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.
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
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Title: Vice President and General Counsel Title: Administrative Manager
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