EXHIBIT 4.05
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY THAT IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THIS SECURITY AND ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (I) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (II) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF CASES (I) THROUGH
(IV) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES AND
OTHER JURISDICTION OF THE UNITED STATES.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION
AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME
TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF
THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE
LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY.
THE HOLDER OF THIS SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE
ACCEPTANCE OF THIS SECURITY AND ANY SUCH SHARES TO HAVE AGREED TO ANY
SUCH AMENDMENT OR SUPPLEMENT.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY
OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE
TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR
ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN
THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
EXODUS COMMUNICATIONS, INC.
5% CONVERTIBLE SUBORDINATED NOTE DUE MARCH 15, 2006
No. R-2 $50,000,000
CUSIP NO. 302088 AC 3
EXODUS COMMUNICATIONS, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture referred to
on the reverse hereof), for value received, hereby promises to pay to
Cede & Co., or registered assigns, the principal sum of Fifty Million
United States Dollars (U.S.$50,000,000) (which principal amount may from
time to time be increased or decreased to such other principal amounts
(which, taken together with the principal amounts of all other
Outstanding Securities, shall not exceed $250,000,000 in the aggregate
at any time) by adjustments made on the records of the Trustee
hereinafter referred to in accordance with the Indenture) on March 15,
2006 and to pay interest thereon, from March 3, 1999, or from the most
recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, semi-annually in arrears on March 15 and
September 15 in each year (each, an "Interest Payment Date"),
commencing September 15, 1999, at the rate of 5% per annum, until the
principal hereof is due, and at the rate of 7% per annum on any overdue
principal and premium, if any, and, to the extent permitted by law, on
any overdue interest. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the March 1 or
September 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Company, notice whereof shall be
given to Holders of Securities not less than 10 days prior to the
Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any automated quotation system
or securities exchange on which the Securities may be quoted or listed,
and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payments of principal shall be made
upon the surrender of this Security at the option of the Holder at the
Corporate Trust Office of the Trustee, or at such other office or
agency of the Company as may be designated by it for such purpose in the
Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts, or at such other
offices or agencies as the Company may designate, by United States
Dollar check drawn on, or transfer to, a United States Dollar account
(such a transfer to be made only to a Holder of an aggregate principal
amount of Securities in excess of U.S.$2,000,000, and only if such
Holder shall have furnished wire instructions in writing to the Trustee
no later than 15 days prior to the relevant payment date). Payment of
interest on this Security may be made by United States Dollar check
mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register, or, upon written application by
the Holder to the Security Registrar setting forth wire instructions not
later than the relevant Record Date, by transfer to a United States
Dollar account (such a transfer to be made only to a Holder of an
aggregate principal amount of Securities in excess of U.S. $2,000,000
and only if such Holder shall have furnished wire instructions in
writing to the Trustee no later than 15 days prior to the relevant
payment date).
Except as specifically provided herein and in the Indenture, the Company
shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof or an Authenticating Agent by
the manual signature of one of their respective authorized signatories,
this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed.
EXODUS COMMUNICATIONS, INC.
By:
___________________________________
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer and
President
Attest:
By:
___________________________________
Name: Xxxx X. Xxxxxx
Title: Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: March 3, 1999
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: _______________________________________
Authorized Signatory
[REVERSE SIDE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Company designated as its "5% Convertible Subordinated Notes due March
15, 2006" (herein called the "Securities"), limited in aggregate
principal amount to U.S. $250,000,000, issued and to be issued under an
Indenture, dated as of March 1, 1999 (herein called the "Indenture"),
between the Company and Chase Manhattan Bank and Trust Company, National
Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal
amount of Securities of any authorized denominations as requested by the
Holder surrendering the same upon surrender of the Security or
Securities to be exchanged, at the Corporate Trust Office of the
Trustee. The Trustee upon such surrender by the Holder will issue the
new Securities in the requested denominations.
