EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 20, 2001, among
SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation ("SAVVIS"), WELSH,
CARSON, XXXXXXXX & XXXXX VIII, L.P., a Delaware limited partnership ("WCAS"),
WCAS MANAGEMENT CORPORATION ("WCAS MANAGEMENT"), and the several other persons
affiliated with WCAS listed on the signature pages hereto (the "WCAS PERSONS").
WCAS, WCAS Management, the WCAS Persons and their successors and permitted
assigns are hereinafter sometimes collectively called the "INVESTORS".
W I T N E S S E T H:
WHEREAS, WCAS and Bridge Information Systems, Inc., a Missouri
corporation ("BRIDGE") are parties to a Stock Purchase Agreement, dated as of
February 7, 2000 (the "FEBRUARY 2000 PURCHASE AGREEMENT"), pursuant to which
Bridge sold to WCAS 6,250,000 shares (the "FEBRUARY 2000 COMMON SHARES") of
Common Stock. $.01 par value ("SAVVIS COMMON STOCK"), of Savvis determined in
accordance with Section 1 thereof, on the terms and conditions set forth
therein;
WHEREAS, in order to induce WCAS to enter into the February 2000
Purchase Agreement and consummate the transactions contemplated thereby, Bridge
and Savvis granted to WCAS certain registration rights with respect to the
February 2000 Common Shares pursuant to the Registration Rights Agreement, dated
as of February 7, 2000 (the "ORIGINAL REGISTRATION RIGHTS AGREEMENT"), among
Savvis, WCAS and Bridge;
WHEREAS, the WCAS Persons and Savvis are parties to a Securities
Purchase Agreement, dated as of the date hereof (the "FEBRUARY 2001 PURCHASE
AGREEMENT"), pursuant to which Savvis desires to sell to the WCAS Persons, their
successors and permitted assigns up to $20,000,000 aggregate principal amount of
10% Convertible Senior Secured Notes of Savvis convertible into such number of
shares (the "FEBRUARY 2001 COMMON SHARES" and collectively with the February
2000 Common Shares, the "SAVVIS COMMON SHARES") of Common Stock determined
according to Sections 15 (and subject to adjustment according to Section 16) of
such notes;
WHEREAS, in order to induce the WCAS Persons to enter into the
February 2001 Purchase Agreement and consummate the transactions contemplated
thereby, Savvis has agreed to grant the WCAS Persons certain registration rights
with respect to all of the Savvis Common Shares; and
WHEREAS, the execution of this Agreement is not intended to amend,
modify, change, restate or terminate the Original Registration Rights Agreement
and all rights and obligations of the parties under the Original Registration
Rights Agreement will continue to be of force and effect;
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 any Investor 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, such Investor shall deliver notice thereof to Savvis.
(b) SECURITIES LAW COMPLIANCE. Each Investor 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 each
Investor 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. Each
Investor 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 Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol and Xxxxxxx Xxxx & Xxxxx LLP 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
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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.
(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 Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol and Xxxxxxx Xxxx & Xxxxx LLP shall be
satisfactory) to such effect) all certificates representing shares of Restricted
Stock that are held by any Investor 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 Investors holding a majority in
interest of the Restricted Stock, 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 Investors, Savvis shall immediately notify in writing (each such
notice, a "DEMAND FURTHER NOTICE") each other Investor (other than the
requesting Investors) 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). 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 any Investor, 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
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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 Further Notice, the number of shares of Restricted Stock
specified in such Short Form Further 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 Investor) within 30 days after receipt by such other Investors of a
Savvis Short Form Registration Notice); provided, no Investor or group of
Investors shall have the right to request a Short Form Registration unless the
proposed aggregate net proceeds to the requesting Investor(s) (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 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 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;
(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) if and to the extent that, in
the good faith opinion of the managing underwriter of such offering,
inclusion of all shares would
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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, Savvis
shall choose the managing underwriter (which shall be a nationally
recognized investment banking firm reasonably acceptable to the (A) the
requesting Investors and (B) Investors holding a majority of the Restricted
Stock being sold in such offering);
(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 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 any Investor (other than the requesting Investors) 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 other 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
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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. Subject to paragraph
(j) below, 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 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 (pro rata among the requesting Investors
based upon the number of shares of Restricted Stock so requested to be
registered or pro rata among all the requesting stockholders based upon the
number of shares of common stock of Savvis so requested to be registered if
stockholders other than Investors also request to be included) 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 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.
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(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);
(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 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 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
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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 or by such selling Investor 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 each 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 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, 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.
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(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 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, except in the case of a registration pursuant to
paragraph (d) above, Investors holding a majority of the Restricted Stock being
sold in such offering.
(i) EXPENSES. The Original Registration Rights Agreement will govern
the payment of all Registration Expenses incurred in connection with any
registration of the February 2000 Common Shares. Savvis will pay all
Registration Expenses incurred in complying with Section 3 of this Agreement to
the extent such expenses relate to the registration of February 2001 Common
Shares. 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(D). Each Investor agrees that during any
period in which such Investor is eligible to sell all of its shares of
Restricted Stock pursuant to Rule 144(k), such Investor 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 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
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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 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
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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 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
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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 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
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. DURATION OF AGREEMENT. This Agreement shall survive so long
as any Investor 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
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(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 8. MISCELLANEOUS.
(a) ADDITIONAL REGISTRATION RIGHTS. Without the consent of Investors
holding at least a majority of the shares of Restricted Stock then outstanding,
Savvis shall not grant any registration rights to any other person that are
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, the Original
Registration Rights 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 Investors holding at least a majority of the shares of Restricted Stock
then outstanding. 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 or any WCAS Person, to it at the address or facsimile
number set forth for such party on the signature page hereto: and
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(ii) if to any subsequent Investor, to such Investor at such address
or facsimile number as may have been furnished to the other parties hereto
in writing by such holder;
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.
(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________________________________
Name:
Title:
Address: 00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
WELSH, CARSON, XXXXXXXX
& XXXXX VIII, L.P.
By WCAS VIII Associates LLC,
General Partner
By________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxx
Facsimile: (000) 000-0000
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Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
D. Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxx
Xxxxxxxx X. Rather
By:________________________________
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
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WCAS MANAGEMENT CORPORATION
By________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
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