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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF
THE SECURITIES EXCHANGE ACT OF l934
Exodus Communications, Inc.
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(Exact name of registrant as specified in its charter)
DELAWARE 77-0403076
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
2650 SAN TOMAS EXPRESSWAY
Santa Clara, CA 95051
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(Address of principal executive offices) (Zip Code)
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If this Form relates to the registration of a If this Form relates to the registration of a
class of securities pursuant to Section 12(b) of class of securities pursuant to Section 12(g) of
the Exchange Act and is effective pursuant to the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following General Instruction A.(d), check the following
box. [_] box. [X]
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Securities Act registration statement file number to which this form relates:
333-44469
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Securities to be registered pursuant to Section 12(b) of the Act:
NONE
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Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $0.001 PAR VALUE
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The description of the Common Stock of Registrant set forth under the
caption "Description of Capital Stock" in Registrant's Registration Statement on
Form S-1 (File No. 333-4469) as originally filed with the Securities and
Exchange Commission on January 16, 1998, or as subsequently amended (the
"Registration Statement"), and in the Prospectus included in the Registration
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Statement, is hereby incorporated by reference in response to this item.
ITEM 2. EXHIBITS.
The following exhibits are filed herewith or incorporated herein by
reference:
Exhibit
Number Exhibit Title or Description
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3.01 Amended and Restated Articles of
Incorporation of Exodus Communications, Inc., a
California corporation (incorporated by reference
to Exhibit 3.01 to the Registration Statement).
3.02 Registrant's Certificate of Incorporation,
as currently in effect (incorporated by reference
to Exhibit 3.02 to the Registration Statement).
3.03 Registrant's Certificate of Designation
(incorporated by reference to Exhibit 3.03 to the
Registration Statement).
3.04 Form of Registrant's Amended and Restated
Certificate of Incorporation to be filed
immediately following the offering (incorporated
by reference to Exhibit 3.04 to the Registration
Statement).
3.05 Bylaws of Exodus Communications, Inc., a
California corporation (incorporated by reference
to Exhibit 3.05 to the Registration Statement).
3.06 Registrant's Bylaws (incorporated by
reference to Exhibit 3.06 to the Registration
Statement).
4.01 Form of Specimen Certificate for
Registrant's Common Stock (incorporated by
reference to Exhibit 4.01 to the Registration
Statement).
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99.01 The description of Registrant's Common Stock
set forth under the caption "Description of
Capital Stock" on pages 65 through 67 of the
Prospectus included in the Registration Statement.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Dated: February 12, 1998 Exodus Communications, Inc.
By: /s/ K.B. Chandrasekhar
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K.B. Chandrasekhar
President and Chief Executive Officer
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INDEX TO EXHIBITS
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Exhibit
Number Exhibit Title or Description
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3.01 Amended and Restated Articles of Incorporation of Exodus
Communications, Inc., a California corporation (incorporated by
reference to Exhibit 3.01 to the Registration Statement).
3.02 Registrant's Certificate of Incorporation, as currently in effect
(incorporated by reference to Exhibit 3.02 to the Registration
Statement).
3.03 Registrant's Certificate of Designation (incorporated by reference to
Exhibit 3.03 to the Registration Statement).
3.04 Form of Registrant's Amended and Restated Certificate of
Incorporation to be filed immediately following the offering
(incorporated by reference to Exhibit 3.04 to the Registration
Statement).
3.05 Bylaws of Exodus Communications, Inc., a California corporation
(incorporated by reference to Exhibit 3.05 to the Registration
Statement).
3.06 Registrant's Bylaws (incorporated by reference to Exhibit 3.06 to the
Registration Statement).
4.01 Form of Specimen Certificate for Registrant's Common Stock
(incorporated by reference to Exhibit 4.01 to the Registration
Statement).
99.01 The description of Registrant's Common Stock set forth under the
caption "Description of Capital Stock" on pages 65 through 67 of the
Prospectus included in the Registration Statement.
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EXHIBIT 99.01
DESCRIPTION OF CAPITAL STOCK
Immediately following the closing of this offering, the authorized capital
stock of the Company will consist of 50,000,000 shares of Common Stock, $0.001
par value per share, and 5,000,000 shares of Preferred Stock, $0.001 par value
per share. As of December 31, 1997, and assuming the conversion of all
outstanding Preferred Stock into Common Stock immediately prior to the closing
of this offering, there were outstanding 13,439,624 shares of Common Stock
held of record by 117 stockholders, warrants to purchase 950,163 shares of
Common Stock and options to purchase 1,709,286 shares of Common Stock.
