Exhibit 19
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INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT, dated as of March 6, 2002, among
SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation ("Savvis" or the
"Company"), WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P., a Delaware limited
partnership ("WCAS"), and the several other entities and persons affiliated with
WCAS listed on the signature pages hereto (the "WCAS Persons" and collectively
with WCAS, the "WCAS Investors"), Reuters Holdings Switzerland SA, a societe
anonyme organized under the laws of Switzerland ("Reuters"), the other
investor-parties that hold Preferred Stock (as defined below) or Warrants (as
defined below) that are listed under "Other Investors" on the signature pages
hereto or become a party to this Agreement in accordance with Section 10
(collectively, the "Other Investors") and any Permitted Transferees (as defined
below) that become a party to this Agreement in accordance with Section 12(d)
(together with the Other Investors, the WCAS Investors and Reuters, the
"Investors").
W I T N E S S E T H:
WHEREAS, the WCAS VIII is the record and beneficial holder of
an aggregate of 6,250,000 shares (the "February 2000 Common Shares") of Common
Stock, par value $.01 per share ("Common Stock"), of Savvis;
WHEREAS, Bridge Information Systems, Inc. and Savvis granted
to WCAS certain registration rights pursuant to the Registration Rights
Agreement, dated as of February 7, 2000 (the "February 2000 Rights Agreement")
and Savvis granted to (i) the WCAS Investors certain registration rights
pursuant to the Registration Rights Agreement, dated as of February 20, 2001
(the "February 2001 Rights Agreement") and (ii) Reuters certain registration
rights pursuant to the Registration Rights Agreement, dated as of May 16, 2001
(together with the February 2000 Rights Agreement and the February 2001 Rights
Agreement, the "Existing Rights Agreements");
WHEREAS, the WCAS Investors, certain Other Investors and
Savvis are parties to a Securities Purchase Agreement, dated as of the date
hereof (the "Purchase Agreement"), pursuant to which Savvis desires to sell to
the WCAS Investors and such Other Investors, their successors and permitted
assigns shares of Series A Convertible Redeemable Preferred Stock, par value,
$.01 per share (the "Preferred Stock"), convertible into such number of shares
of Common Stock determined according to Article 4 of the Certificate of
Designations relating to the Preferred Stock (the "Covered Converted Common
Shares");
WHEREAS, in connection with the transactions contemplated by
the Purchase Agreement, Nortel Networks Inc. ("Nortel Networks") and General
Electric Capital Corporation ("GECC") have entered into agreements relating to
their respective financing arrangements with the Company and, in connection
therewith, the Company has issued to each of GECC and Nortel Networks warrants
to purchase Common Stock (the "Warrants");
WHEREAS, in order to induce the WCAS Investors and such Other
Investors to enter into the Purchase Agreement, to induce GECC and Nortel
Networks to enter into the amended financing arrangements, and to consummate the
transactions contemplated by the foregoing, the WCAS Investors and Reuters have
agreed to terminate the Existing Rights Agreements and Savvis has agreed to
grant the Investors certain registration rights pursuant to this Agreement with
respect to the Covered Common Shares and certain other shares of Common Stock
from time to time held by the Investors; and
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:
"Affiliate" means WCAS, any other WCAS Investor or any
investment limited partnership affiliated therewith, any general
partner or principal of WCAS, any such other WCAS Investor or any such
investment limited partnership.
"Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Covered Common Shares" means the Covered Converted Common
Shares and the Covered Warrant Common Shares.
"Covered Warrant Common Shares" means the shares of Common
Stock into which the Warrants are exercisable and any other shares of
Common Stock distributable on, with respect to, or in substitution of
such shares.
"Effective Date" means the Closing Date (as defined in the
Purchase Agreement).
