EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 16, 2001, by
and between SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Company"), REUTERS HOLDINGS SWITZERLAND SA, a societe anonyme organized under
the laws of Switzerland ("Reuters").
W I T N E S S E T H:
WHEREAS, Reuters and Savvis are parties to a Securities
Purchase Agreement, dated as of May 16, 2001 (the "Purchase Agreement"),
pursuant to which Savvis desires to sell to Reuters, its successors and
permitted assigns up to $45,000,000 aggregate principal amount of 12%
Convertible Senior Notes of Savvis convertible into a number of shares of common
stock or convertible preferred stock determined in accordance with Section 15
thereof (the "Savvis Common Shares");
WHEREAS, in order to induce Reuters to enter into the Purchase
Agreement and consummate the transactions contemplated thereby, Savvis has
agreed to grant Reuters certain registration rights with respect to the Savvis
Common Shares as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings set forth below:
"Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934 or
any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Restricted Stock" means, at any time, the Savvis Common
Shares and any shares of Savvis common stock issuable upon or issuable
with respect to the Savvis Common Shares by way of stock dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise, in each case only so long as such shares have not been sold
to the public pursuant to an effective registration statement under, or
pursuant to Rule 144 under, the Securities Act.
"Securities Act" means the Securities Act of 1933 (or any
successor federal statute) and the rules and regulations of the
Commission thereunder, as the same shall be in effect at the time.
"Transfer" means, with respect to any Restricted Stock, the
sale, transfer, assignment, pledge, encumbrance, distribution or other
disposition of such securities.
SECTION 2. Transfers of Restricted Stock.
(a) Notice of Transfer. If Reuters shall Transfer any shares of
Restricted Stock, notice of which Transfer is not otherwise required to be
delivered to Savvis hereunder, then within three days following the consummation
of such Transfer, Reuters shall deliver notice thereof to Savvis.
(b) Securities Law Compliance. Reuters agrees that it will not effect
any Transfer of any shares of Restricted Stock unless such Transfer is made
pursuant to an effective registration statement under the Securities Act or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act (and, in either case, in
compliance with all applicable state securities laws). Savvis agrees, and
Reuters understands and consents, that Savvis will not cause or permit the
Transfer of any shares of Restricted Stock to be made on its books (or on any
register of securities maintained on its behalf) unless the Transfer is
permitted by, and has been made in accordance with, (x) the terms of this
Agreement and (y) all applicable federal and state securities laws. Reuters
agrees that in connection with any Transfer of Restricted Stock that is not made
pursuant to a registered public offering, Savvis may request an opinion of legal
counsel reasonably acceptable to Savvis (it being agreed that Weil, Gotshal &
Xxxxxx LLP shall be satisfactory) stating that such transaction is exempt from
registration under all applicable laws; provided, however, that no such opinion
shall be required in the case of a transfer by Reuters to its affiliates or, if
any such entity is a partnership or limited liability company, a transfer by
Reuters or its affiliates to its partners or members.
(c) Securities Act Legend For Certificates. From and after the date
hereof (and until such time as such securities have been sold to the public
pursuant to an effective registration statement under the Securities Act or
pursuant to Rule 144 or the holder of such securities shall have requested the
issuance of new certificates in writing and delivered to Savvis an opinion of
legal counsel reasonably acceptable to Savvis (it being agreed that Weil,
Gotshal & Xxxxxx LLP shall be satisfactory), all certificates representing
shares of Restricted Stock that are held by Reuters shall bear a legend which
shall state the following:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR ANY APPLICABLE STATE
LAW, AND NO INTEREST HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
DISTRIBUTED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER SAID ACT
AND LAWS OR (B) SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION."
SECTION 3. Registration Rights.
(a) Demand Registration Rights. Subject to paragraph (j) below, if
Savvis shall at any time be requested by Reuters, in a writing that states the
number of shares of Restricted Stock to be sold and the intended method of
disposition thereof (each such written request, a "Demand Notice"), to effect a
registration under the Securities Act of all or any portion of the Restricted
Stock then held by such requesting Reuters, Savvis shall use its reasonable best
efforts
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to register under the Securities Act (each such registration, a "Demand
Registration"), for public sale in accordance with the method of disposition
specified in such Demand Notice, the number of shares of Restricted Stock
specified in such Demand Notice. Savvis shall not be obligated pursuant to this
paragraph (a) to file and cause to become effective more than two Demand
Registrations.
