statement and the
Prospectus included therein, as then amended or supplemented, including
the documents incorporated by reference therein, of an untrue statement
of a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading);
(v) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain "cold comfort" letters and
updates thereof from the independent public accountants of the Company
(and, if necessary, any other independent public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each Electing
Holder and the underwriters, if any, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(vi) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, deliver such documents and
certificates as may be reasonably requested by any such Electing Holders
and the Managing Underwriters, if any, including those to evidence
compliance with Section 3(h) hereof and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company.
(o) The Company will use all reasonable efforts to cause the
shares of Common Stock issuable upon conversion of the Securities to be
quoted on the Nasdaq National Market or other trading system or stock
exchange on which the Common Stock primarily trades on or prior to the
Effective Time of any Shelf Registration Statement hereunder.
(p) In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of
the NASD Rules (or any successor provision thereto)) of the Company or
has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD
Rules (or any successor provision thereto)) and such broker-dealer shall
underwrite, participate as a member of an underwriting syndicate or
selling group or assist in the distribution of any Registrable Securities
covered by the Shelf Registration Statement, whether as a Holder of such
Registrable Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, assist such
broker or dealer in respect thereof, or otherwise, the Company shall
assist such broker-dealer in complying with the requirements of the NASD
Rules, including, without limitation, by (A) engaging a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the NASD
Rules (or any successor provision thereto)) to participate in the
preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in
respect thereto and to recommend the public offering price of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 5 hereof, 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 NASD Rules.
(q) The Company shall use all reasonable efforts to take all
other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations
under Sections 2, 3 and 6 hereof and shall bear or reimburse the Electing
Holders for the reasonable fees and disbursements of one firm of counsel
designated by the Company and reasonably acceptable to the Holders of a
majority of the Registrable Securities covered by the Shelf Registration
Statement to act as counsel therefor in connection therewith, subject to
the provisions of Section 6 with respect to the payment of fees and
expenses in connection with an underwritten offering.
5. Indemnification and Contribution.
(a) Indemnification by the Company. In connection with any
Shelf Registration Statement, the Company shall indemnify and hold
harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, who facilitates the disposition of
Registrable Securities, and each of their respective officers and
directors and each person, if any, who controls such Electing Holder,
underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (each such person being sometimes referred to herein as an
"Indemnified Person") against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based on any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement (or any
amendment thereto) under which such Registrable Securities are registered
under the Securities Act, or any Prospectus contained therein or
furnished by the Company to any Indemnified Person, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading (in
the case of the Prospectus, in light of the circumstances under which
they were made), and the Company hereby agrees to reimburse such
Indemnified Person 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 Indemnified 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 Shelf Registration Statement or
Prospectus, or any amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by such
Indemnified Person expressly for use therein.
(b) Indemnification by the Holders and Any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the
inclusion of any such holder's Registrable Securities in such Shelf
Registration Statement, and each underwriter, selling agent or other
securities professional, if any, who facilitates the disposition of
Registrable Securities shall agree, as a consequence of facilitating such
disposition of Registrable Securities, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors, officers who sign
any Shelf Registration Statement and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company or such other persons may become
subject, under the Securities 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 Shelf Registration Statement or
Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon an 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 the case of the Prospectus, in
light of the circumstances under which they were made), 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, underwriter, selling agent or other securities
professional 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.
(c) Notices and Claims. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of 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 under this
Section 5, notify such indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party shall not
relieve it from any liability which it may have to the indemnified party
otherwise than under this Section 5. 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 of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such
indemnified party under this Section 5 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 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.
(d) Contribution. If the indemnification provided for in this
Section 5 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) of this Section 5 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 and 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 the 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 contribution pursuant to this
Section 5(d) were determined by pro rata allocation (even if the Electing
Holders or any underwriters, selling agents or other securities
professionals or all of them were treated as one entity for such purpose)
or by any other method of allocation that does not take into account the
equitable considerations referred to in this Section 5(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. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Electing Holders and any underwriters, selling agents or other securities
professionals in this Section 5(d) to contribute shall be several in
proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and
not joint.
(e) Notwithstanding any other provision of this Section 5, in
no event shall any Electing Holder be required to undertake liability to
any person under this Section 5 for any amounts in excess of the dollar
amount of the proceeds received by such Electing Holder from the sale of
such Electing Holder's Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) pursuant to any Shelf
Registration Statement under which such Registrable Securities are
registered under the Securities Act.