"Eligible Investor" means at any time (a) WCAS or its
Permitted Transferees, Reuters or any Other Investor (other than Nortel
Networks or GECC), so long as such Person owns Preferred Stock
representing at least ten percent (10%) of the then outstanding voting
power of Savvis and (b) WCAS (together with its Affiliates), Reuters or
any Other Investor (other than Nortel Networks or GECC), so long as
each such Person owns Savvis Stock representing at least five percent
(5%) of the outstanding Savvis voting power.
"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.
"New Capital Stock" shall mean any Savvis Stock or securities
exchangeable, convertible or exercisable into shares of Savvis Stock
whether or not authorized on the date hereof; provided, however, that
"New Capital Stock" shall not include the following: (i) shares of
Savvis Stock outstanding on the date hereof; (ii) shares of Preferred
Stock (whether or not issued pursuant to the Purchase Agreement); (iii)
Covered Common Shares; (iv) capital stock issued to officers, directors
or employees of, or consultants to, Savvis pursuant to a stock grant,
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option plan or purchase plan or other stock incentive program,
including without limitation sales of shares to such Persons pursuant
to restricted stock purchase agreements approved by the Board of
Directors of the Savvis; (v) capital stock issued as a dividend or
distribution on capital stock or in connection with any stock split,
stock dividend or similar transaction; (vi) capital stock issued in a
firm-commitment underwritten public offering pursuant to a registration
statement filed under the Securities Act; and (vii) securities issued
pursuant to business combination transactions or the acquisition of
technology or other assets of other businesses approved by the Board of
Directors.
"Permitted Transferee" has the meaning ascribed to such term
in Section 12(d).
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
issuer, interest, trust or unincorporated organization (including any
subdivision or ongoing business of any such entity or substantially all
of the assets of any such entity, subdivision or business).
"Pro Rata Share" shall, with respect to any Eligible Investor,
mean the percentage obtained when (i) the sum of the number of Covered
Converted Common Shares held by such Eligible Investor plus the number
of shares of Common Stock issuable upon exercise of options or warrants
to purchase Common Stock or other Savvis Stock convertible into Common
Stock held by such Eligible Investor plus the number of shares of
Common Stock then held by such Eligible Investor is divided by (ii) the
sum of the total number of shares of Common Stock then outstanding plus
the total number of Covered Converted Common Shares and other
securities convertible into or exchangeable or exercisable for Common
Stock then outstanding.
"Restricted Stock" means, at any time, (i) the Covered Common
Shares and any shares of Common Stock issuable upon or issuable with
respect to the Covered 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; and (ii) any other shares of Common
Stock held by an Investor who is an affiliate (as such term if defined
in Rule 12b-2 promulgated under the Exchange Act) of Savvis.
"Savvis Stock" means any shares of capital stock of Savvis.
"Savvis Voting Stock" means shares of Savvis Stock having the
power to vote generally for the election of directors of the Company.
"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 Savvis Stock, the sale,
transfer, assignment, pledge, encumbrance, distribution or other
disposition of such securities.
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SECTION 2. Shares; Restrictions on Transfer; Legends. (a) Each
Investor owns or will own as of the Effective Date, the respective number of
shares of Common Stock and Preferred Stock and the Covered Warrant Common Shares
set forth opposite such Investor's name in Annex I.
(b) If any Investor shall Transfer any shares of Preferred
Stock, then within three days following the consummation of such Transfer, such
Investor shall deliver notice thereof to Savvis.
(c) Each Investor agrees that it will not effect any Transfer
of any shares of Restricted Stock unless such Transfer is (i) not prohibited
pursuant to the Certificate of Designations relating to the Preferred Stock and
(ii) 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).
(d) Savvis agrees, and each Investor understands and consents,
that Savvis will not cause or permit the Transfer of any shares of Preferred
Stock or 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. Each Investor agrees that in
connection with any Transfer of Preferred Stock or 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 Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol shall be satisfactory) for the transferring
Investor 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 any Investor to its affiliates or, if any such entity
is a partnership or limited liability company, a transfer by any Investor or its
affiliates to its partners or members. Any Transfer of Preferred Stock or
Restricted Stock other than in accordance with this Section will be void.
