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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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 If this Form relates to the registration
a class of securities pursuant to Section of a class of Securities pursuant to
12(b) of the Exchange Act and is effective Section 12(g) of the Exchange Act and is
pursuant to General Instruction A. (c), effective pursuant to General Instruction
please check the following box. [ ] A. (d), please check the following box. [X]
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Securities Act registration statement file number to which this form
relates: Not applicable.
Securities to be registered pursuant to
Section 12(b) of the Act: None.
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
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(Title of Class)
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Item 1: Description of Registrant's Securities to be Requested:
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On January 26, 1999, the Board of Directors of Exodus Communications,
Inc. (the "Company") declared a dividend of one preferred share purchase right
(a "Right") for each share of Exodus common stock, outstanding on February 11,
1999 (the "Record Date"). In addition, one Right will be issued with each share
of Exodus common stock that becomes outstanding (i) between the Record Date and
the earliest of the Distribution Date (as defined below), the date the Rights
are redeemed and the date the Rights expire or (ii) following the Distribution
Date and prior to the date the rights are redeemed or the date the Rights
expire, pursuant to the exercise of employee stock options, or upon the
exercise, conversion or exchange of other securities of Exodus outstanding
before the Distribution Date. Each Right originally entitled its registered
holder to purchase from Exodus one one-hundredth of a share of newly designated
Exodus Series A Junior Participating Preferred Stock (the "Preferred Shares") at
a price of $350.00 per one one-hundredth of a Preferred Share. As a result of
two separate two-for-one common stock dividends by the Company subsequent to
February 11, 1999, each Right now entitles its holder to purchase from Exodus
one four-hundredth of a Preferred Share at a price of $87.50 per one four-
hundredth of a Preferred Share. A complete description of the terms of the
Rights are set forth in a Rights Agreement dated as of January 27, 1999 between
the Company and BankBoston, N.A., as Rights Agent.
On October 20, 1999 the Rights Agreement was amended such that FMR
Corp. will not be deemed an Acquiring Person (as defined below) unless it
acquires beneficial ownership of 20% or more of Exodus' outstanding common
stock.
Until the earlier to occur of (i) 10 days following a public
announcement or disclosure that a person or group of affiliated or associated
persons (an "Acquiring Person"), has acquired beneficial ownership of 15% (20%
in the case of FMR Corp.) or more of Exodus' outstanding common stock or (ii) 10
business days (or a later date determined by the Exodus Board of Directors
before a person or group becomes an Acquiring Person), following the
announcement of an intention to make a tender offer or exchange offer the
consummation of which would result in a person or group becoming an Acquiring
Person (the earlier of such dates being called the "Distribution Date"), the
Rights will be represented by common stock certificates with a copy of Summary
of Rights attached. No person or group will become an Acquiring Person if the
Exodus Board of Directors determines that such person crossed the ownership
threshold inadvertently, and such person or group promptly sells shares of
Exodus common stock until they own less than 15% of the outstanding common
stock.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred only with the Exodus common stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
common stock certificates issued after the Record Date will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the transfer of any common
stock certificates, even without such notation or a copy of the Summary of
Rights being attached, will also constitute the transfer of the Rights
associated with the Exodus common stock represented by such certificate. After
the Distribution Date, separate certificates representing the
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Rights will be mailed to holders of Exodus common stock on the Distribution Date
and such separate certificates alone will evidence the Rights. If shares of
Exodus common stock are issued or sold after the Distribution Date (but prior to
the redemption or expiration of the Rights) in connection with the exercise of
stock options or upon the exercise, conversion or exchange of other securities
of the Company outstanding prior to the Distribution Date, the Company will
issue the appropriate number of Rights in connection with such issuance or sale.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on January 27, 2009 unless the expiration date is extended or
unless the Rights are earlier redeemed or exchanged by Exodus, as described
below. Until a Right is exercised, the holder of a Right, as such, will have no
rights as a stockholder of Exodus.
The purchase price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment to prevent dilution. The number of outstanding Rights and the
number of one one-hundredths of a Preferred Share issuable upon exercise of each
Right are also subject to adjustment upon certain events occurring before the
Distribution Date.