(f) The obligations of the Company under this Section 5 shall
be in addition to any liability which the Company may otherwise have to
any Indemnified Person and the obligations of any Electing Holder,
underwriter, selling agent or other securities professional under this
Section 5 shall be in addition to any liability which any such Electing
Holder, underwriter, selling agent or other securities professional shall
otherwise have to the Company. The remedies provided in this Section 5
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to an indemnified party at law or in equity.
6. Underwritten Offering. Any Electing Holder who desires to do so
may sell Registrable Securities (in whole or in part) in an underwritten
offering, provided that (i) the Electing Holders of at least 25% in
aggregate principal amount of the Registrable Securities then covered by
the Shelf Registration Statement shall request such an offering and (ii)
at least such aggregate principal amount of such Registrable Securities
shall be included in such offering, and provided, further, that the
Company shall not be obligated to cooperate with more than one
underwritten offering. Upon receipt of such a request, the Company shall
provide all Holders of Registrable Securities written notice of the
request, which notice shall inform such Holders that they have the
opportunity to participate in the offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that
will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by the Holders of a
majority of the Registrable Securities to be included in such offering;
provided, however, that such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company.
No Holder may participate in any underwritten offering contemplated
hereby unless (a) such Holder agrees to sell such Holder's Registrable
Securities to be included in the underwritten offering in accordance with
any approved underwriting arrangements, (b) such Holder completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required
under the terms of such approved underwriting arrangements, and (c) if
such Holder is not then an Electing Holder, such Holder returns a
completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(2) hereof within a reasonable amount of time
before such underwritten offering. The Holders participating in any
underwritten offering shall be responsible for any underwriting discounts
and commissions and fees and expenses of their own counsel. The Company
shall pay all expenses customarily borne by issuers in an underwritten
offering, including but not limited to filing fees, the fees and
disbursements of its counsel and accountants and any printing expenses
incurred in connection with such underwritten offering. Notwithstanding
the foregoing or the provisions of Sections 3(l) and 3(m) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
Holders of a majority of the Registrable Securities to be included in an
underwritten offering to prepare and file an amendment or supplement to
the Shelf Registration Statement and Prospectus in connection with an
underwritten offering, the Company may delay the filing of any such
amendment or supplement for up to 60 days if the Board of Directors of
the Company (or an executive officer of the Company duly authorized for
such purpose) shall have determined in good faith that the Company has a
valid business reason for such delay.
7. Liquidated Damages. Pursuant to Section 2(a) hereof, the
Company may, upon written notice to all the Holders, postpone having the
Shelf Registration Statement declared effective for a reasonable period
not to exceed 90 days if the Company possesses material non-public
information, the disclosure of which would have a material adverse effect
on the Company and its subsidiaries taken as a whole. Notwithstanding
any such postponement, if (i) on or prior to the 90th day following the
date of the First Time of Delivery (as defined in the Purchase
Agreement), a Shelf Registration Statement has not been filed with the
Commission or (ii) on or prior to the 180th day following the date of the
First Time of Delivery (as defined in the Purchase Agreement), such Shelf
Registration Statement is not declared effective by the Commission (each,
a "Registration Default"), the Company shall be required to pay
liquidated damages ("Liquidated Damages"), from and including the day
following such Registration Default until such Shelf Registration
Statement is either so filed or so filed and subsequently declared
effective, as applicable. Such Liquidated Damages shall be paid semi-
annually in arrears, with the first semi-annual payment due on the first
Interest Payment Date (as defined in the Indenture), as applicable,
following the date of such Registration Default, and will accrue at a
rate per annum equal to an additional one-quarter of one percent (0.25%)
of the principal amount of Restricted Securities, to and including the
90th day following such Registration Default and one-half of one percent
(0.5%) thereof from and after the 91st day following such Registration
Default. In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise
prevented or restricted by the Company from effecting sales pursuant
thereto) (an "Effective Failure") for more than 45 days, whether or not
consecutive, in any 90 day period, and 90 days, whether or not
consecutive, during any twelve-month period, then the Company shall pay
Liquidated Damages in the amount of one-half of one percent (0.5%) per
annum from the 46th day of the applicable 90 day period or the 90th day
of the applicable twelve-month period, as the case may be, that such
Shelf Registration Statement ceases to be effective (or the Holders of
Registrable Securities are otherwise prevented or restricted by the
Company from effecting sales pursuant thereto) until such time as the
Effective Failure is cured. For the purpose of determining an Effective
Failure, days on which the Company has been obligated to pay Liquidated
Damages in accordance with the foregoing in respect of a prior Effective
Failure within the applicable 90 day or twelve-month period, as the case
may be, shall not be included. The Liquidated Damages as set forth in
this Section 7 shall be the exclusive monetary remedy available to the
Holders of Registrable Securities for such Registration Default or
Effective Failure. In no event shall the Company be required to pay
Liquidated Damages in excess of the applicable maximumamount of one-half
of one percent (0.5%) set forth above, regardless of whether one or
multiple Registration Defaults exist.
