EXHIBIT 10.1
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated
as of September 18, 2002, is among SAVVIS COMMUNICATIONS CORPORATION, a Delaware
corporation (the "COMPANY"), WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P., a
Delaware limited partnership ("WCAS VIII"), and the other purchasers named on
Annex I hereto (together with WCAS VIII, the "PURCHASERS").
WHEREAS, the Board of Directors of the Company, at a meeting
held on February 26, 2002, authorized the Company to issue an additional
$45,000,000 in capital on terms no less favorable to the investors (including
conversion price) than those of the Series A Convertible Preferred Stock, par
value $.01 per share, of the Company (the "SERIES A PREFERRED STOCK");
WHEREAS, pursuant to the Securities Purchase Agreement, dated
as of March 6, 2002, among the Company, WCAS VIII and certain entities and
individuals affiliated with WCAS VIII and the Other Purchasers (as defined
therein) (the "MARCH PURCHASERS"), the Company agreed to use its reasonable best
efforts to sell by September 18, 2002 an additional 45,000 shares of Series A
Preferred Stock (the "ADDITIONAL SHARES") to any Person (as defined therein) or
Persons (acceptable to WCAS VIII) who offer to purchase such Additional Shares
at a price per share not less than the Purchase Price (as defined therein), and
otherwise on the terms and conditions not less favorable to the Company than
those pursuant to which shares of Series A Preferred Stock were issued to the
March Purchasers on March 18, 2002;
WHEREAS, the Purchasers have offered to purchase 22,600 shares
of Series A Preferred Stock at a purchase price of $1,000 per share and the
Company has not received any other offers to purchase such shares of Series A
Preferred Stock;
WHEREAS, the Company desires to issue and sell to each
Purchaser, and each Purchaser desires to purchase from the Company, shares of
Series A Preferred Stock in the amounts listed in Annex I and on the terms and
subject to the conditions set forth herein;
WHEREAS, on March 18, 2002, the Company filed a certificate of
designation of the powers, preferences and relative, participating, optional and
other special rights and qualifications, limitations and restrictions thereof
relating to the Series A Preferred Stock (the "CERTIFICATE OF DESIGNATION"); and
WHEREAS, the Series A Preferred Stock is convertible into
shares (the "CONVERSION SHARES") of the Company's Common Stock, $.01 par value
("COMMON STOCK");
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
I. PURCHASE AND SALE OF SECURITIES
SECTION 1.01 Authorization; Agreements to Sell and to
Purchase. (a) On the Closing Date (as defined in Section 1.02) and on the terms
and subject to the satisfaction of the applicable conditions set forth in this
Agreement, the Company shall issue and sell to each Purchaser, and each
Purchaser, severally and not jointly, shall purchase from the Company, that
number of shares of Series A Preferred Stock set forth opposite the name of each
such Purchaser in Annex I (the "PREFERRED SHARES") for a purchase price per
share equal to $1,000 payable as provided in Section 1.01(b).
(b) Payment. On the Closing Date and on the terms and subject
to the satisfaction of the applicable conditions set forth in this Agreement, as
payment in full for the Preferred Shares being purchased by each Purchaser on
such date and against delivery by the Company of the certificate or certificates
representing such Purchaser's Preferred Shares being purchased on such date,
each of the Purchasers set forth in Annex I shall pay the amount set forth
opposite the name of such Purchaser in Annex I under the heading "Aggregate
Purchase Price" (the "PURCHASE PRICE") by wire transfer of immediately available
funds to an account designated by the Company on the day immediately prior to
the Closing Date.
(c) Provisions of General Application. At the Closing, the
Company shall issue and deliver to each Purchaser, against payment of the
Purchase Price therefore, certificates evidencing the Preferred Shares being
purchased by such Purchaser, registered in the name of such Purchaser, free and
clear of all liens, charges or other encumbrances of any kind.
SECTION 1.02 Closing. The issuance and purchase contemplated
by Section 1.01 (the "CLOSING") shall take place on a date (the "CLOSING DATE")
to be specified by the Company and the Purchasers, which date shall be no later
than the second business day after the date as of which all the conditions set
forth in Sections 6.01 and 6.02 have been satisfied (or, to the extent
permitted, waived by the parties entitled to the benefit thereof). The Closing
shall take place at the offices of Xxxxx & Xxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as may be mutually agreed upon by
the Purchasers and the Company.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers on the
date hereof and on the Closing Date as follows:
SECTION 2.01 Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
own or lease and operate its properties and assets and to carry on its business
as it is now being conducted and as presently proposed to be conducted. The
Company is duly qualified as a foreign corporation to do business, and is in
good standing, in each jurisdiction in which the character of its properties
owned or leased or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified would not have a material
adverse effect on the properties, assets, financial condition, operating
results, business or prospects of the Company and its Subsidiaries (as defined
in Section 2.02), taken as a whole (a "MATERIAL ADVERSE EFFECT").