(e) 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 Reboul, MacMurray, Xxxxxx, Xxxxxxx &
Kristol shall be satisfactory) to such effect) all certificates representing
shares of Preferred Stock or Restricted Stock that are held by any Investor
shall bear legends 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.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE TERMS AND CONDITIONS OF AN INVESTOR RIGHTS AGREEMENT AMONG THE
ISSUER AND THE OTHER PARTIES THERETO. COPIES OF SUCH AGREEMENT MAY BE
OBTAINTED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE ISSUER."
SECTION 3. Registration Rights.
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(a) Demand Registration Rights. If Savvis shall at any time
after the Effective Date, be requested by WCAS, Reuters, any Other Investor
constituting an Eligible Investor or the holders of at least 25% of the Covered
Warrant Common Shares 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
person, Savvis shall immediately notify in writing (each such notice, a "Demand
Further Notice") each other Investor (other than the requesting Investor) of
such proposed registration and shall use its reasonable best efforts 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 (plus the number of shares of Restricted Stock specified in any written
requests for registration of shares of Restricted Stock that are received from
other Investors (other than the requesting Investors) within 30 days after
receipt by such other Investors of a Demand Further Notice). Notwithstanding
anything to the contrary contained herein, Savvis shall not be obligated
pursuant to this paragraph (a) to file and cause to become effective (i) more
than two Demand Registrations in the aggregate requested by WCAS or its
Permitted Transferees, two Demand Registrations in the aggregate requested by
Reuters or its Permitted Transferees, two Demand Registrations in aggregate
requested by Other Investors constituting Eligible Investors, and one Demand
Registration by holders of the Covered Warrant Common Shares or (ii) any Demand
Registration with a proposed aggregate offering price of less than $25.0
million.
(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. If (x) Savvis is eligible to register shares of
Common Stock on Form S-3 or a successor form and (y) it is requested by WCAS or
any Other Investor or Other Investors, 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 such
requesting Investor, Savvis shall immediately notify in writing (each such
notice, a "Short Form Further Notice") each other Investor (other than the
requesting Investor) of such proposed registration and 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 in such
Short Form Registration Notice (plus the number of shares of Restricted Stock
specified in any written requests for registration of shares of Restricted Stock
that are received from other Investors (other than the requesting Investors)
within 30 days after receipt by such other Investors of a Short Form Further
Notice); provided, no Investor or group of Investors shall have the right to
request a Short Form Registration unless the proposed aggregate offering price
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(which shall be specified in the Short Form Registration Notice delivered in
connection therewith) is at least $10.0 million.
(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 the requesting
Investors, 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 each Investor 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 written notice was received by Investors 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;
(iii) if the proposed method of disposition specified by the
requesting Investors shall be an underwritten public offering, the
number of shares of Restricted Stock to be included in such an offering
may be reduced (pro rata among the Investors seeking to include
Restricted Stock in such offering based on the number of shares of
Restricted Stock so requested to be registered by such Investors, it
being understood that there will be no such reduction of shares of
Restricted Stock owned by Investors unless and until such reduction is
first applied against shares of Common Stock held by stockholders of
the Company who are not Investors and who, through other contractual
rights with the Company, determine to participate in any such Demand
Registration or Short Form Registration, and then applied to any shares
of Common Stock to be sold by the Company for its own account) 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 the requesting Investors shall be an underwritten public
offering, the requesting Investors holding a majority of the Restricted
Stock included in such offering shall choose the managing underwriter
(which shall be a nationally recognized investment banking firm
reasonably acceptable to the Company);
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(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 the
requesting Investors, shares of Common Stock 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 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, for an underwritten
public offering until the completion of the period of distribution of
the registration contemplated thereby (determined as hereinafter
provided);
(vii) if any Investor (other than the requesting Investor)
requests that some or all of such Investor's shares of Restricted Stock
be included in an offering initiated pursuant to paragraph (a) or (b)
above, and the registration is to be, in whole or in part, an
underwritten public offering of Common Stock, such request by such
Investor shall specify that such Investor's Restricted Stock is to be
included in the underwriting on the same terms and conditions as the
shares of Restricted Stock otherwise being sold through the
underwriter; and
(viii) 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 each
Investor of its intention to do so. Upon the written request of any Investor,
given within 30 days after 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 such Investor (in accordance with its written request) of such Restricted
