<PAGE>
As filed with the Securities and Exchange Commission on January 12, 2001
Registration No. 333-__________
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
EXODUS COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 77-0403076
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2831 Mission College Blvd.
Santa Clara, CA 95054
(408) 346-2200
(Address and Telephone Number of Registrant's Principal Executive Offices)
Stock options granted under the GlobalCenter Management
Stock Plan assumed by Registrant
Stock options granted under the Global Crossing Ltd. 1998 Stock
Option Plan assumed by Registrant
(Full Title of the Plans)
Ellen M. Hancock
President and Chief Executive Officer
Exodus Communications, Inc.
2831 Mission College Blvd.
Santa Clara, CA 95054
(408) 346-2200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Robert A. Freedman, Esq.
Craig A. Menden, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
To Be Offering Price Aggregate Registration
Title of Securities To Be Registered Registered Per Share Offering Price Fee
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 10,329,013 (1) $18.49 (2) $ 190,983,450 (2) $ 47,746
---------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value 2,382,583 (3) $36.70 (2) $ 87,440,796 (2) $ 21,860
---------------------------------------------------------------------------------------------------------------
Totals 12,711,596 _ _ $ 69,606
===============================================================================================================
</TABLE>
(1) Represents shares subject to outstanding stock options assumed from
GlobalCenter Inc., a Delaware corporation, which were originally issued
pursuant to the GlobalCenter Management Stock Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) and based upon the weighted average per
share exercise price for such outstanding options.
(3) Represents shares subject to outstanding stock options assumed from Global
Crossing Ltd., a Delaware corporation, which were originally issued
pursuant to the Global Crossing Ltd. 1998 Stock Incentive Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
ITEM 1. PLAN INFORMATION (1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION (1)
(1) Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act") and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The final prospectus filed November 8, 2000 pursuant to Rule 424(b)
under the Securities Act to the Registrant's Registration Statement on
Form S-4 (File No. 333-43470).
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 2000, as amended.
(c) The Registrant's Current Reports on Form 8-K filed April 7, 2000, June
21, 2000, June 30, 2000, September 28, 2000, October 13, 2000, October
20, 2000, November 3, 2000 and November 13, 2000.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on February 13,
1998 under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report filed
for the purpose of updating such description and the description of
the Registrant's Preferred Stock Purchase Rights contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on January 29, 1999 under Section 12(g) of the Exchange
Act, as amended by Form 8-A/A filed on November 29, 1999 and Form 8-
A/A filed on January 10, 2001, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities registered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit. In addition, as
permitted by Section 145 of the Delaware General Corporation Law, the Bylaws of
the Registrant provide that: (i) the Registrant is required to indemnify its
directors and executive officers to the fullest extent permitted by the Delaware
General Corporation Law; (ii) the Registrant may, in its discretion, indemnify
other officers, employees and agents as set forth in the Delaware General
Corporation Law; (iii) upon receipt of an undertaking to repay such advances if
indemnification is determined to be unavailable, the Registrant is required to
advance expenses, as incurred, to its directors and executive officers to the
fullest extent permitted by the Delaware General Corporation Law in connection
with a proceeding (except if a determination is reasonably and promptly made by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to the proceeding or, in certain circumstances, by
independent legal counsel in a written opinion that the facts known to the
decision-making party demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in, or
not opposed to, the best interests of the corporation); (iv) the rights
conferred in the Bylaws are not exclusive and the Registrant is authorized to
enter into indemnification agreements with its directors, officers and employees
and agents; (v) the Registrant may not retroactively amend the Bylaw provisions
relating to indemnity; and (vi) to the fullest extent permitted by the Delaware
General Corporation Law, a director or executive officer will be deemed to have
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the Registrant and, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe that
his or her conduct was unlawful if his or her action is based on the records or
books of account of the corporation or on information supplied to him or her by
officers of the corporation in the course of their duties or on the advice of
legal counsel for the corporation or on information or records given or reports
made to the corporation by independent certified public accountants or
appraisers or other experts.