SECTION 2.02 Subsidiaries. Except for the Subsidiaries
disclosed in the Company SEC Filings (as defined in Section 2.08), the Company
does not own, beneficially or of record, any capital stock or other ownership
interest in any other Person. SAVVIS Communications Corporation, a Missouri
corporation ("SAVVIS MISSOURI") is a corporation duly organized, validly
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existing and in good standing under the laws of Missouri. Global Network Assets,
LLC, a Delaware limited liability company ("GLOBAL LLC"), is a limited liability
company, duly formed, validly existing and in good standing under the laws of
Delaware. Savvis Procurement Corporation, a Delaware corporation ("SAVVIS
PROCUREMENT"), is a corporation duly organized, validly existing and in good
standing under the laws of Delaware. Each of SAVVIS Missouri, Global LLC and
Savvis Procurement has all requisite power and authority to own or lease and
operate its properties and assets and to carry out its business as it is now
being conducted. Each of SAVVIS Missouri, Global LLC and Savvis Procurement is
duly qualified as a foreign corporation to do business, and is in good standing,
in each jurisdiction in which the character of its properties owned or leased or
the nature of its activities makes such qualification necessary, except where
the failure to be so qualified would not have a Material Adverse Effect. As used
in this Agreement, (i) "PERSON" means any corporation, partnership, limited
liability company, trust, joint venture or other entity and (ii) "SUBSIDIARY"
means, with respect to any Person, any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
capital stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of such Person or a combination thereof. SAVVIS Missouri,
Global LLC and Savvis Procurement are the Company's only Significant
Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X).
SECTION 2.03 Capitalization. (a) As of the date hereof, the
authorized capital stock of the Company consists of 900,000,000 shares of Common
Stock and 50,000,000 shares of Preferred Stock, $.01 par value per share
("PREFERRED STOCK"), of which 210,000 have been designated Series A Preferred
Stock. As of the date hereof, prior to the issuance of the Preferred Shares,
94,028,188 shares of Common Stock and 180,470 shares of Preferred Stock are
issued and outstanding. All outstanding shares of Common Stock and Preferred
Stock have been duly authorized and validly issued and are fully paid and
non-assessable and have been issued in compliance with all applicable federal
and state securities laws.
(b) As of the date hereof, except for options granted pursuant
to the Company's stock option plan (the "STOCK OPTION PLAN") to purchase an
aggregate 33,907,040 shares of Common Stock, and except as set forth on Schedule
2.03(b) of the Disclosure Letter of the Company, dated the date hereof (the
"DISCLOSURE LETTER"), no subscription, warrant, option, convertible or
exchangeable instrument, stock appreciation or other right (contingent or other)
to purchase or acquire any shares of any class of capital stock or other equity
interest of the Company or any of its Subsidiaries is authorized or outstanding,
and there is not any agreement, arrangement, understanding or commitment of the
Company or any of its Subsidiaries to issue any subscription, warrant, option,
convertible or exchangeable instrument, stock appreciation or other right
(contingent or other) to purchase or acquire any shares of any class of capital
stock or other equity interest of the Company or any of its Subsidiaries or any
security of any kind convertible into or exercisable or exchangeable for any
shares of capital stock or other equity interest of the Company or any
Subsidiary or to distribute to holders of any class of its capital stock, any
evidences of indebtedness or assets. Except as set forth on Schedule 2.03 of the
Disclosure Letter, there are no preemptive rights, rights of first refusal or
other agreements, arrangements, understandings or rights with respect to the
issue or sale of the Company's or any Subsidiary's capital stock or securities
convertible into, exercisable or exchangeable for capital stock of the Company
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or any Subsidiary. Except as set forth on Schedule 2.03 of the Disclosure
Letter, the Company is not a party to or subject to any agreement or
understanding, and, to the best knowledge of the Company, there is no agreement
or understanding between or among any Persons that affects or relates to the
voting, or giving of written consents or nominating directors, with respect to
the Company, SAVVIS Missouri, Global LLC or Savvis Procurement.
(c) Upon the Closing, the authorized, issued and outstanding
capital stock of the Company will be as set forth on Schedule 2.03(c) to the
Disclosure Letter.