No sinking fund is provided for the Securities. The Securities will not
be subject to redemption prior to March 20, 2001 and will be redeemable
on and after that date at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days notice to the Holders
prior to the Redemption Date at the Redemption Prices (expressed as
percentages of the principal amount) set forth below; provided, however,
that the Securities will not be redeemable at the option of the Company
on or after March 20, 2001 and before March 20, 2003 unless the last
reported bid price for the Common Stock equals or exceeds 140% of the
conversion price for at least 20 trading days within a period of 30
consecutive trading days ending within five trading days of the call for
redemption.
The following table sets forth the Redemption Prices (expressed as
percentages of the principal amount) if such Security is redeemed during
the 12-month periods beginning on March 20 of the years indicated below:
YEAR REDEMPTION PRICE
----- ----------------
2001 103.57%
2002 102.86
2003 102.14
2004 101.43
2005 100.71
and thereafter at a Redemption Price equal to 100% of the principal
amount, together, in each case, with accrued interest to the Redemption
Date; provided, however, that interest installments on Securities whose
Stated Maturity is on or prior to such Redemption Date will be payable
to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
In the event of a redemption of the Securities, the Company will not be
required (a) to register the transfer or exchange of Securities for a
period of 15 days immediately preceding the date notice is given
identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer or exchange of any Security,
or portion thereof, called for redemption.
In any case where the due date for the payment of the principal of,
premium, if any, interest, or Liquidated Damages on any Security or the
last day on which a Holder of a Security has a right to convert his
Security shall be, at any Place of Payment or Place of Conversion as the
case may be, a day on which banking institutions at such Place of
Payment or Place of Conversion are authorized or obligated by law or
executive order to close, then payment of principal, premium, if any,
interest, or Liquidated Damages, or delivery for conversion of such
Security need not be made on or by such date at such place but may be
made on or by the next succeeding day at such place which is not a day
on which banking institutions are authorized or obligated by law or
executive order to close, with the same force and effect as if made on
the date for such payment or the date fixed for redemption or
repurchase, or by such last day for conversion, and no interest shall
accrue on the amount so payable for the period after such date.
Subject to and upon compliance with the provisions of the Indenture, the
Holder of this Security is entitled, at his option, at any time
following the initial issuance date of the Securities and on or before
the close of business on the date of Maturity, or in case this Security
or a portion hereof is called for redemption or the Holder hereof has
exercised his right to require the Company to repurchase this Security
or such portion hereof, then in respect of this Security until and
including, but (unless the Company defaults in making the payment due
upon redemption or repurchase, as the case may be) not after, the close
of business on the Redemption Date or the Repurchase Date, as the case
may be, to convert this Security (or any portion of the principal amount
hereof that is an integral multiple of U.S.$1,000, provided that the
unconverted portion of such principal amount is U.S.$1,000 or any
integral multiple of U.S.$1,000 in excess thereof) into fully paid and
nonassessable shares of Common Stock of the Company at an initial
Conversion Rate of 10.9463 shares of Common Stock for each U.S.$1,000
principal amount of Securities (or at the current adjusted Conversion
Rate if an adjustment has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned to the Company or
in blank, with the conversion notice hereon duly executed and, in case
such surrender shall be made during the period from the close of
business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date (except if
this Security or portion thereof has been called for redemption on a
Redemption Date during the period from such Regular Record Date through
the date that is three Business Days following such Interest Payment
Date), also accompanied by payment in New York Clearing House or other
funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of this
Security then being converted, to the Company at the Corporate Trust
Office of the Trustee, or at such other office or agency of the Company,
subject to any laws or regulations applicable thereto and subject to the
right of the Company to terminate the appointment of any Conversion
Agent (as defined below) as may be designated by it for such purpose in
the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate (each a "Conversion
Agent"). Subject, in the case of a conversion after the close of
business on the Regular Record Date next preceding any Interest Payment
Date and on or before the close of business on such Interest Payment
Date, to the right of the Holder of this Security (or any Predecessor
Security of record as of such Regular Record Date) to receive the
related installment of interest to the extent and under the
circumstances provided in the Indenture, no cash payment or adjustment
is to be made on conversion for interest accrued hereon from the
Interest Payment Date next preceding the day of conversion, or for
dividends on the Common Stock issued on conversion hereof. The Company
shall thereafter deliver to the Holder the fixed number of shares of
Common Stock (together with any cash adjustment, as provided in the
Indenture) into which this Security is convertible and such delivery
will be deemed to satisfy the Company's obligation to pay the principal
amount of this Security. No fractions of shares or scrip representing
fractions of shares will be issued on conversion, but instead of any
fractional interest (calculated to the nearest 1/100th of a share) the
Company shall pay a cash adjustment as provided in the Indenture. The
Conversion Rate is subject to adjustment as provided in the Indenture.
In addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party (other than a
consolidation or merger that does not result in any reclassification,
conversion, exchange or cancellation of the Common Stock) or the
conveyance, transfer, sale or lease of all or substantially all of the
property and assets of the Company, the Indenture shall be amended,
without the consent of any Holders of Securities, so that this
Security, if then Outstanding, will be convertible thereafter, during
the period this Security shall be convertible as specified above, only
into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, transfer, sale
or lease by a holder of the number of shares of Common Stock of the
Company into which this Security could have been converted immediately
prior to such consolidation, merger, conveyance, transfer, sale or
lease (assuming such holder of Common Stock is not a Constituent Person
or an Affiliate of a Constituent Person, failed to exercise any rights
of election and received per share the kind and amount received per
share by a plurality of Non-electing Shares). No adjustment in the
Conversion Rate will be made until such adjustment would require an
increase or decrease of at least one percent of such rate, provided
that any adjustment that would otherwise be made will be carried
forward and taken into account in the computation of any subsequent
adjustment.
If this Security is a Registrable Security (as defined in this
Indenture), then the Holder of this Security (including any Person that
has a beneficial interest in this Security) and the Common Stock of the
Company issuable upon conversion hereof is entitled to the benefits of
the Registration Rights Agreement, dated as of March 1, 1999 (the
"Registration Rights Agreement"), between the Company and the Initial
Purchasers, as such agreement may be amended from time to time.
Pursuant to the Registration Rights Agreement, the Company has agreed
for the benefit of the Holders from time to time of the Registrable
Securities that it will, at its expense, (a) within 90 days after the
Issue Date file a shelf registration statement (the "Shelf Registration
Statement") with the Commission with respect to resales of the
Registrable Securities, (b) use all reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the Commission
within 180 days after the Issue Date of the Securities, 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, and (c) use all reasonable efforts to maintain such Shelf
Registration Statement effective under the Securities Act of 1933, as
amended, until the second annual anniversary of the date it is declared
effective or such earlier date as is provided in the Registration Rights
Agreement (the "Effectiveness Period"). The Company will be permitted
to suspend the use of the prospectus which is part of the Shelf
Registration Statement during certain periods of time as provided in
the Registration Rights Agreement.
If (i) on or prior to 90 days following the Issue Date, a Shelf
Registration Statement has not been filed with the Commission, or (ii)
on or prior to the 180th day following the Issue Date, such Shelf
Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on
this Restricted Security from and including the day following such
Registration Default to but excluding the day on which such Registration
Default has been cured. Liquidated Damages will be paid semi-annually in
arrears, with the first semi-annual payment due on the first Interest
Payment Date, as applicable, in respect of the Restricted Securities
following the date on which such Liquidated Damages begin to accrue, and
will accrue at a rate per annum equal to an additional one-quarter of
one percent (0.25%) of the principal amount of the Restricted Securities
to and including the 90th day following such Registration Default and at
a rate per annum equal to one-half of one percent (0.50%) thereof from
and after the 91st day following such Registration Default. Pursuant to
the Registration Rights Agreement, 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")
during the Effectiveness Period for more than 45 days, whether or not
consecutive, during any 90 day period, or for more than 90 days, whether
or not consecutive, during any 12-month period, then the interest rate
borne by the Restricted Securities shall increase by an additional
one-half of one percent (0.50%) per annum from the 46th day of the
applicable 90 day period or the 91st day of the applicable 12-month
period, as the case may be, until such time as the Effective Failure is
cured.