(b) Additional Short-Form Registration Rights. If Savvis becomes
eligible to use Form S-3 or a successor form, Savvis shall use its reasonable
best efforts to continue to qualify at all times for registration on Form S-3 or
such successor form. Subject to paragraph (j) below, if (x) Savvis is eligible
to register shares of Savvis Common Stock on Form S-3 or a successor form and
(y) it is requested by Reuters, in a writing that states the number of shares of
Restricted Stock to be sold and the intended method of disposition thereof (each
such written request, a "Short Form Registration Notice"), to effect a
registration on Form S-3 or such successor form (a "Short Form Registration") of
all or any portion of the Restricted Stock then held by Reuters , Savvis shall
use its reasonable best efforts to register on Form S-3 or such successor form,
for public sale in accordance with the method of disposition specified in such
Short Form Registration Notice, the number of shares of Restricted Stock
specified therein within 30 days); provided, Reuters shall not have the right to
request a Short Form Registration unless the proposed aggregate net proceeds
(which shall be specified in the Short Form Registration Request delivered in
connection therewith) exceeds $5,000,000.
(c) Certain Provisions Relating to Required Registrations.
Notwithstanding anything to the contrary contained in this Agreement, Savvis
shall not be obligated to effect any registration under paragraph (a) or (b)
above except in accordance with the following provisions:
(i) the obligations of Savvis under paragraph (a) or (b) above, as
the case may be, to effect a registration shall be deemed satisfied only
when a registration statement covering all of the shares of Restricted
Stock specified in the applicable Demand Notice or Short Form Registration
Notice, as the case may be, for sale in accordance with the intended
method of disposition specified by Reuters, shall have become effective
and, if such method of disposition is a firm commitment underwritten
public offering, all such shares of Restricted Stock shall have been sold
pursuant thereto;
(ii) so long as Savvis has provided written notice of a prior
registration statement to Reuters in compliance with paragraph (d) below,
Savvis shall not be obligated under paragraph (a) or (b) above to file and
cause to become effective any registration statement so long as such prior
registration statement (other than a registration statement on Form S-4 or
Form S-8 promulgated under the Securities Act (or any successor forms
thereto) or any other form not available for registering the Restricted
Stock for sale to the public) pursuant to which shares of common stock of
Savvis are to be (or were to be) sold to the public was filed prior to the
delivery of the applicable Demand Notice or Short Form Registration
Notice, as the case may be (and such prior registration statement has not
been withdrawn); provided, Savvis shall not be permitted to delay a
requested registration under paragraph (a) or (b) above in reliance on
this paragraph (c)(ii) more than 180 days following the effective date of
such prior registration statement;
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(iii) if the proposed method of disposition specified by Reuters
shall be an underwritten public offering, the number of shares of
Restricted Stock to be included in such an offering may be reduced if and
to the extent that, in the good faith opinion of the managing underwriter
of such offering, inclusion of all shares would adversely affect the
marketing (including, without limitation, the offering price) of the
Restricted Stock to be sold;
(iv) in the event that the proposed method of disposition specified
by Reuters shall be an underwritten public offering, Reuters shall choose
the managing underwriter (which shall be a nationally recognized
investment banking firm reasonably acceptable to Savvis;
(v) Savvis shall be entitled to include in any registration
referred to in paragraph (a) or (b) above, as the case may be, for sale
in accordance with the method of disposition specified by Reuters,
shares of common stock of Savvis to be sold by Savvis for its own
account, except as and to the extent that, in the opinion of the
managing underwriter of such offering (if such method of disposition
shall be an underwritten public offering), such inclusion would
adversely affect the marketing (including, without limitation, the
offering price) of the Restricted Stock to be sold;
(vi) except as provided in paragraph (c)(v) above, Savvis will not
effect any other registration of its common stock, whether for its own
account or that of other holder(s) of common stock of Savvis, from the
date of receipt of a Demand Notice or the date of receipt of a Short Form
Registration Notice, as the case may be, until the completion of the
period of distribution of the registration contemplated thereby;
(vii) if, while a registration is pending, Savvis determines in good
faith that the filing of a registration statement would require the
disclosure of a material transaction or another set of material facts and
such disclosure would either have a material adverse effect on such
material transaction or Savvis and its subsidiaries (taken as a whole),
then Savvis shall not be required to effect a registration pursuant to
paragraph (a) or (b) above, as the case may be, until the earlier of (A)
the date upon which such material information is otherwise disclosed to
the public or ceases to be material and (B) 90 days after Savvis makes
such good faith determination; provided, Savvis shall not be permitted to
delay a requested registration under paragraph (a) or (b) above in
reliance on this paragraph (c)(viii) more than twice or for more than an
aggregate of 90 days in any consecutive twelve-month period.
