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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
AMENDMENT NO. 2
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.)
2831 Mission College Boulevard
Santa Clara, CA 95054
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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 of a
a class of securities pursuant to Section class of Securities pursuant to Section 12(g)
12(b) of the Exchange Act and is effective of the Exchange Act and is effective
pursuant to General Instruction A. (c), pursuant to General Instruction A. (d),
Please check the following box. [ ] 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.
On January 9, 2001 the Rights Agreement was amended such that Global
Crossing Ltd. and its Affiliates and Associates (collectively, "Global
Crossing") will not be deemed an Acquiring Person (as defined below) unless they
collectively acquire beneficial ownership of at least that percentage of
outstanding Exodus common stock equal to the percentage beneficially owned by
Global Crossing and its Affiliates and Associates immediately following the
closing of the merger of GlobalCenter Holding Co. with a wholly-owned subsidiary
of Exodus, plus one percent.
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. and 21.1% in the case of Global Crossing) 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
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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 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. or 21.1% in the case of Global Crossing) 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
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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 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 January 8, 2001, there were approximately 428.9 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
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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 Restated Certificate of Incorporation.
(Incorporated by reference to Exhibit 4.01 to Registrant's
Registration Statement on Form S-8 (File #333-38980) filed
with the Securities and Exchange Commission ("SEC") on June
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9, 2000).
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.
(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 No. 1 to the Rights Agreement dated October 20, 1999.
(Incorporated by reference to Exhibit 4.05 to the Form 8-A/A
Amendment No.1 filed with the SEC on November 29, 1999).
4.06 Amendment No. 2 to the Rights Agreement dated January 9, 2001.
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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: January 9, 2001
EXODUS COMMUNICATIONS, INC.
By: /s/ R. Marshall Case
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R. Marshall Case
Executive V.P., Finance and Chief Financial
Officer
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EXHIBIT INDEX
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Exhibit
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3.01 Registrant's Restated Certificate of Incorporation. (Incorporated by
reference to Exhibit 4.01 to Registrant's Registration Statement on Form
S-8 (File #333-38980) filed with the SEC on June 9, 2000).
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. (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
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A the form of Certificate of Designations of Series A Junior Participating
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Preferred Stock, as Exhibit B the Form of Rights Certificate and as
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Exhibit C the Summary of Rights to Purchase Preferred Shares. The Rights-
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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 No. 1 to the Rights Agreement dated October 20, 1999.
(Incorporated by reference to Exhibit 4.05 to the Form 8-A/A Amendment
No.1 filed with the SEC on November 29, 1999).
4.06 Amendment No. 2 to the Rights Agreement dated January 9, 2001.