Whenever in this Security there is a reference, in any context, to the
payment of the principal of, premium, if any, or interest on, or in
respect of, any Security, such mention shall be deemed to include
mention of the payment of Liquidated Damages payable as described in the
preceding paragraph to the extent that, in such context, Liquidated
Damages are, were or would be payable in respect of such Security and
express mention of the payment of Liquidated Damages (if applicable) in
any provisions of this Security shall not be construed as excluding
Liquidated Damages in those provisions of this Security where such
express mention is not made.
If this Security is a Registrable Security and the Holder of this
Security (including any Person that has a beneficial interest in this
Security) elects to sell this Security pursuant to the Shelf
Registration Statement then, by its acceptance hereof, such Holder of
this Security agrees to be bound by the terms of the Registration Rights
Agreement relating to the Registrable Securities which are the subject
of such election.
If a Change in Control occurs, the Holder of this Security, at the
Holder's option, shall have the right, in accordance with the provisions
of the Indenture, to require the Company to repurchase this Security (or
any portion of the principal amount hereof that is an integral multiple
of $1,000 for cash at a Repurchase Price equal to 100% of the principal
amount thereof plus interest accrued to the Repurchase Date. At the
option of the Company, the Repurchase Price may be paid in cash or,
subject to the conditions provided in the Indenture, by delivery of
shares of Common Stock having a fair market value equal to the
Repurchase Price. For purposes of this paragraph, the fair market value
of shares of Common Stock shall be determined by the Company and shall
be equal to 95% of the average of the Closing Prices Per Share for the
five consecutive Trading Days immediately preceding and including the
third Trading Day prior to the Repurchase Date. Whenever in this
Security there is a reference, in any context, to the principal of any
Security as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such Security to
the extent that such Repurchase Price is, was or would be so payable at
such time, and express mention of the Repurchase Price in any provision
of this Security shall not be construed as excluding the Repurchase
Price so payable in those provisions of this Security when such express
mention is not made; provided, however, that, for the purposes of the
second succeeding paragraph, such reference shall be deemed to include
reference to the Repurchase Price only to the extent the Repurchase
Price is payable in cash.
In the event of a deposit or withdrawal of an interest in this Security,
including an exchange, transfer, redemption, repurchase or conversion of
this Security in part only, the Trustee, as custodian of the Depositary,
shall make an adjustment on its records to reflect such deposit or
withdrawal in accordance with the Applicable Procedures.
The indebtedness evidenced by this Security is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the
Company, and this Security is issued subject to such provisions of the
Indenture with respect thereto. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and
all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities, together with accrued interest to the date of
declaration, may be declared due and payable in the manner and with the
effect provided in the Indenture. Upon payment (i) of the amount of
principal so declared due and payable, together with accrued interest to
the date of declaration, and (ii) of interest on any overdue principal
and, to the extent permitted by applicable law, overdue interest, all of
the Company's obligations in respect of the payment of the principal of
and interest on the Securities shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities under the
Indenture at any time by the Company and the Trustee with either (a) the
written consent of the Holders of not less than a majority in principal
amount of the Securities at the time Outstanding, or (b) by the adoption
of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of at least 66-2/3% in
aggregate principal amount of the Outstanding Securities represented and
entitled to vote at such meeting. The Indenture also contains
provisions permitting the Holders of specified percentages in principal
amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security
issued in exchange therefore or in lieu hereof whether or not notation
of such consent or waiver is made upon this Security or such other Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in
principal amount of the Securities Outstanding a direction inconsistent
with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of
principal hereof, premiums if any, or interest (including Liquidated
Damages) hereon on or after the respective due dates expressed herein or
for the enforcement of the right to convert this Security as provided in
the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium,
if any, and interest (including Liquidated Damages) on this Security at
the times, places and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Security
Register upon surrender of this Security for registration of transfer
at the Corporate Trust Office of the Trustee or at such other office or
agency of the Company as may be designated by it for such purpose in the
Borough of Manhattan, The City of New York (which shall initially be an
office or agency of the Trustee), or at such other offices or agencies
as the Company may designate, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees by the Registrar. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to recover any tax or other governmental
charge payable in connection therewith.