(d) Piggyback Registration Rights. If at any time Savvis proposes to
register any of its common stock under the Securities Act for sale to the
public, whether for its own account or for the account of other security holders
or both (other than a registration on Form S-4 or Form S-8 promulgated under the
Securities Act (or any successor forms thereto) or any other form not available
for registering the Restricted Stock for sale to the public), it will give
written notice (each such notice a "Piggyback Notice") at such time to Reuters
of its intention to do so. Subject to paragraph (j) below, upon the written
request of Reuters, given within 30 days after
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receipt by such holder of the Piggyback Notice, to register any of its
Restricted Stock (which request shall state the amount of Restricted Stock to be
so registered and the intended method of disposition thereof), Savvis will use
its reasonable best efforts to cause the Restricted Stock, as to which
registration shall have been so requested, to be included in the securities to
be covered by the registration statement proposed to be filed by Savvis, all to
the extent requisite to permit the sale or other disposition by Reuters (in
accordance with its written request) of such Restricted Stock so registered;
provided, nothing herein shall prevent Savvis from abandoning or delaying such
registration at any time. In the event that any registration referred to in this
paragraph (d) shall be, in whole or in part, an underwritten public offering of
common stock of Savvis, any request by Reuters pursuant to this paragraph (d) to
register Restricted Stock shall specify either that (i) such Restricted Stock is
to be included in the underwriting on the same terms and conditions as the
shares of Savvis common stock otherwise being sold through underwriters under
such registration or (ii) such Restricted Stock is to be sold in the open market
without any underwriting, on terms and conditions comparable to those normally
applicable to offerings of common stock in reasonably similar circumstances. The
number of shares of Restricted Stock to be included in such an underwritten
offering may be reduced (pro rata among all requesting stockholders based on the
number of shares of common stock of Savvis so requested to be registered) if,
and to the extent that the managing underwriter of such offering shall be of the
good faith opinion that, such inclusion would adversely affect the marketing
(including, without limitation, the offering price) of the securities to be sold
by Savvis therein, or by the other security holders for whose benefit the
registration statements has been filed.
(e) Holdback Agreement. Notwithstanding anything to the contrary
contained in this Agreement, (i) if there is a firm commitment underwritten
public offering of securities of Savvis pursuant to a registration covering
Restricted Stock and Reuters does not elect to sell its Restricted Stock to the
underwriters of Savvis's securities in connection with such offering, Reuters
shall refrain from selling such Restricted Stock during the period of
distribution of Savvis's securities by such underwriters and the period in which
the underwriting syndicate participates in the after market; provided, Reuters
shall, in any event, be entitled to sell its Restricted Stock commencing on the
180th day after the effective date of such registration statement; and (ii) if
there is a firm commitment underwritten public offering of securities of Savvis
by Savvis, Reuters agrees that, except to the extent otherwise permitted to
participate in such offering pursuant to paragraph (d) above, upon the request
of the managing underwriter in such offering, Reuters shall not sell Savvis
Common Stock held by Reuters for a period of 180 days from the effective date of
the registration statement relating thereto.