SECTION 2.04 Authorization of Agreements, etc. (a) The Company
has the corporate power and authority to execute, deliver and perform its
obligations under this Agreement, to consummate the transactions contemplated
hereby, and to conduct its business as now conducted and as proposed to be
conducted. Each of (i) the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations hereunder and
(ii) the issuance, sale and delivery by the Company of all of the Preferred
Shares to be issued and sold to the Purchasers hereunder will be duly and
validly authorized prior to the Closing by all requisite corporate and
stockholder action and will not violate any provision of applicable law, any
order of any Governmental Authority (as defined in Section 2.06), the
Certificate of Incorporation or Bylaws of the Company, or any provision of any
indenture, agreement or other instrument to which the Company or any of its
Subsidiaries or their properties or assets is bound, or conflict with, result in
a breach of or constitute (with or without due notice or lapse of time or both)
a default, or result in the vesting, acceleration or material modification of
any benefits under any such indenture, agreement or other instrument or any
compensation agreement or benefit plan, or result in the creation or imposition
of any liens, claims, charges, restrictions, rights of others, security
interests, prior assignments or other encumbrances in favor of any third Person
upon any of the assets of the Company or any of its Subsidiaries. None of the
Company, SAVVIS Missouri, Global LLC nor Savvis Procurement is in violation of
or default of any provision of its articles or certificate of incorporation or
by-laws (or other comparable charter documents).
(b) The issuance, sale and delivery of the Preferred Shares
and the Conversion Shares to the Purchasers is not and will not be subject to
any preemptive rights of stockholders of the Company or to any right of first
refusal or other similar right in favor of any Person.
(c) The Preferred Shares, when issued in accordance with the
terms of this Agreement, will be duly authorized and validly issued, fully paid
and nonassessable, issued in compliance with all applicable federal and
securities laws and will have the powers, preferences, rights and qualifications
set forth in the Certificate of Designation. Each of the Conversion Shares into
which the Preferred Shares are convertible in accordance with the Certificate of
Designation have been duly authorized by the Company and duly reserved in
contemplation of the conversion of such Preferred Shares and, when issued in
accordance with the provisions of the Certificate of Designation, will be
validly issued, fully paid and nonassessable shares of capital stock of the
Company, issued in compliance with all applicable federal and securities laws.
SECTION 2.05 Validity. This Agreement has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
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its terms, except as may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization and similar laws relating to or affecting creditors'
rights generally and general equitable principles.
SECTION 2.06 Governmental Approvals; Consents. Subject to the
accuracy of the representations and warranties of the Purchasers set forth in
Article III, no registration or filing with, or consent or approval of, or other
action by, any federal, state or other governmental agency, court,
instrumentality or securities exchange (each, a "GOVERNMENTAL AUTHORITY") or any
other third person or entity is or will be necessary for the valid execution,
delivery and performance of this Agreement or the issuance and delivery of the
Preferred Shares or the Conversion Shares.
SECTION 2.07 Financial Statements. (a) The Company has
furnished to the Purchasers the unaudited consolidated balance sheet of the
Company and its Subsidiaries as of June 30, 2002 (the "JUNE BALANCE SHEET") and
the related consolidated statements of operations, stockholders' equity and cash
flows for the six months then ended. All such financial statements (including
but not limited to any related schedules and/or notes) have been prepared in
accordance with generally accepted accounting principles in the United States
("GAAP") consistently applied and consistent with prior periods, except for
normal year-end adjustments and the absence of footnotes. All such financial
statements fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of June 30, 2002, and such
statements of operations, stockholders' equity and cash flows fairly present in
all material respects the consolidated results of operations, stockholders'
equity and cash flows of the Company and its Subsidiaries for the six months
ended June 30, 2002.
(b) Except as and to the extent (i) reflected on the June
Balance Sheet, (ii) incurred since June 30, 2002 in the ordinary course of
business consistent with past practice, or (iii) as disclosed in the Company SEC
Filings, neither the Company nor any of its Subsidiaries has any material debts,
liabilities or obligations of any kind or nature, whether known or unknown,
secured or unsecured, absolute, accrued, contingent or otherwise, and whether
due or to become due, that would be required to be reflected on a balance sheet,
or the notes thereto, prepared in accordance with GAAP.
(c) Except as disclosed in the Company SEC Filings or as set
forth on Schedule 2.07(c) of the Disclosure Letter, since June 30, 2002, neither
the Company nor any of its Subsidiaries has suffered any Material Adverse
Effect.