COMMON STOCK
Subject to preferences that may apply to shares of Preferred Stock
outstanding at the time, the holders of outstanding shares of Common Stock are
entitled to receive dividends out of assets legally available therefor at such
times and in such amounts as the Board may from time to time determine. Each
stockholder is entitled to one vote for each share of Common Stock held on all
matters submitted to a vote of stockholders. Cumulative voting for the
election of directors is not provided for in the Company's Certificate of
Incorporation, which means that the holders of a majority of the shares voted
can elect all of the directors then standing for election. The Common Stock is
not entitled to preemptive rights and is not subject to conversion or
redemption. Upon a liquidation, dissolution or winding-up of the Company, the
assets legally available for distribution to stockholders are distributable
ratably among the holders of the Common Stock and any participating Preferred
Stock outstanding at that time after payment of liquidation preferences, if
any, on any outstanding Preferred Stock and payment of other claims of
creditors. Each outstanding share of Common Stock is, and all shares of Common
Stock to be outstanding upon completion of this offering will be, fully paid
and nonassessable.
PREFERRED STOCK
Upon the closing of this offering, all outstanding shares of Preferred Stock
(the "Convertible Preferred") will be converted into shares of Common Stock.
See Note 5 of Notes to Financial Statements for a description of the
Convertible Preferred. The Board is authorized, subject to limitations
prescribed by Delaware law, to provide for the issuance of additional shares
of Preferred Stock in one or more series, to establish from time to time the
number of shares to be included in each such series, to fix the powers,
designations, preferences and rights of the shares of each wholly unissued
series and designate any qualifications, limitations or restrictions thereon
and to increase or decrease the number of shares of any such series (but not
below the number of shares of such series then outstanding) without any
further vote or action by the stockholders. The issuance of Preferred Stock
with voting or conversion rights could adversely affect the voting power or
other rights of the holders of Common Stock and may have the effect of
delaying, deferring or preventing a change in control of the Company. The
Company has no current plan to issue any shares of Preferred Stock.
WARRANTS
As of December 31, 1997, the Company had outstanding warrants to purchase
950,163 shares of Common Stock at a weighted average per share exercise price
of $4.29 (of which warrants to purchase at least 615,454 shares of Common
Stock are expected to be exercised on or before the closing of the offering).
The warrants that remain outstanding after the offering will expire between
December 2000 and September 2004.
ANTI-TAKEOVER PROVISIONS
DELAWARE LAW
Section 203 ("Section 203") of the Delaware General Corporation Law is
applicable to corporate takeovers of Delaware corporations. Subject to certain
exceptions set forth therein, Section 203
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provides that a corporation shall not engage in any business combination with
any "interested stockholder" for a three-year period following the date that
such stockholder becomes an interested stockholder unless (a) prior to such
date, the board of directors of the corporation approved either the business
combination or the transaction that resulted in the stockholder becoming an
interested stockholder, (b) upon consummation of the transaction that resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding certain shares)
or (c) on or subsequent to such date, the business combination is approved by
the board of directors of the corporation and by the affirmative votes of at
least two-thirds of the outstanding voting stock that is not owned by the
interested stockholder. Except as specified in Section 203, an interested
stockholder is generally defined to include any person that is the owner of
15% or more of the outstanding voting stock of the corporation, or is an
affiliate or associate of the corporation and was the owner of 15% or more of
the outstanding voting stock of the corporation, or is an affiliate or
associate of the corporation and was the owner of 15% or more of the
outstanding voting stock of the corporation any time within three years
immediately prior to the relevant date, and the affiliates and associates of
such person. Under certain circumstances, Section 203 makes it more difficult
for an interested stockholder to effect various business combinations with a
corporation for a three-year period, although the stockholders may, by
adopting an amendment to the corporation's certificate of incorporation or
bylaws, elect not to be governed by this section, effective 12 months after
adoption. The Company's certificate of incorporation and the bylaws do not
exclude the Company from the restrictions imposed under Section 203. It is
anticipated that the provisions of Section 203 may encourage companies
interested in acquiring the Company to negotiate in advance with the Board
since the stockholder approval requirement would be avoided if a majority of
the directors then in office approve either the business combination or the
transaction that resulted in the stockholder becoming an interested
stockholder. These provisions may have the effect of deterring hostile
takeovers or delaying changes in control of the Company, which could depress
the market price of the Common Stock and which could deprive the stockholders
of opportunities to realize a premium on shares of the Common Stock held by
them.