The Registrant's policy is to enter into indemnification agreements with
each of its directors and executive officers. The indemnification agreements
provide that directors and executive officers will be indemnified and held
harmless to the fullest possible extent permitted by law including against all
expenses (including attorneys' fees), judgments, fines and settlement amounts
paid or reasonably incurred by them in any action, suit or proceeding, including
any derivative action by or in the right of the Registrant, on account of their
services as directors, officers, employees or agents of the Registrant or as
directors, officers, employees or agents of any other company or enterprise when
they are serving in such capacities at the request of the Registrant. The
Registrant will not be obligated pursuant to the agreements to indemnify or
advance expenses to an indemnified party with respect to proceedings or claims
(i) initiated or brought voluntarily by the indemnified party and not by way of
defense, except with respect to a proceeding to establish or enforce a right to
indemnification under the indemnification agreements or any other agreement or
insurance policy or under the Registrant's Certificate of Incorporation or
Bylaws now or hereafter in effect relating to indemnification, or authorized by
the Board of Directors or as otherwise required under Delaware statute or law,
regardless of whether the indemnified party is ultimately determined to be
entitled to such indemnification, (ii) for expenses and the payment of profits
arising from the purchase and sale by the indemnified party of securities in
violation of Section 16(b) of the Exchange Act or any similar successor statute
or (iii) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
The indemnification agreement also provides for contribution in certain
situations in which the Registrant and a director or executive officer are
jointly liable but indemnification is unavailable, such contribution to be based
on the relative benefits received and the relative fault of the Registrant and
the director or executive officer. No contribution is allowed to a person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act of 1933, as amended (the "Securities Act")) from any person
who was not found guilty of such fraudulent misrepresentation.
The indemnification agreement requires a director or executive officer to
reimburse the Registrant for all expenses advanced only to the extent it is
ultimately determined that the director or executive officer is not entitled,
<PAGE>
under Delaware law, the Bylaws, the indemnification agreement or otherwise, to
be indemnified for such expenses. The indemnification agreement provides that it
is not exclusive of any rights a director or executive officer may have under
the Certificate of Incorporation, Bylaws, other agreements, any majority-in-
interest vote of the stockholders or vote of disinterested directors, Delaware
law or otherwise.
The indemnification provision in the Bylaws, and the form of
indemnification agreements entered into between the Registrant and its directors
and executive officers, may be sufficiently broad to permit indemnification of
the Registrant's executive officers and directors for liabilities arising under
the Securities Act.
As authorized by the Registrant's Bylaws, the Registrant, with approval by
the Board, maintains director and officer liability insurance.
In addition, Thadeus Mocarski, a director of the Registrant, is indemnified
in certain circumstances by Fleet Financial Group, Inc.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Exhibit Title
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4.01 Registrant's Restated Certificate of Incorporation, as amended
(incorporated herein by reference to Exhibit 4.01 of the
Registrant's Registration Statement on Form S-8 filed with the
Commission on July 19, 1999).
4.02 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 herein by reference to Exhibit 3.02 of the
Registrant's Registration Statement on Form 8-A filed with the
Commission on January 29, 1999).
4.03 Registrant's Bylaws (incorporated herein by reference to Exhibit
3.06 of the Registrant's Registration Statement on Form S-1,
Registration No. 333-44469, declared effective by the Commission
on March 18, 1998.)
4.04 Rights Agreement dated January 27, 1999 between Registrant and
BankBoston, N.A., as Rights Agent (incorporated herein by
reference to Exhibit 4.04 of the Registrant's Registration
Statement on Form 8-A filed with the Commission on January 29,
1999).
4.05 Amendment to Rights Agreement dated October 20, 1999 between
Registrant and BankBoston, N.A., as Rights Agent (incorporated
herein by reference to Exhibit 4.05 of the Registrant's Amended
Registration Statement on Form 8-A filed with the Commission on
November 29, 1999).
4.06 Amendment to Rights Agreement dated January 10, 2001 between
Registrant and BankBoston, N.A., as Rights Agent (incorporated
herein by reference to Exhibit 4.05 of the Registrant's Amended
Registration Statement on Form 8-A filed with the Commission on
January 10, 2001).
4.07 GlobalCenter Management Stock Plan and related form of Stock
Option Agreement (1).
4.08 Global Crossing Ltd. 1998 Stock Incentive Plan and related form
of Stock Option Agreement (1).
<PAGE>
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of KPMG LLP, independent auditors.