8. Miscellaneous.
(a) Other Registration Rights. The Company may grant
registration rights that would permit any Person that is a third party
the right to piggy-back on any Shelf Registration Statement, provided
that if the Managing Underwriter, if any, of any underwritten offering
conducted pursuant to Section 6 hereof notifies the Company and the
Electing Holders that the total amount of securities which the Electing
Holders and the holders of such piggy-back rights intend to include in
any Shelf Registration Statement is so large as to materially threaten
the success of such offering (including the price at which such
securities can be sold), then the amount, number or kind of securities to
be offered for the account of holders of such piggy-back rights will be
reduced to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount, number or kind recommended
by the Managing Underwriter prior to any reduction in the amount of
Registrable Securities to be included in such Shelf Registration
Statement.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this Section 8(b), may be amended, and
waivers or consents to departures from the provisions hereof may be
given, only by a written instrument duly executed by the Company and the
Holders of a majority in aggregate principal amount of Registrable
Securities then outstanding. Each Holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or
thereafter shall be bound by any amendment, waiver or consent effected
pursuant to this Section 8(b), whether or not any notice, writing or
marking indicating such amendment, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-
class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a Holder, at the most current address
given by such Holder to the Company in accordance with the provisions of
this Section 8(c);
(2) if to the Purchasers, initially at the address
set forth in the Purchase Agreement; and
(3) if to the Company, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties and the Holders, including, without the need for an express
assignment or any consent by the Company thereto, subsequent Holders of
Registrable Securities. The Company hereby agrees to extend the benefits
of this Agreement to any Holder of Registrable Securities and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) Counterparts. This agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this
Agreement or made pursuant hereto shall remain in full force and effect,
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Electing Holder, any director,
officer or partner of such Electing Holder, any agent or underwriter, any
director, officer or partner of such agent or underwriter, or any
controlling person of any of the foregoing, and shall survive the
transfer and registration of the Registrable Securities of such Holder.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
Exodus Communications, Inc.
By:____________________________
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
Xxxxxxx, Xxxxx & Co.
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
BT Alex. Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxxx & Xxxxx LLC
By:____________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Purchasers
[Signature Page to Registration Rights Agreement]
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 Exodus Communications,
Inc. (the "Company") 5% Convertible Subordinated Notes due March 15, 2006
(the "Securities") are held.
The Company is in the process of registering the Securities under
the Securities Act of 1933, as amended, for resale by the beneficial
owners thereof. In order to have their Securities included in the
registration statement, beneficial owners, INCLUDING BENEFICIAL OWNERS
RESIDENT OUTSIDE THE UNITED STATES, must complete and return the enclosed
Notice of Registration Statement and Selling Securityholder
Questionnaire.
IT IS IMPORTANT THE 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 [DEADLINE FOR RESPONSE].
Please forward a copy of the enclosed materials 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 regarding this
matter, please contact [Name, address and telephone number of contact at
the Company].
EXODUS COMMUNICATIONS, INC.
NOTICE OF REGISTRATION STATEMENT AND SELLING SECURITY HOLDER
QUESTIONNAIRE
(DATE)
Exodus Communications, Inc. (the "Company") has filed or intends
shortly to file with the United States Securities and Exchange Commission
(the "Commission") a registration statement on form S-3 (the "Shelf
Registration Statement") for the registration and resale under the United
States Securities Act of 1933, as amended (the "Securities Act"), of the
Company's 5% Convertible Subordinated Notes due March 15, 2006 (CUSIP No.
0________) (the "Notes"), and Common Stock, par value $0.001 per share,
of the Company issuable upon conversion or repurchase thereof, in
accordance with the terms of the Registration Rights Agreement dated as
of March 1, 1999 (the "Registration Rights Agreement") between the
Company and the purchasers named therein (the "Purchasers"). A copy of
the Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
In order to have Registrable Securities included in the Shelf
Registration Statement (or a supplement or amendment thereto), this
Notice of Registration Statement and Selling Securityholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to
the Company at the address set forth herein for receipt ON OR BEFORE
[insert date that is 30 days from the Notice Date] (the "Questionnaire
Deadline"). Unless the Company otherwise consents, beneficial owners of
Registrable 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 (or a supplement or
amendment thereto) and related Prospectus and (ii) may not sell their
Registrable Securities pursuant thereto. Beneficial owners of
Registrable Securities not having returned a Notice and Questionnaire by
the Questionnaire Deadline may, however, receive another Notice and
Questionnaire from the Company upon request. Following its receipt of a
completed Notice and Questionnaire in return, the Company will reasonably
promptly include the Registrable Securities covered thereby in the Shelf
Registration Statement.