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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 an
Investor 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
(x) if the stockholder or stockholders of Savvis requesting to have shares of
Restricted Stock included in a registration contemplated by this Section 3(d)
are Investors, pro rata among the requesting Investors based upon the number of
shares of Restricted Stock so requested to be registered or (y) if stockholders
of Savvis other than Investors also request to have their shares of Common Stock
included in a registration contemplated by this Section 3(d), pro rata among all
the requesting stockholders based upon 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 an Investor does not elect to sell his Restricted
Stock to the underwriters of Savvis's securities in connection with such
offering, such Investor shall refrain from selling such Restricted Stock during
the period of distribution (determined as hereinafter provided) of Savvis's
securities by such underwriters and the period in which the underwriting
syndicate participates in the after market; provided, such Investor 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,
each Investor 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, such Investor shall not sell
Savvis Common Stock held by such Investor for a period of 180 days from the
effective date of the registration statement relating thereto and such Investor
shall execute a lockup agreement in the form customarily used in such
transactions.
(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 Investors
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 Investors
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 to 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 the selling Investors'
intended method of disposition set forth in such registration statement
for such period;
(iii) furnish to each selling Investor 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 each selling Investor under such
registration statement 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 each Investor 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 any selling Investor, 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 such selling Investor, 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, and (B) a letter dated such date from the
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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 may reasonably request; and
(vii) make available for inspection by any selling Investor,
any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such selling Investor or its Permitted Transferee 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 any such selling Investor or its Permitted Transferee, underwriter,
attorney, accountant or agent in connection with such registration
statement and permit such selling Investor, 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 Selling Investors. In connection with
each registration hereunder, Investors selling Restricted Stock 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 Investors selling Restricted Stock 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 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, except in the case of a registration pursuant to
paragraph (d) above, WCAS, if participating in such offering.
(i) Expenses. Savvis will pay all Registration Expenses
incurred by it in complying with Section 3 of this Agreement. All Selling
Expenses incurred in connection with any registered offering of securities
pursuant to this Section 3, including Restricted Stock, shall be borne by the
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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
and the reasonable fees and expenses of one counsel for all selling
securityholders, 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".
SECTION 4. Indemnification Rights and Obligations In Respect
of Registered Offerings of Restricted Stock.
(a) Savvis Indemnification of Selling Investors. 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.
(b) Selling Investor 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
11
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 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
12
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
the Investors 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 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
Investors 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 any Investor, make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the Securities Act. Upon
13
the written request of any Investor, Savvis shall promptly furnish to such
Investor a written statement by Savvis as to its compliance with the reporting
requirements set forth in this Section 5.
SECTION 6. Nomination of Directors.
------------------------
(a) Each Eligible Investor (other than Reuters or its
transferees) shall have the right to nominate for election to the Board of
Directors that number of directors (each, a "Designated Director") determined in
accordance with the following formula: the total number of members of the Board
of Directors (which, as of the date of this Agreement is eight (8)) multiplied
by the percentage of the total voting power of all outstanding Savvis Voting
Stock represented by the Savvis Voting Stock owned by such Eligible Investor,
rounded down to the nearest whole number; provided that, in the event that WCAS
and its Affiliates collectively own of record Savvis Voting Stock representing
more than 50% of the voting power represented by the then validly issued and
outstanding Savvis Voting Stock, the number of Designated Directors such
Investors shall be able to appoint shall not be less than a number that is at
least half of the members of the Board; and provided further that each such
Eligible Investor will be entitled to nominate at least one director for
election to the Board in accordance with this Section 6(a) so long as such
Eligible Investor (and, solely in the case of WCAS, together with its
Affiliates) owns of record Savvis Voting Stock representing at least five
percent (5%) of the total voting power of all outstanding Savvis Voting Stock.