The Preferred Shares have been structured so that each Preferred Share
has dividend, liquidation and voting rights equal to those of 100 shares of
Exodus common stock. Because of this, the value of the one one-hundredth
interest in a Preferred Share purchasable upon exercise of each Right should
approximate the value of one Common Share. The Preferred Shares are not
redeemable.
In the event that any person or group owns more than 15% (or 20% in
the case of FMR Corp.) of Exodus' outstanding common stock and thereby becomes
an Acquiring Person, unless the event causing the person to become an Acquiring
Person is a merger, acquisition or other business combination described in the
next paragraph, each holder of a Right, other than Rights beneficially owned by
the Acquiring Person (which will thereafter be void), will thereafter have the
right to receive upon exercise and payment of the exercise price that number of
shares of common stock having a market value of two times the exercise price of
the Right. If Exodus does not have enough authorized but unissued shares of
common stock to satisfy this obligation to issue common shares, Exodus will
deliver upon payment of the exercise price of a Right an amount of cash or other
securities equivalent in value to the shares of common stock issuable upon
exercise of a Right.
In the event that any person or group becomes an Acquiring Person and
Exodus merges into or engages in certain other business combinations with an
Acquiring Person or 50% or more of its consolidated assets or earning power are
sold to an Acquiring Person, each holder of a Right, other than Rights owned by
an Acquiring Person, will thereafter have the right to receive, upon exercise
and payment of the exercise price, that number of shares of common stock of the
acquiring company which at the time of such transaction will have a market value
of two times the exercise price of the Right.
At any time after a person or group becomes an Acquiring Person and
prior to such person or group acquiring a majority of the outstanding Exodus
common stock, the Exodus
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Board of Directors may exchange all or some of the Rights (other than Rights
owned by the Acquiring Person), at an exchange ratio of one common share, or
one one-hundredth of a Preferred Share (or other equivalent securities), per
Right.
At any time before a person or group becomes an Acquiring Person, the
Exodus Board of Directors may redeem (all but not some) of the Rights, at a
price of $0.001 per Right and on such other terms and conditions as the Board of
Directors may establish. After the period for redemption of the Rights has
expired, the Board may not amend the Rights Agreement to extend the period for
redemption of the Rights. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the redemption price.
The terms of the Rights may be amended by the Board of Directors,
without the consent of the holders of the Rights, except that after a person or
group becomes an Acquiring Person, no such amendment may adversely affect the
interests of the holders of the Rights (other than an Acquiring Person).
As of November 15, 1999, there were approximately 85.2 million
shares of Exodus common stock outstanding. Each share of Exodus common stock
outstanding at the close of business on February 11, 1999 received one Right.
As long as the Rights are attached to the common stock, one additional Right has
been and will be deemed to be delivered for each share of Exodus common stock
issued or transferred by Exodus after February 11, 1999. One million Preferred
Shares are initially reserved for issuance upon exercise of the Rights, such
number to be subject to adjustment from time to time in accordance with the
Rights Agreement.
The Rights Agreement, which specifies the terms of the Rights and
which includes as exhibits thereto the form of Certificate of Designations of
Series A Junior Participating Preferred Stock, the Form of Rights Certificate
and the form of Summary of Rights to Purchase Preferred Shares, is filed as
Exhibit 4.04 hereto. A copy of the Certificate of Designations of Series A
Junior Participating Preferred Stock as filed with the Delaware Secretary of
State, which specifies the terms of the Preferred Shares, is filed as Exhibit
3.02 hereto. The aforementioned exhibits hereto are incorporated herein by
reference, and the foregoing description of the Rights and Preferred Shares is
qualified in its entirety by reference to such exhibits.
Item 2: Exhibits
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3.01 Registrant's Amended and Restated Certificate of Incorporation
as filed with the Secretary of State of the State of Delaware
on March 24, 1998. (Incorporated by reference to Registrant's
Form 10-Q filed with the Securities and Exchange Commission
("SEC") on May 15, 1998 (File #0-23795)).
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3.02 Certificate of Designations specifying the terms of the Series
A Junior Participating Preferred Stock of the Registrant, as
filed with the Delaware Secretary of State on January 28,
1999.
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(Incorporated by reference to Exhibit 3.02 to the Registrant's
Registration Statement on Form 8-A filed with the SEC on
January 27, 1999 (the "Form 8-A")).
3.03 Registrant's Bylaws. (Incorporated by reference to Exhibit
3.06 to Registrant's Registration Statement on Form S-1
declared effective by the SEC on March 18, 1998 (File #333-
44469).