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 Registrable
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 "Registrable Securities" is defined in the Registration
Rights Agreement to mean all or any portion of the Notes issued under the
Indenture and the Common Stock issuable upon conversion or repurchase
thereof; provided, however, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration
Rights Agreement to mean any Note or share of Common Stock issuable upon
conversion or repurchase thereof except any such Note or share of Common
Stock which (i) has been effectively registered under the Securities Act
and sold in a manner contemplated by the Shelf Registration Statement,
(ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or is transferable
pursuant to paragraph (k) of such Rule 144 (or any successor provision
thereto), or (iii) has otherwise been transferred and a new Security or
share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in
accordance with Section 3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed
below in Item (3) (unless otherwise specified under Item (3). The
undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Registrable Securities by the
terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement, including, without limitation, Section 5
of the Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the undersigned Selling Securityholder will be
required to deliver to the Company and the Trustee under the Indenture
the Notice of Transfer completed and signed set forth in Appendix I to
the Notice and Questionnaire and hereby undertakes to do so.
The undersigned Selling Securityholder hereby provides the
following information to the Company and represents and warrants that
such information is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in (3) Below:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in (3) Below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact:
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below, the undersigned Selling Securityholder
does not beneficially own any Notes or Common Stock previously
issued upon conversion or repurchase of any Note.
Principal amount of Notes beneficially owned:
Number of shares of Common Stock beneficially owned and issued to
date upon conversion or repurchase of Notes (if any):
Principal amount of Notes which the undersigned wishes to be
included in the Shelf Registration Statement:
Number of shares of Common Stock (if any) issued upon conversion or
repurchase of Registrable Securities which are to be included in
the Shelf Registration Statement:
(4) Other shares of Common Stock or other Notes of the Company Owned by
the Selling Securityholder:
Except as set forth below, and under Item (3) above, the
undersigned Selling Securityholder is not the beneficial or
registered owner of any shares of Common Stock or any other
securities of the Company.
State any exceptions here:
(5) 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:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable Securities
may be sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-
dealer or agents. Such Registrable 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 exchanges or U.S. inter-dealer quotation
system of a registered national securities association on which the
Registrable 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 writing of options. In
connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out
such short position, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form
of an underwritten offering of the Registrable Securities without
the prior agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will
comply, with the prospectus delivery and other provisions of the
Securities Act and Exchange Act and the respective rules
thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) 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
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to
Items (1) through (6) 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
the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Self Registration
Statement, the Selling Securityholder agrees to promptly notify the
Company of any inaccuracies or changes in the information provided
herein which may occur subsequent to the date hereof at any time
while the Self Registration Statement remains in effect. All
notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing by hand delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
To the Company:
Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attention: General Counsel and Secretary
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, 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 Registrable Securities
beneficially owned by such Selling Securityholder and listed in
Item (3) above. This Agreement shall be governed in all respects
by the laws of the State of New York.
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 Registrable
Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
FOR RECEIPT ON OR BEFORE (DEADLINE FOR RESPONSE) TO THE COMPANY AT:
Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attention: General Counsel and Secretar
APPENDIX I
NOTICE TO TRANSFER PURSUANT TO REGISTRATION STATEMENT
Chase Manhattan Bank and Trust Company,
National Association
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attention: General Counsel and Secretary
Re Exodus Communications, Inc. 5% Convertible Subordinated Notes
due March 15, 2006 (the "Notes")
Dear Sirs:
Please be advised that _________________________________ has
transferred $_____ aggregate principal amount of the above-referenced
notes or ______ shares of the Company's Common Stock, issued on
conversion, repurchase or redemption of Notes, pursuant to the
Registration Statement Form S-3 (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 with
respect to the transfer described above and that the above-named
beneficial owner of the Notes of Common Stock is named as a selling
security holder in the Prospectus dated ____________ or in amendments or
supplements thereto, and that the aggregate principal amount of the Notes
of number of Common Stock transferred are [a portion of] the Notes or
Common Stock listed in such Prospectus as amended or supplemented
opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
(Authorized Signature)