(b) In the event that any Investor ceases to be such an
Eligible Investor or otherwise ceases to own a sufficient number of shares of
Savvis Voting Stock to entitle it to nominate the number of directors it then
has on the Board of Directors, such Investor shall use its best efforts promptly
to cause the resignation of one or more of its Designated Director(s) from the
Board of Directors and, if such resignation is not obtained, to vote its shares
of Savvis Voting Stock in favor of the removal of one or more of its Designated
Director(s) from the Board of Directors, in each case so that the number of
Designated Directors, if any, of such Investor shall be consistent with such
Investor's rights under Section 6(a).
(c) The Investors and Savvis hereby further agree that in the
event a Designated Director shall cease to serve as a director of Savvis, the
vacancy resulting therefrom (including a vacancy on any committee of the Board
of Directors) will be filled promptly by the Board or the stockholders of
Savvis, as the case may be, in each case as provided in the Bylaws of the
Company, with a substitute Designated Director nominated pursuant to Section
6(d) below.
(d) The selection of a substitute Designated Director to fill
a vacancy on the Board of Directors shall be made as follows:
(1) in the event the vacancy has been created by the
resignation or removal of the Designated Director of an Eligible
Investor pursuant to Section 6(b), the substitute Designated Director
shall be selected by the remaining members of the Board of Directors,
or, if another Eligible Investor has replaced the Eligible Investor
whose Designated Director has resigned or been removed, then such other
Eligible Investor shall select the substitute Designated Director.
14
(2) in the event the vacancy has been created other than by
reason of the resignation or removal of the Designated Director of an
Eligible Investor pursuant to Section 6(b), the substitute Designated
Director shall be selected by the Eligible Investor who nominated the
director whose position is to be filled.
(e) Savvis agrees subject to fiduciary obligations to take all
actions necessary to cause the terms of Section 6(a) to be affected in
accordance with their terms.
(f) The provisions of this Section 6 shall continue in force
and effect until the earlier to occur of (i) the date on which no shares of
Preferred Stock are outstanding and (ii) the date on which there are no Eligible
Investors.
SECTION 7. Preemptive Rights.
-----------------
(a) Savvis hereby grants to each Eligible Investor a right
(the "Preemptive Right") to purchase all or any part of its Pro Rata Share of
any amount of New Capital Stock that Savvis may, from time to time, propose to
sell and issue.
(b) In the event that Savvis proposes to undertake an issuance
of New Capital Stock, it shall give each Eligible Investor written notice (the
"Preemptive Right Notice") of its intention, describing the type of New Capital
Stock, the price, and the material terms and conditions upon which Savvis
proposes to issue the same to any Person. Such Eligible Investor shall have 20
business days after issuance of the Preemptive Right Notice to agree to purchase
all or any portion of its Pro Rata Share of such amount of New Capital Stock at
the price and upon the terms specified in the notice (which terms shall be no
less favorable than those offered to any third party purchaser) by giving
written notice to Savvis and stating therein the quantity of New Capital Stock
to be purchased.
(c) In the event that any shares of New Capital Stock subject
to the Preemptive Right are not purchased by an Eligible Investor within the
period specified above, Savvis shall have 90 days thereafter to sell (or enter
into an agreement pursuant to which the sale of New Capital Stock that had been
subject to the Preemptive Right shall be closed, if at all, within 45 days from
the date of said agreement) the New Capital Stock with respect to which the
rights of all of the Eligible Investors were not exercised at a price and upon
terms and conditions, including manner of payment, no more favorable to the
purchasers thereof than specified in the Preemptive Right Notice. In the event
Savvis has not sold all offered New Capital Stock within such 90 day period (or
sold and issued New Capital Stock in accordance with the foregoing within 45
days from the date of such agreement) Savvis shall not thereafter issue or sell
any New Capital Stock, without first offering a portion of such New Capital
Stock to the Eligible Investors in the manner provided above in this Section 7.