CHARTER AND BYLAW PROVISIONS
The Company's Certificate of Incorporation and Bylaws contain certain
provisions that could discourage potential takeover attempts and make more
difficult attempts by stockholders to change management. The Company's
Certificate of Incorporation provides that stockholders may not take action by
written consent but only at a stockholders' meeting, and that special meetings
of the stockholders of the Company may only be called by the Chairman of the
Board or a majority of the Board.
REGISTRATION RIGHTS
Beginning six months after the date of this offering (assuming no exercise
of the Underwriters' over-allotment option), the holders of 13,234,880 shares
of Common Stock and the holders of warrants to purchase 950,163 shares of
Common Stock (collectively, the "Registrable Securities") will have certain
rights with respect to the registration of those shares under the Securities
Act. If requested by at least 30% of the Registrable Securities (or at least
25% of the Registrable Securities issued upon conversion of the Series C
Preferred Stock of the Company) the Company must file a registration statement
to register such securities so long as the aggregate offering price, net of
any underwriting discounts and commissions, is at least $7.5 million. In
addition, if the Company proposes to register any of its shares of Common
Stock under the Securities Act other than in connection with a Company
employee benefit plan or certain corporate acquisitions, mergers or
reorganizations, the holders of the Registrable Securities may require the
Company to include all or a portion of their shares in such registration,
subject to certain rights of the managing underwriter to limit the number of
shares in any such offering.
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Further, holders of Registrable Securities holding at least 20% of the
Registrable Securities (or at least 15% of the Registrable Securities issued
upon conversion of the Series C Preferred Stock of the Company) may require
the Company to register all or any portion of their Registrable Securities on
Form S-3 when such form becomes available to the Company, subject to certain
conditions and limitations. The Company may be required to effect up to two
such registrations per year.
All expenses incurred in connection with such registrations (other than
underwriters' discounts and commissions) will be borne by the Company, except
that the holders of the Registrable Securities will bear the expenses of any
Form S-3 registrations after the first such registration. The registration
rights expire seven years after the closing of this offering. In addition, no
holder of Registrable Securities will be entitled to registration rights if
and so long as such holder can sell all of its Registrable Securities in
compliance with Rule 144 of the Securities Act during any 90-day period.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Company's Common Stock is Boston
EquiServe Limited Partnership.
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for the Common Stock of the
Company, and there can be no assurance that a significant public market for
the Common Stock will develop or be sustained after this offering. Future
sales of substantial amounts of Common Stock (including shares issued upon
exercise of outstanding options and warrants) in the public market after this
offering could adversely affect market prices prevailing from time to time and
could impair the Company's ability to raise capital through sale of its equity
securities. As described below, no shares currently outstanding will be
available for sale immediately after this offering due to certain contractual
restrictions on resale. Sales of substantial amounts of Common Stock of the
Company in the public market after the restrictions lapse could adversely
affect the prevailing market price and the ability of the Company to raise
equity capital in the future.
Upon completion of this offering, the Company will have outstanding
shares of Common Stock, assuming no exercise of the Underwriters' over-
allotment option and no exercise of outstanding options or warrants that do
not expire upon the closing. Of these shares, the shares sold in this
offering will be freely tradable without restriction under the Securities Act
unless purchased by "affiliates" of the Company as that term is defined in
Rule 144 under the Securities Act. The remaining 13,439,624 shares held by
existing stockholders (the "Restricted Shares") are subject to lock-up
agreements providing that, with certain limited exceptions, the stockholder
will not offer, sell, contract to sell, grant an option to purchase, make a
short sale or otherwise dispose of or engage in any hedging or other
transaction that is designed or reasonably expected to lead to a disposition
of any shares of Common Stock or any option or warrant to purchase shares of
Common Stock or any securities exchangeable for or convertible into shares of
Common Stock for a period of 180 days after the date of this Prospectus
without the prior written consent of the representatives of the Underwriters.
As a result of these lock-up agreements, notwithstanding possible earlier
eligibility for sale under the provisions of Rules 144, 144(k) and 701, none
of these shares will be salable until 181 days after the date of this
Prospectus. Beginning 181 days after the date of this Prospectus, 12,086,491
Restricted Shares will be eligible for sale in the public market, although all
but 3,526,872 shares will be subject to certain volume limitations.
Thereafter, 1,014,367 Restricted Shares will become eligible for sale between
the end of the lock-up period and December 31, 1998 and the remaining 338,766
Restricted Shares will become eligible for sale starting in 1999. In addition,
as of December 31, 1997, there were outstanding 1,709,286 options and 950,163
warrants to purchase Common Stock (of which warrants for 615,454 shares are
expected to be exercised on or before the closing of this offering).
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