SECTION 2.08 SEC Filings. The Company has filed all forms,
reports and documents required to be filed with the Securities and Exchange
Commission (the "SEC") since the completion of the Company's initial public
offering on February 18, 2000, and the Company has made available to the
Purchasers, as filed with the SEC, complete and accurate copies of (i) the
Annual Report of the Company on Form 10-K for the years ended December 31, 1999,
2000 and 2001, and (ii) all other reports, statements and registration
statements (including but not limited to Current Reports on Form 8-K and
Quarterly Reports on Form 10-Q) filed by the Company with the SEC since December
31, 2000, in each case including but not limited to all amendments and
supplements (collectively, the "COMPANY SEC FILINGS"). The Company SEC Filings
(i) were prepared in compliance with the requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT"), or the Securities Exchange Act of 1934,
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as amended (the "EXCHANGE ACT"), and the rules and regulations thereunder, as
the case may be, and (ii) did not at the time of filing (or if amended,
supplemented or superseded by a filing prior to the date hereof, on the date of
that filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 2.09 Absence of Certain Changes or Events. Except as
set forth in the Company SEC Filings or on Schedule 2.09 of the Disclosure
Letter, and except as otherwise expressly contemplated by this Agreement, since
June 30, 2002, neither the Company nor any of its Subsidiaries has (a) issued
any stock, bonds or other corporate securities, (b) borrowed or refinanced any
indebtedness for borrowed money, (c) discharged or satisfied any material claim
or incurred or paid any obligation or liability (absolute or contingent) other
than current liabilities shown on the June Balance Sheet and current liabilities
incurred since the date of such balance sheet in the ordinary course of business
consistent with past practice, (d) in the case of the Company only, declared or
made any payment or distribution to stockholders, or purchased or redeemed any
shares of its capital stock or other securities, (e) sold, exchanged or
otherwise disposed of any material assets except in the ordinary course of
business, (f) waived any valuable right or a material debt owed to it, (g)
suffered any damage, destruction or loss, whether or not covered by insurance,
which has materially and adversely affected its business, (h) made any material
change or material amendment to a Material Agreement (as defined in Section
2.12), (i) suffered any Material Adverse Effect or (j) except in connection with
this Agreement and the transactions contemplated hereby, entered into any
agreement, letter of intent or similar undertaking to take any of the actions
listed in clauses (a) through (i) above.
SECTION 2.10 Actions Pending. Except as disclosed in the
Company SEC Filings or as set forth on Schedule 2.10 of the Disclosure Letter,
there is no action, suit, arbitration, investigation or proceeding pending or,
to the best knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries or to which the Company's or any of its
Subsidiaries' property is subject, before any court or by or before any
governmental body or arbitration board or tribunal, which the Company would be
required to disclose pursuant to Item 1 of Part II of Form 10-Q if such Form
10-Q were required to be filed on and as of the date hereof. For the purposes of
this Agreement, the term "best knowledge of the Company" shall mean the actual
knowledge, upon reasonable inquiry, of the executive officers of the Company.
SECTION 2.11 Compliance with Law; Permits. Neither the Company
nor any of its Subsidiaries is in default under or in violation of, in any
respect, any order or decree of any court, Governmental Authority, arbitrator or
arbitration board or tribunal or under any laws, ordinances, governmental rules
or regulations to which the Company or any of such Subsidiaries or any of their
respective properties or assets is subject, except where such default would not
have a Material Adverse Effect. The Company possesses all permits,
authorizations, approvals, registrations, variances and licenses ("PERMITS")
necessary for the Company or its Subsidiaries to own, use and maintain their
properties and assets or required for the conduct of its business in
substantially the same manner as it is currently conducted, except where the
failure to possess any such Permit would not have a Material Adverse Effect.
Except to the extent the failure of any of the following to be correct would not
have a Material Adverse Effect, each Permit is in full force and effect, and no
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proceeding is pending or, to the best knowledge of the Company, threatened to
modify, suspend, revoke or otherwise limit any Permit, and no administrative or
governmental actions have been taken or, to the best knowledge of the Company,
threatened in connection with the expiration or renewal of any Permit.
SECTION 2.12 Contracts. Except as disclosed in the Company SEC
Filings, there are no contracts or agreements that are material to the conduct
of the Company's business or to the financial condition or results of operations
of the Company and its Subsidiaries, taken as a whole, that the Company would be
required to disclose pursuant to paragraph 10 of Item 601 of Regulation S-K if a
Form 10-Q were required to be filed on and as of the date hereof. Except as set
forth in the SEC Filings or on Schedule 2.12.B of the Disclosure Letter, each of
the agreements (collectively, the "MATERIAL AGREEMENTS") disclosed as an exhibit
in the Company SEC Filings in response to paragraph 10 of Item 601 of Regulation
S-K under which there are continuing rights or obligations is a valid and
enforceable obligation of the Company and, to the best knowledge of the Company,
of the other parties thereto, except where the failure to be valid or
enforceable would not have a Material Adverse Effect and provided that no
representation is made as to the enforceability of such agreements to the extent
that their enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforceability of
creditors' rights generally or by general equitable principles. Except as set
forth on Schedule 2.12.B of the Disclosure Letter, to the best knowledge of the
Company, the Company has not been notified in writing of any claim that any
Material Agreement is not valid and enforceable in accordance with its terms for
the periods stated therein, or that there is under any such contract any
existing default or event of default or event that with notice or lapse of time
or both would constitute such a default, except any such failure to be valid or
enforceable and any such defaults that, in the aggregate, would not have a
Material Adverse Effect. The Company is not a party to any contract or agreement
that would result in an obligation of the Company to make any payments under
such agreement or contract solely as a result of the execution and delivery of
this Agreement or the consummation of any of the transactions contemplated
hereby (including, but not limited to, the issuance, sale and delivery of the
Preferred Shares or the Conversion Shares). The Company has heretofore made
available true and correct copies of the Material Agreements to the Purchasers.