4.04 Rights Agreement dated January 27, 1999 between Registrant and
BankBoston, N.A., as Rights Agent (the "Rights Agreement"),
which includes as Exhibit A the form of Certificate of
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Designations of Series A Junior Participating Preferred Stock,
as Exhibit B the Form of Rights Certificate and as Exhibit C
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the Summary of Rights to Purchase Preferred Shares. The Rights
Certificates will not be distributed until after the
Distribution Date (as that term is defined in the Rights
Agreement). (Incorporated by reference to Exhibit 4.04 to the
Form 8-A).
4.05 Amendment to the Rights Agreement dated October 20, 1999.
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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 amendment to registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Dated: November 23, 1999
EXODUS COMMUNICATIONS, INC.
By: /s/ Ellen M. Hancock
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Ellen M. Hancock
Chief Executive Officer and President
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EXHIBIT INDEX
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Exhibit
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4.05 Amendment to the Rights Agreement dated October 20, 1999.
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Exhibit 4.05
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of October 20, 1999 (this "Amendment"), to the
Rights Agreement, dated as of January 27, 1999 (the "Rights Agreement"), between
Exodus Communications, Inc., a Delaware corporation (the "Company") and
BankBoston, N.A. (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, Section 27 of the Rights Agreement provides that the Company may,
and the Rights Agent shall, if the Company directs, supplement or amend the
Rights Agreement without the approval of any holders of Right Certificates to
make any provisions or changes with respect to the Rights which the Company may
deem necessary or desirable;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement is necessary and desirable to effect the following and the Company and
the Rights Agent desire to evidence such amendment in writing;
WHEREAS, upon the closing of the acquisition by the Company of Service
Metrix, Inc., FMR Corp. and its Affiliates and Associates, including accounts
for which FMR Corp. and its Affiliates and Associates have investment management
or advisory responsibilities (including the Fidelity Investments mutual funds)
may own in excess of 15% of the Company's outstanding Common Shares and the
Company desires to exclude from the definition of an "Acquiring Person" such
shareholders provided that their ownership does not exceed 20% of the Company's
outstanding Common Shares;
THEREFORE, in consideration of the foregoing and the mutual agreements set
forth herein, the parties hereto agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended to restate in
its entirety the first sentence of such Section as follows:
(a) "Acquiring Person" shall mean any Person who or which, together
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with all Affiliates and Associates of such Person, shall be the
beneficial owner of 15%, or in the case of FMR Corp. and its
Affiliates and Associates, including any accounts for which FMR
Corp. and its Affiliates and Associates have investment
management or advisory responsibilities (including the Fidelity
Investments mutual funds, but not including any of its Affiliates
identified in clauses (i), (ii), (iii) or (iv) of this sentence),
20% (15% or 20%, as the case may be, being the "Designated
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Percentage") or more of the Common Shares of the Company then
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outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or any Subsidiary of the Company or (iv) any entity
holding Common Shares for or pursuant to the terms of any such
plan.
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2. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware and
for all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts to be made and
performed entirely within such State.
3. This Amendment to the Rights Agreement may be executed in one or
more counterparts, each of which shall be an original but all of
which counterparts shall together constitute one and the same
instrument. Terms not defined herein shall, unless the context
otherwise requires, have the meanings assigned to such terms in the
Rights Agreement.
4. In all respects not inconsistent with the terms and provisions of
this Amendment to the Rights Agreement, the Rights Agreement is
hereby ratified, adopted, approved and confirmed. In executing and
delivering this Amendment, the Rights Agent shall be entitled to all
the privileges and immunities afforded to the Rights Agent under the
terms and conditions of the Rights Agreement.
5. If any term, provision, covenant or restriction of this Amendment to
the Rights Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this
Amendment to the Rights Agreement, and of the Rights Agreement,
shall remain in full force and effect and shall in no way be
effected, impaired or invalidated.
6. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first
above written.
EXODUS COMMUNICATIONS, INC. BANKBOSTON, N.A.
By: /s/ Adam W. Wegner By: /s/ Carol Mulvey-Eori
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Name: Adam W. Wegner Name: /s/ Carol Mulvey-Eori
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Title: Vice President and General Counsel Title: Administrative Manager
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