(d) The provisions of this Section 7 shall continue in force
and effect until the earlier to occur of (i) the date on which no shares of
Preferred Stock are outstanding and (ii) the date on which there are no Eligible
Investors.
SECTION 8. Effectiveness. Notwithstanding anything herein to
the contrary, the rights and obligations of the Investors set forth in this
Agreement (other than Nortel Networks) shall not be effective until the
Effective Date. To the extent the Effective Date shall not have occurred prior
15
to March 31, 2002 or the Purchase Agreement shall have otherwise been
terminated, this Agreement shall be automatically terminated and of no further
force or effect with respect to all Investors other than Nortel Networks. This
Agreement shall be effective between the Company and Nortel Networks on the date
the Company issues a Warrant to Nortel Networks, which date shall then be
considered the "Effective Date."
SECTION 9. Duration of Agreement. Unless otherwise set forth
in this Agreement, the provisions of this Agreement shall survive so long as any
Investor owns Restricted Stock.
SECTION 10. Joinder. The Investors and the Company agree that
any Person who becomes a party to the Purchase Agreement in accordance with
Section 8.11 thereof will automatically become a party to this Agreement and for
all purposes be considered an "Other Investor" hereunder. In addition, upon the
express written consent of WCAS and the Company, any other holder of Preferred
Stock may become a party to this Agreement and be considered an "Other Investor"
hereunder to the extent such other holder agrees in writing to become a party to
this Agreement and to assume the rights and obligations of an Other Investor
hereunder.
SECTION 11. 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.
SECTION 12. Miscellaneous.
-------------
(a) Additional Registration Rights. Without the prior written
consent of WCAS, Reuters and each Other Investor (so long as such Person holds
any Restricted Stock representing 5% of the outstanding Savvis Voting Stock),
Savvis shall not grant any registration rights to any other person that are
inconsistent or conflict with the registration rights granted hereunder,
including, without limitation, rights to participate in a Demand Registration
which could result in reduction (on a pro rata or other basis) in the number of
16
shares of Common Stock held by WCAS or its Permitted Transferees, Reuters or any
Other Investor, as applicable, to be included in any underwritten offering made
in respect of such Demand Registration.
(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. Notwithstanding anything
to the contrary contained in this Agreement, each Investor will be entitled to
assign all or any portion of its rights and obligations under this Agreement to
a transferee of Restricted Stock or Preferred Stock (to the extent permitted or
not prohibited by Section 2) held by such Investor (each such transferee, a
"Permitted Transferee") which Permitted Transferee shall be treated as a party
to this Agreement with the same rights and obligations as such transferring
Investor; provided, however, that (i) any such Permitted Transferee shall agree
to be bound by this Agreement and (ii) the rights of Investors (other than
Nortel Networks and GECC) under Section 3(a) will not be transferable to or
exercisable by a Permitted Transferee unless such Permitted Transferee purchases
and continues to hold Restricted Stock representing at least five (5%) (on a
fully diluted basis) of the voting capital stock of Savvis.
(e) Entire Agreement; Termination of Existing Agreements. This
Agreement and the Purchase Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof. The parties hereto agree that
from and after the date hereof, each of the Existing Rights Agreements and any
other registration rights agreement to which any of the Investors and the
Company are a party, shall be terminated and of no further force or effect, with
neither Savvis nor any Investor retaining any rights or obligations pursuant to
such agreements. The parties acknowledge that this Agreement shall not terminate
or otherwise amend or change the side letter between Reuters and the Company,
dated May 16, 2001, relating to Board of Director observer rights and other
matters.