SECTION 2.13 Insurance. The Company maintains insurance with
respect to its businesses, properties, officers, directors and employees
customary with industry practices. The Company has heretofore made available for
inspection by the Purchasers true and complete copies of all such insurance
policies. Such policies are, and will be, on the Closing Date, in full force and
effect and are, and will be upon the Closing, free from any right of termination
or limitation (other than for non-payment) on the part of the insurance
carriers. None of the Company or any of its Subsidiaries has received any notice
of cancellation or termination in respect of any such policy or is in default
thereunder.
SECTION 2.14 Offering of the Preferred Shares. Assuming the
accuracy of the representations and warranties of the Purchasers set forth in
Article III hereof, and the accuracy of the representations and warranties of
the purchasers under the Securities Purchase Agreements with the Company, dated
as of March 6, 2002 and June 28, 2002, neither the Company nor any Person acting
on the Company's behalf has taken or will take any action (including but not
limited to, any offer, issuance or sale of any securities of the Company under
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circumstances which might require the integration of such transactions with the
sale of the Preferred Shares under the Securities Act or the rules and
regulations of the SEC thereunder) which would require the offering, issuance or
sale of the Preferred Shares to the Purchasers (but not including the resale
thereof) pursuant to this Agreement to be registered under the Securities Act.
SECTION 2.15 Related-Party Transactions. Except (i) as set
forth in the Company SEC Filings or (ii) as contemplated hereby, there are no
existing material arrangements or proposed material transactions between the
Company and any Person or entity that the Company would be required to disclose
pursuant to Item 404 of Regulation S-K of the SEC if a proxy statement of the
Company were required to be filed on or as of the date hereof, other than
arrangements or transactions between the Company and any of the Purchasers.
SECTION 2.16 Brokers. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by the
Company directly with the Purchasers, without the intervention of any other
Person on behalf of the Company in such manner as to give rise to any valid
claim by any other Person against the Company for a finder's fee, brokerage
commission or similar payment.
SECTION 2.17 Registration Rights. Except as set forth on
Schedule 2.17 of the Disclosure Letter, the Company has not granted or agreed to
grant any Person any registration rights (including piggyback registration
rights) to have any of the presently outstanding securities of the Company or
any of its securities that may subsequently be issued registered with the SEC.
SECTION 2.18 Disclosure. Neither the representations and
warranties contained in this Agreement, nor any other documents or certificates
made or delivered in connection herewith (including the Disclosure Letter),
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements herein, in light of the circumstances in which
they were made, not misleading.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Each Purchaser, severally and not jointly, represents and
warrants to the Company on the date hereof and on the Closing Date, as follows:
SECTION 3.01 Organization. Such Purchaser (other than any
Purchaser who is an individual) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has all
requisite corporate, limited liability or limited partnership power and
authority to operate its properties and assets and to carry on its business as
it is now being conducted.
SECTION 3.02 Authorization. The execution, delivery and
performance by such Purchaser of this Agreement, and the purchase and receipt by
such Purchaser of the Preferred Shares being acquired by it hereunder, have been
duly authorized by all requisite action on the part of such Purchaser and will
not violate any provision of applicable law, any order of any court or other
agency of government, the charter or other governing documents of such
Purchaser.
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SECTION 3.03 Validity. This Agreement has been duly executed
and delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization and similar laws relating to or affecting creditors'
rights generally and general equitable principles.
SECTION 3.04 Investment Representations. (a) Such Purchaser is
acquiring the Preferred Shares being purchased by such Purchaser hereunder for
such Purchaser's own account, for investment, and not with a view toward the
resale or distribution thereof.
(b) Such Purchaser understands that it must bear the economic
risk of such Purchaser's investment for an indefinite period of time, because
the Preferred Shares and, when issued upon conversion of Preferred Shares, the
Conversion Shares, are not registered under the Securities Act or any applicable
state securities laws and may not be resold unless subsequently registered under
the Securities Act and such other laws or unless an exemption from such
registration is available.