(f) Certain Registration Procedures. If and whenever Savvis is
required by the provisions of this Section 3 to use its reasonable best efforts
to effect the registration of Restricted Stock under the Securities Act, Savvis
will, as expeditiously as possible:
(i) prepare (and afford counsel for the selling Reuters reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement with respect to such securities and use its
reasonable best efforts to cause such registration statement to become and
remain effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
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(ii) prepare (and afford counsel for the selling Reuters reasonable
opportunity to review and comment thereon) and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period of distribution
contemplated thereby (determined as hereinafter provided) and as comply
with the provisions of the Securities Act with respect to the disposition
of all Restricted Stock covered by such registration statement in
accordance with Reuters' intended method of disposition set forth in such
registration statement for such period;
(iii) furnish to Reuters and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including, without limitation, each preliminary prospectus) as such
persons may reasonably request in order to facilitate the public sale or
other disposition of the Restricted Stock covered by such registration
statement;
(iv) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the sellers of
Restricted Stock or, in the case of an underwritten public offering, the
managing underwriter, shall reasonably request; provided, Savvis will not
be required to (x) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph
(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any jurisdiction;
(v) immediately notify Reuters and each underwriter, at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and Reuters agrees to refrain from further using such prospectus
upon receipt of such notice;
(vi) use its reasonable best efforts (if the offering is
underwritten) to furnish, at the request of Reuters, on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to
such registration: (A) an opinion dated such date of counsel representing
Savvis for the purposes of such registration, addressed to the
underwriters and to Reuters, stating that such registration statement has
become effective under the Securities Act and that (1) to the best
knowledge of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act, (2)
the registration statement, the related prospectus, and each amendment or
supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel need
express no opinion as to financial statements, the notes thereto, and the
financial schedules and other financial and statistical data contained
therein) and (3) to such other effects as may reasonably be requested by
counsel for the underwriters or by
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Reuters or its counsel, and (B) a letter dated such date from the
independent public accountants retained by Savvis, addressed to the
underwriters, stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of Savvis included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including, without
limitation, information as to the period ending no more than five business
days prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters or such
selling Investor may reasonably request; and
(vii) make available for inspection by Reuters, any underwriter
participating in any distribution pursuant to such registration statement,
and any attorney, accountant or other agent retained by Reuters or
underwriter, all financial and other records, pertinent corporate
documents and properties of Savvis, and cause Savvis's officers, directors
and employees to supply all information reasonably requested by Reuters,
underwriter, attorney, accountant or agent in connection with such
registration statement and permit Reuters or such, attorney, accountant or
agent to participate in the preparation of such registration statement.
For purposes of paragraphs (f)(i) and (f)(ii) above (as well as paragraphs
(c)(vi) and(e) above), the "period of distribution" of Restricted Stock in a
firm commitment underwritten public offering shall be deemed to extend until
each underwriter has completed the distribution of all securities purchased by
it, and the period of distribution of Restricted Stock in any other registration
shall be deemed to extend until the sale of all Restricted Stock covered
thereby, but in either case, such period shall not extend beyond the 180th day
(or, in the case of paragraph (c)(vi) above, the 90th day) after the effective
date of the registration statement filed in connection therewith.
(g) Information From Reuters. In connection with each registration
hereunder, Reuters will furnish to Savvis in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
(h) Underwriting Agreement. In connection with any registration
pursuant to this Section 3 that covers an underwritten public offering, Savvis
and Reuters each agree to enter into a written agreement with the managing
underwriter selected in the manner herein provided in such form and containing
such provisions as are customary in the securities business for such an
arrangement between major underwriters, selling stockholders and companies of
Savvis' size and investment stature; provided, (i) such agreement shall not
contain any such provision applicable to Savvis which is inconsistent with the
provisions hereof and (ii) the time and place of the closing under said
agreement shall be as mutually agreed upon among Savvis such managing
underwriter and Reuters.
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(i) Expenses. Savvis will pay all Registration Expenses incurred in
complying with Section 3 of this Agreement. All Selling Expenses incurred in
connection with any registered offering of securities that, pursuant to this
Section 3, includes Restricted Stock, shall be borne by the participating
sellers in proportion to the number of shares sold by each, or by such persons
other than Savvis (except to the extent Savvis shall be a seller) as they may
agree. All expenses incident to performance of or compliance by Savvis with
Section 3 hereof, including, without limitation, all Commission, stock exchange
or National Association of Securities Dealers, Inc. ("NASD") registration and
filing fees (including, without limitation, fees and expenses incurred in
connection with the listing of the common stock of Savvis on any securities
exchange or exchanges), printing, distribution and related expenses, fees and
disbursements of counsel and independent public accountants for Savvis, all fees
and expenses incurred in connection with compliance with state securities or
blue sky laws and the rules of the NASD or any securities exchange, transfer
taxes and fees of transfer agents and registrars, but excluding any Selling
Expenses, are herein called "Registration Expenses". All underwriting discounts
and selling commissions applicable to the sale of Restricted Stock are herein
called "Selling Expenses".