24.01 Power of Attorney (see signature page of Form S-8).
________________
(1) GlobalCenter Inc. ("GlobalCenter") is a Delaware corporation that was
acquired by the Registrant on January 10, 2001 (through a merger of a
wholly-owned subsidiary of the Registrant with and into GlobalCenter
Holding Co., a Delaware corporation and the parent corporation of
GlobalCenter) pursuant to the terms of an Agreement and Plan of Merger
dated September 28, 2000, in which the Registrant agreed to assume certain
outstanding options of GlobalCenter under the GlobalCenter Management Stock
Plan and the Global Crossing Ltd. 1998 Stock Incentive Plan. GlobalCenter
was, prior to completion of the merger, a wholly owned indirect subsidiary
of Global Crossing Ltd.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
<PAGE>
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Clara, State of California, on this 12th day of
January, 2001.
EXODUS COMMUNICATIONS, INC.
By: /s/ R. Marshall Case
----------------------------------------------
R. Marshall Case
Executive Vice President, Finance and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Ellen M. Hancock and R. Marshall Case,
and each of them, his or her true and lawful attorneys-in-fact and agents with
full power of substitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments (including
post- effective amendments) to this Registration Statement on Form S-8, and to
file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in- fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents or any of them, or his, her or their substitute or
substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title
<S> <C> <C>
/s/ Ellen M. Hancock President, Chief Executive Officer and Chairman of January 12, 2001
--------------------------------- the Board of Directors
Ellen M. Hancock
Principal Financial Officer and January 12, 2001
Principal Accounting Officer:
/s/ R. Marshall Case Executive Vice President, Finance and Chief Financial January 12, 2001
--------------------------------- Officer
R. Marshall Case
Additional Directors: January 12, 2001
/s/ Mark Dubovoy Director January 12, 2001
---------------------------------
Mark Dubovoy
/s/ John R. Dougery Director January 12, 2001
---------------------------------
John R. Dougery
/s/ Max D. Hopper Director January 12, 2001
---------------------------------
Max D. Hopper
/s/ R. Daniel C. Lynch Director January 12, 2001
---------------------------------
Daniel C. Lynch
</TABLE>
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<TABLE>
<S> <C> <C>
Director _________, 2001
_________________________________
Thadeus J. Mocarski
/s/ Naomi O. Seligman Director January 12, 2001
---------------------------------
Naomi O. Seligman
/s/ L. William Krause Director January 12, 2001
---------------------------------
L. William Krause
/s/ Dirk A. Stuurop Director January 12, 2001
---------------------------------
Dirk A. Stuurop
Director __________, 2001
_________________________________
Laura D'Andrea Tyson, Ph.D.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
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<S> <C>
4.01 Registrant's Restated Certificate of Incorporation, as amended
(incorporated herein by reference to Exhibit 4.01 of the Registrant's
Registration Statement on Form S-8 filed with the Commission on July
19, 1999).
4.02 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 herein by
reference to Exhibit 3.02 of the Registrant's Registration Statement on
Form 8-A filed with the Commission on January 29, 1999).
4.03 Registrant's Bylaws (incorporated herein by reference to Exhibit 3.06
of the Registrant's Registration Statement on Form S-1, Registration
No. 333-44469, declared effective by the Commission on March 18, 1998.)
4.04 Rights Agreement dated January 27, 1999 between Registrant and
BankBoston, N.A., as Rights Agent (incorporated herein by reference to
Exhibit 4.04 of the Registrant's Registration Statement on Form 8-A
filed with the Commission on January 29, 1999).
4.05 Amendment to Rights Agreement dated October 20, 1999 between Registrant
and BankBoston, N.A., as Rights Agent (incorporated herein by reference
to Exhibit 4.05 of the Registrant's Amended Registration Statement on
Form 8-A filed with the Commission on November 29, 1999).
4.06 Amendment to Rights Agreement dated January 10, 2001 between Registrant
and BankBoston, N.A., as Rights Agent (incorporated herein by reference
to Exhibit 4.05 of the Registrant's Amended Registration Statement on
Form 8-A filed with the Commission on January 10, 2001).
4.07 GlobalCenter Management Stock Plan and related form of Stock Option
Agreement.
4.08 Global Crossing Ltd. 1998 Stock Incentive Plan and related form of
Stock Option Agreement.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of KPMG LLP, independent auditors.
24.01 Power of Attorney (see signature page of Form S-8)
</TABLE>