(c) Such Purchaser has the ability to bear the economic risks
of such investment in the Preferred Shares being purchased hereunder for an
indefinite period of time. Such Purchaser further acknowledges that it has
received copies of the Company SEC Filings and has had the opportunity to ask
questions of, and receive answers from, officers of the Company with respect to
the business and financial condition of the Company and the terms and conditions
of the offering of the Preferred Shares and to obtain additional information
necessary to verify such information or can acquire it without unreasonable
effort or expense.
(d) Such Purchaser has such knowledge and experience in
financial and business matters that such Purchaser is capable of evaluating the
merits and risks of its investment in the Preferred Shares. Such Purchaser
further represents that it is an "accredited investor" as such term is defined
in Rule 501 of Regulation D of the SEC under the Securities Act with respect to
its purchase of the Preferred Shares, and that any such Purchaser that is a
limited partnership has not been formed solely for the purpose of purchasing the
Preferred Shares.
SECTION 3.05 Governmental Approvals; Consents. No registration
or filing with, or consent or approval of, or other action by, any Governmental
Authority is or will be necessary by the Purchaser for the valid execution,
delivery and performance of this Agreement.
IV. COVENANTS OF THE COMPANY
SECTION 4.01 Access to Information. From the date hereof until
the Closing Date, the Company will (a) furnish to the Purchasers and their
authorized representatives such financial and operating data and other
information relating to the Company and its Subsidiaries as such Persons may
reasonably request and (b) instruct its counsel, independent accountants and
financial advisors to cooperate with the Purchasers and their authorized
representatives in their investigation of the Company. Any investigation
pursuant to this Section shall be conducted in such manner as not to interfere
unreasonably with the conduct of the business of the Company.
SECTION 4.02 Compliance with Conditions; Commercially
Reasonable Efforts. The Company shall use all commercially reasonable efforts to
cause all conditions precedent to the obligations of the Company and the
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Purchasers to be satisfied. Upon the terms and subject to the conditions of this
Agreement, the Company will use all commercially reasonable efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable consistent with applicable laws to consummate and
make effective in the most expeditious manner practicable the issuance, sale and
delivery of the Preferred Shares to the Purchasers in accordance with the terms
of this Agreement.
SECTION 4.03 Consents and Approvals. The Company (a) shall use
all commercially reasonable efforts to obtain all necessary consents, waivers,
authorizations and approvals of all Governmental Authorities, and of all other
Persons required in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby; and
(b) shall diligently assist and cooperate with the Purchasers in preparing and
filing all documents required to be submitted by the Purchasers to any
Governmental Authority in connection with the issuance, sale and delivery of the
Preferred Shares to the Purchasers (which assistance and cooperation shall
include timely furnishing to the Purchasers all information concerning the
Company and its Subsidiaries that counsel to the Purchasers reasonably
determines is required to be included in such documents or would be helpful in
obtaining any such required consent, waiver, authorization or approval).
SECTION 4.04 Reservation of Shares. So long as any of the
Preferred Shares are outstanding, the Company shall keep reserved for issuance a
sufficient number of shares of Common Stock to satisfy its conversion
obligations under the Certificate of Designation.
SECTION 4.05 Listing of Shares. The Company shall cause the
Conversion Shares issuable upon conversion of the Preferred Shares to be listed
or otherwise eligible for trading on the NASDAQ Small Cap Market System or such
other exchange or market at which the Common Stock is traded at the time of
conversion or exercise.
SECTION 4.06 Use of Proceeds. The Company shall not, without
the prior written consent the Purchasers, use the aggregate proceeds to be
received upon issuance of the Preferred Shares other than for working capital
and general corporate purposes, substantially in accordance with the operating
budget approved by the Board of Directors of the Company on July 24, 2002 and
such amended budgets as may be from time to time approved by the Board of
Directors.
V. COVENANTS OF THE PURCHASERS
SECTION 5.01 Agreement to Take Necessary and Desirable
Actions. Each Purchaser shall (a) subject to the satisfaction of the conditions
set forth in Section 6.01, execute and deliver such other documents,
certificates, agreements and other writings and (b) take such other actions, in
each case, as may be reasonably necessary, desirable or requested by the Company
in order to consummate or implement the issuance, sale and delivery of the
Preferred Shares to the Purchasers in accordance with the terms of this
Agreement.
SECTION 5.02 Compliance with Conditions; Commercially
Reasonable Efforts. Each Purchaser will use all commercially reasonable efforts
to cause all of the obligations imposed upon it in this Agreement to be duly
complied with, and to cause all conditions precedent to the obligations of the
10
Company and the Purchasers to be satisfied. Upon the terms and subject to the
conditions of this Agreement, each Purchaser will use all commercially
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable consistent with
applicable law, to consummate and make effective in the most expeditious manner
practicable the issuance, sale and delivery of the Preferred Shares to such
Purchaser in accordance with the terms of this Agreement.