Prior to due presentation of a this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is
registered, as the owner thereof for all purposes, whether or not such
Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
No recourse for the payment of the principal (and premium, if any) or
interest on this Security and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or
subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as
part of consideration for the issue hereof, expressly waived and
released.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Security, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM as tenant in common
TEN ENT as tenants by the entireties (Cust)
JT TEN as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ____ Custodian _____
(Cust) (Minor)
under Uniform
Gifts to Minors Act _____
(State)
Additional abbreviations may also be used though not in the above list.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
(1) Pursuant to Article 14.1 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
(2) The undersigned hereby directs the Trustee or the Company to pay
it or ______________ an amount in cash or, at the Company's
election, Common Stock valued as set forth in the Indenture, equal
to 100% of the principal amount to be repurchased (as set forth
below), plus interest accrued to the Repurchase Date, as provided
in the Indenture.
Dated: ______________
______________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
______________________________________
Signature Guarantee
Principal amount to be repurchased (at least
U.S. $5,000 or an integral multiple of $1,000
in excess thereof): ___________________
Remaining principal amount following such
repurchase (not less than U.S. $1,000):
______________
NOTICE: The signature to the foregoing Election must correspond to the
Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
CONVERSION NOTICE
To: Exodus Communications, Inc.
The undersigned Holder of this Security hereby irrevocably
exercises the option to convert this Security, or any portion of the
principal amount hereof (which is U.S.$1,000 or an integral multiple of
U.S.$1,000 in excess thereof, provided that the unconverted portion of
such principal amount is U.S. $1,000 or any integral multiple of U.S.
$1,000 in excess thereof) below designated, into shares of Common Stock
in accordance with the terms of the Indenture referred to in this
Security, and directs that such shares, together with a check in payment
for any fractional share and any Securities representing any unconverted
principal amount hereof, be delivered to and be registered in the name
of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of
a Person other than the undersigned, (a) the undersigned will pay all
transfer taxes payable with respect thereto and (b) signature(s) must be
guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
Dated:__________________ ___________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
_____________________________________
Signature Guarantee
If shares or Securities are to be registered in the name of a Person
other than the Holder, please
print such Person's name and address:
______________________________________
(Name)
______________________________________
(Address)
______________________________________
Social Security or other Identification
Number, if any.
If only a portion of the Securities is to be converted, please indicate:
1. Principal amount to be converted: U.S. $ ___________
2. Principal amount and denomination of Securities
representing unconverted principal amount to be issued:
Amount: U.S. $___________ Denominations: U.S. $____________
(U.S.$1,000 or any integral multiple of U.S.$1,000 in excess thereof,
provided that the unconverted portion of such principal amount is U.S.
$1,000 or any integral multiple of U.S. $1,000 in excess thereof)
ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ (Please insert social security or
other identifying number of assignee) the within Security, and hereby
irrevocably constitutes and appoints ____________________as attorney to
transfer the said Security on the books of the Company, with full power
of substitution in the premises.
Dated:_________________
______________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
______________________________________
Signature Guarantee