(f) Modification. This Agreement may not be modified or
amended except by a writing signed by Savvis, WCAS, Reuters and each Other
Investor (so long as such Person holds Restricted Stock representing 5% of the
outstanding Savvis Voting Stock); provided that this Agreement may not be so
amended in any manner that disproportionately adversely affects the rights or
obligations of any Investor unless the consent of such Investor is obtained in
writing prior to the effectiveness of such amendment. 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.
17
(g) 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 on the signature pages hereto 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.
(h) 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.
(i) 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.
(j) 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.
(k) Binding Effect. Anything herein to the contrary
notwithstanding, it is hereby expressly agreed and understood by each of the
parties hereto that this Agreement shall be a binding obligation of the Company
with regard to each Investor executing this Agreement, and a binding obligation
of each Investor executing this Agreement with regard to the Company, in each
case in accordance to with the terms hereof. The failure or refusal of any
Investor to execute this Agreement shall in no way negate, relieve, invalidate
or otherwise affect the rights and obligations of the Company and each Investor
executing this Agreement as set forth herein.
(l) 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.
* * * * *
18
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:
SAVVIS COMMUNICATIONS CORPORATION
a Delaware Corporation
By /s/ Xxxxx Xxxxx
----------------------
Name: Xxxxx Xxxxx
Title:
Address: 00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
19
WCAS INVESTORS:
WELSH, CARSON, XXXXXXXX
& XXXXX VIII, L.P.
By WCAS VIII Associates LLC,
General Partner
By: /s/ Xxxxxxxx X. Rather
----------------------------------
Name: Xxxxxxxx X. Rather
Title: Managing Member
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxx
Facsimile: (000) 000-0000
WELSH, CARSON, XXXXXXXX &
XXXXX VII, L.P.
By WCAS VII Partners L.P.,
General Partner
By: /s/ Xxxxxxxx X. Rather
----------------------------------
General Partner
WELSH, CARSON, XXXXXXXX &
XXXXX VI, L.P.
By WCAS VI Partners L.P.,
General Partner
By: /s/ Xxxxxxxx X. Rather
----------------------------------
Attorney-in-fact
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
20
WCAS MANAGEMENT CORPORATION
By:/s/ Xxxxxxxx X. Rather
------------------------------------------------
Xxxxxxxx X. Rather
Treasurer
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
XXX FBO Xxxxx X. Xxxxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
Estate of Xxxxxxx Xxxxxx
X. Xxxxx Xxxxxxx
Xxxxxx Xxxxx
XXX FBO Xxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxx
XXX FBO Xxxxxxxx X. Rather
Xxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxx Xxxxx
By: /s/ Xxxxxxxx X. Rather
----------------------------------------
Xxxxxxxx X. Rather
Individually and as Attorney-in-Fact
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
21
XXXXXX XXXXXXXX TRUST
By:
-----------------------------------------------
Name:
Title:
Address: x/x Xxxxx, Xxxxxx,
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
XXXXXXX XXXXXXXX TRUST
By:
-----------------------------------------------
Name:
Title:
Address: x/x Xxxxx, Xxxxxx,
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
XXXX XXXXXXXX TRUST
By:
-----------------------------------------------
Name:
Title:
Address: x/x Xxxxx, Xxxxxx,
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
22
[THIS PAGE INTENTIONALLY LEFT BLANK]
23
REUTERS:
REUTERS HOLDINGS SWITZERLAND SA
By: /s/ Xxxx Xxxx
---------------------
Name: Xxxx Xxxx
Title: Attorney-in-fact
Address: The Reuters Building
0 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
24
OTHER INVESTORS:
NORTEL NETWORKS INC.
By_______________________________
Name:
Title:
Address: GMS 991 15 A4D
000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx X. Day, Vice President,
Customer Finance, North America
Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
GENERAL ELECTRIC CAPITAL
CORPORATION
By_______________________________
Name:
Title:
Address: 00 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
25
[INSERT SIGNATURE BLOCKS FOR ANY OTHER
INVESTORS THAT HOLD PREFERRED STOCK AND
BECOME A PARTY TO THIS AGREEMENT]
26
ANNEX I
[TO COME]
27