SECTION 5.03 Consents and Approvals. Each Purchaser (a) shall
use all commercially reasonable efforts to obtain all necessary consents,
waivers, authorizations and approvals of all Governmental Authorities, and of
all other Persons required in connection with the execution, delivery and
performance of this Agreement, or the consummation of transactions contemplated
hereby and (b) shall diligently assist and cooperate with the Company in
preparing and filing all documents required to be submitted by the Company to
any Governmental Authority in connection with such transactions (which
assistance and cooperation shall include, without limitation, timely furnishing
to the Company all information concerning such Purchaser that counsel to the
Company reasonably determines is required to be included in such documents or
would be helpful in obtaining any such required consent, waiver, authorization
or approval).
VI. CONDITIONS PRECEDENT
SECTION 6.01 Conditions Precedent to the Obligations of the
Purchasers in connection with the Closing. With regard to the Closing, the
obligations of the Purchasers hereunder are, at their option, subject to the
satisfaction of the following conditions:
(a) Representations and Warranties to Be True and Correct. The
representations and warranties of the Company contained in this Agreement that
are qualified as to materiality or Material Adverse Effect shall be true and
correct and all other representations and warranties of the Company shall be
true and correct in all material respects, each on the Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of such date.
(b) Performance. The Company shall have performed and complied
in all material respects with all agreements, covenants and conditions contained
herein required to be performed or complied with by it prior to or on the
Closing Date.
(c) All Proceedings to Be Satisfactory. All corporate and
other proceedings to be taken by the Company and all waivers and consents to be
obtained by the Company in connection with the transactions contemplated hereby
shall have been taken or obtained by the Company.
(d) Legal Proceedings. On the Closing Date, no preliminary or
permanent injunction or other order, decree or ruling issued by any court of
competent jurisdiction nor any statute, rule, regulation or order entered,
promulgated or enacted by any governmental, regulatory or administrative agency
or authority, or national securities exchange shall be in effect that would
prevent the consummation of the transactions contemplated by this Agreement.
(e) Governmental Approvals. All necessary governmental and
regulatory consents and approvals and necessary third party consents shall have
been obtained.
11
(f) No Material Adverse Effect. Except for the effects of the
matters disclosed in the Company SEC Filings, there shall have been no Material
Adverse Effect since June 30, 2002.
(g) Opinions of Counsel. The Purchasers shall have received
from Xxxxx & Xxxxxxx, L.L.P. and the chief legal officer of the Company two
opinions, each dated the Closing Date, substantially in the forms delivered to
purchasers of Preferred Stock on March 18, 2002.
SECTION 6.02 Conditions Precedent to the Obligations of the
Company in Connection with the Closing. With regard to the Closing, the
obligations of the Company hereunder are, at its option, subject to the
satisfaction of the following conditions:
(a) Representations and Warranties to Be True and Correct. The
representations and warranties of the Purchasers contained in this Agreement
shall be true and correct in all material respects on the Closing Date with the
same effect as though such representations and warranties had been made on and
as of such date.
(b) Performance. The Purchasers shall have performed and
complied in all material respects with all agreements, covenants and conditions
contained herein required to be performed or complied with by them prior to or
on the Closing Date.
(c) All Proceedings to Be Satisfactory. All proceedings to be
taken by the Purchasers and all waivers and consents to be obtained by the
Purchasers in connection with the transactions contemplated hereby shall have
been taken or obtained by the Purchasers.
(d) Legal Proceedings. On the Closing Date, no preliminary or
permanent injunction or other order, decree or ruling issued by any court of
competent jurisdiction nor any statute, rule, regulation or order entered,
promulgated or enacted by any Governmental Authority shall be in effect that
would prevent the consummation of the transactions contemplated by this
Agreement.
(e) Governmental Approvals. All necessary governmental
approvals and regulatory approvals and necessary third party consents shall have
been obtained.
VII. SURVIVAL OF REPRESENTATIONS; INDEMNITY
SECTION 7.01 Survival of Representations. Subject as set forth
below, all representations and warranties made by any party hereto in this
Agreement or pursuant hereto shall survive for the period commencing on the date
hereof and ending on the second anniversary of the date hereof.
SECTION 7.02 General Indemnity. (a) Subject to the terms and
conditions of this Article, the Company hereby agrees to indemnify, defend and
hold the Purchasers harmless from and against all demands, claims, actions or
causes of action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees and expenses (collectively, "DAMAGES"), asserted against, resulting to,
imposed upon or incurred by the Purchasers by reason of or resulting from a
breach of any representation, warranty or covenant of the Company contained in
or made pursuant to this Agreement.