(j) Availability of Rule 144(k). Reuters agrees that during any
period in which Reuters is eligible to sell all of its shares of Restricted
Stock pursuant to Rule 144(k), Reuters shall not be entitled to invoke or
otherwise participate with respect to the registration rights granted pursuant
to paragraphs (a), (b) and (d) above.
SECTION 4. Indemnification Rights and Obligations In Respect of
Registered Offerings of Restricted Stock.
(a) Savvis Indemnification of Reuters. In the event of a registration
of any of the Restricted Stock under the Securities Act pursuant to Section 3 of
this Agreement, Savvis will indemnify and hold harmless each seller of
Restricted Stock thereunder and each other person, if any, who controls such
seller within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, (or actions in respect thereof) to
which such seller or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such Restricted Stock was registered under the Securities
Act, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each such seller and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, Savvis
will not be liable in any such case if and to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by such seller or such controlling person
in writing specifically for use in such registration statement or prospectus.
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(b) Reuters' Indemnification of Savvis and the Other Selling
Stockholders. In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 3 of this Agreement, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify and
hold harmless Savvis and each person, if any, who controls Savvis within the
meaning of the Securities Act, each officer of Savvis who signs the registration
statement, each director of Savvis, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, and each
other seller of Restricted Stock and each person who controls any such other
seller of Restricted Stock, against all losses, claims, damages or liabilities,
joint or several, (or actions in respect thereof) to which Savvis or such
officer or director or underwriter or other seller or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse Savvis and each such officer,
director, underwriter, other seller of Restricted Stock and controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, such seller will be liable hereunder in any such case if and only to
the extent that any such loss, claim, damage, liability or action arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to Savvis by such
seller specifically for use in such registration statement or prospectus;
provided, further, the liability of each seller hereunder shall be limited to
the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not to exceed the proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Stock covered by such registration statement.
(c) Indemnification Procedures. Promptly after receipt by an
indemnified party hereunder of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party other than under this
Section 4. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 4 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may
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be reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred. Notwithstanding the foregoing, any indemnified
party shall have the right to retain its own counsel in any such action, but the
fees and disbursements of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party shall have failed to retain
counsel for the indemnified person as aforesaid or (ii) the indemnifying party
and such indemnified party shall have mutually agreed to the retention of such
counsel. It is understood that the indemnifying party shall not, in connection
with any action or related actions in the same jurisdiction, be liable for the
fees and disbursements of more than one separate firm qualified in such
jurisdiction to act as counsel for the indemnified party. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. The indemnification of underwriters provided for in this
Section 4 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of Restricted Stock in such underwriting shall at
the sellers' request be modified to conform to such terms and conditions.
(d) Contribution. If the indemnification provided for in paragraphs
(a) and (b) of this Section 4 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of Savvis, on the one hand, and the
underwriters and the sellers of such Restricted Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including, without limitation, the failure to give any notice
under paragraph (c) above. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by Savvis, on the one hand, or the
underwriters and the sellers of such Restricted Stock, on the other, and to the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Savvis and each of you agree that
it would not be just and equitable if contributions pursuant to this paragraph
were determined by pro rata allocation (even if all of the sellers of such
Restricted Stock were treated as one entity for such purpose) or by any other
method of allocation which did not take account of the equitable considerations
referred to above in this paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
action in respect thereof, referred to above in this paragraph, shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such Restricted
Stock shall not be required to contribute any amount in excess of the amount, if
any, by which the total price at which the
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Restricted Stock sold by each of them was offered to the public exceeds the
amount of any damages which they would have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission. No person guilty
of fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
SECTION 5. Rule 144. Savvis has filed and agrees with the Reuters
that from and after the date hereof it shall continue to file any and all
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, or, if
Savvis is not required to file any such reports, it shall, upon the written
request of Reuters, make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the Securities Act. Upon the written
request of Reuters, Savvis shall promptly furnish to Reuters a written statement
by Savvis as to its compliance with the reporting requirements set forth in this
Section 5.
SECTION 6. Duration of Agreement. This Agreement shall survive so
long as Reuters owns Restricted Stock.
SECTION 7. Representations and Warranties. Each party hereto,
severally and not jointly, represents and warrants to the other parties hereto
as follows:
(i) such party has the corporate or partnership power and authority,
as the case may be, to execute and deliver this Agreement and to perform
its obligations hereunder. The execution, delivery and performance by
such party of this Agreement have been duly authorized by all requisite
corporate or partnership action, as the case may be, on the part of such
party and will not (i) violate any provision of law, any order of any
court or other agency of government, the charter and other organizational
documents of such party, or any provision of any indenture, agreement or
other instrument by which such party or any of such party's properties or
assets is bound; (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument; or (iii) result in the creation
or imposition of any lien, charge or encumbrance of any nature upon any
of the properties or assets of such party; and
(ii) this Agreement has been duly executed and delivered by such
party and constitutes a legal, valid and binding agreement of such party,
enforceable against such party in accordance with its terms, subject, as
to enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in effect
affecting the enforcement of creditors' rights generally and to general
principles of equity.
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SECTION 8. Miscellaneous.
(a) Additional Registration Rights. Without the consent of Reuters,
Savvis shall not grant any registration rights to any other person that are
senior to or inconsistent or conflict with the registration rights granted
hereunder.
(b) Headings. Headings of sections and paragraphs of this Agreement
are inserted for convenience of reference only and shall not affect the
interpretation or be deemed to constitute a part hereof.
(c) Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein shall,
for any reason, be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement.
(d) Benefits of Agreement. All covenants and agreements contained
herein by or on behalf of any of the parties hereto shall bind and inure solely
and exclusively to the benefit of the respective successors and permitted
assigns of the parties hereto. Except as expressly permitted hereby, each
party's rights and obligations under this Agreement shall not be subject to
assignment or delegation by any party hereto, and any attempted assignment or
delegation in violation hereof shall be null and void.
(e) Entire Agreement; Modification. This Agreement and the Purchase
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof. This Agreement may not be modified or amended except by a
writing signed by Savvis and the Reuters. Any waiver of any provision of this
Agreement must be in a writing signed by the party against whom enforcement of
such waiver is sought.
(f) Notices. Any notice or other communications required or permitted
hereunder shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by national overnight courier service, by first
class certified mail, postage prepaid, or by facsimile (followed by delivery by
overnight courier) addressed to such party at the address or facsimile number
set forth below:
(i) if to Savvis, to it at the address or facsimile number set forth
for such party on the signature page hereto: and
(ii) if to Reuters, at such address or facsimile number as may have
been furnished to the other parties hereto in writing by Reuters;
or, in any case, at such other address or facsimile number as shall have been
furnished in writing by such party to the other parties hereto. All such
notices, requests, consents and other communications shall be deemed to have
been received (1) in the case of personal or courier delivery, on the date of
such delivery, (2) in the case of mailing, on the fifth business day following
the date of such mailing and (3) in the case of facsimile, when received.
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(g) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(h) Changes in Common Stock of Savvis. If, and as often as, there are
any changes in the common stock of Savvis by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof as may be required so that the
rights and privileges granted hereby shall continue with respect to the
Restricted Stock as so changed.
(i) Specific Performance. Each party hereto agrees that a remedy at
law for any breach or threatened breach by such party of this Agreement would be
inadequate and therefore agrees that any other party hereto shall be entitled to
specific performance of this Agreement in addition to any other available rights
and remedies in case of any such breach or threatened breach.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
* * * * *
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed and delivered this Agreement as of the day and year first above
written.
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, General Counsel
Address: 00000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
REUTERS HOLDINGS SWITZERLAND SA
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
Address: c/o Reuters America Inc.
The Reuters Building
0 Xxxxx Xxxxxx -00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
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