12
(b) Subject to the terms and conditions of this Article VII,
each Purchaser hereby agrees, severally and not jointly, to indemnify, defend
and hold the Company harmless from and against all Damages asserted against,
resulting to, imposed upon or incurred by the Company by reason of or resulting
from a breach of any representation, warranty or covenant of such Purchaser
contained in Section 3 and Section 5 this Agreement.
SECTION 7.03 Conditions of Indemnification. The respective
several obligations and liabilities of the Purchasers, on the one hand, and the
Company, on the other hand (the "INDEMNIFYING PARTY"), to the other (the "PARTY
TO BE INDEMNIFIED") under Section 7.02 hereof with respect to claims resulting
from the assertion of liability by third parties shall be subject to the
following terms and conditions:
(a) within 20 days after receipt of notice of commencement of
any action or the assertion in writing of any claim by a third party, the party
to be indemnified shall give the indemnifying party written notice thereof
together with a copy of such claim, process or other legal pleading, and the
indemnifying party shall have the right to undertake the defense thereof by
representatives of its own choosing;
(b) in the event that the indemnifying party, by the 30th day
after receipt of notice of any such claim (or, if earlier, by the tenth day
preceding the day on which an answer or other pleading must be served in order
to prevent judgment by default in favor of the Person asserting such claim),
does not elect to defend against such claim, the party to be indemnified will
(upon further notice to the indemnifying party) have the right to undertake the
defense, compromise or settlement of such claim on behalf of and for the account
and risk of the indemnifying party, subject to the right of the indemnifying
party to assume the defense of such claim at any time prior to settlement,
compromise or final determination thereof, provided that the indemnifying party
shall be given at least 15 days prior written notice of the effectiveness of any
such proposed settlement or compromise;
(c) anything in this Section 7.03 to the contrary
notwithstanding (i) if there is a reasonable probability that a claim may
materially and adversely affect the indemnifying party other than as a result of
money damages or other money payments, the indemnifying party shall have the
right, at its own cost and expense, to compromise or settle such claim, but (ii)
the indemnifying party shall not, without the prior written consent of the party
to be indemnified, settle or compromise any claim or consent to the entry of any
judgment which does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the party to be indemnified a release from all
liability in respect of such claim; and
(d) in connection with any such indemnification, the
indemnified party will cooperate in all reasonable requests of the indemnifying
party.
VIII. MISCELLANEOUS
SECTION 8.01 Expenses, etc.. All costs and expenses incurred
in connection with this Agreement shall be paid by the party incurring such cost
or expense; provided, that, upon execution of this Agreement, the Company shall
pay the reasonable and actual legal, due diligence and other reasonable out of
pocket costs and expenses of the Purchasers.
13
SECTION 8.02 Survival of Agreements. All covenants, agreements
and representations and warranties (except in the case of representations and
warranties, as limited in Section 7.01) made herein shall survive the execution
and delivery of this Agreement and the issuance, sale and delivery of the
Preferred Shares, notwithstanding any investigation made at any time by or on
behalf of any party hereto. All statements contained in any certificate or other
instrument delivered by the Company hereunder shall be deemed to constitute
representations and warranties made by the Company.
SECTION 8.03 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 first class certified
mail, postage prepaid, by nationally recognized overnight courier, or by
facsimile addressed to such party at the address or facsimile number set forth
below or such other address or facsimile number as may hereafter be designated
in writing by the addressee to the addressor listing all parties:
if to the Company, to
SAVVIS Communications Corporation
00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
if to any Purchaser to:
x/x Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx
14
with a copy to:
Reboul, MacMurray, Xxxxxx & Xxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx, Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
or, in any case, at such other address or addresses 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 (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of mailing, on the fifth business day following the date of such
mailing, (c) in the case of delivery by overnight courier, on the business day
following the date of delivery to such courier, and (d) in the case of
facsimile, when received.
SECTION 8.04 Press Releases and Public Announcements. All
public announcements or disclosures relating to this Agreement shall be made
only if mutually agreed upon by the Company and WCAS VIII, except to the extent
such disclosure is, in the reasonable good faith opinion of the Company or
counsel to the Purchasers, required by law or by regulation of any applicable
national stock exchange or any SEC recognized trading market or equivalent
foreign exchange or trading market; provided that any such required disclosure
shall only be made, to the extent consistent with law and regulation of any
applicable national stock exchange or SEC recognized trading market or
equivalent foreign exchange or trading market, after consultation with and
agreement by WCAS VIII or the Company as applicable.
SECTION 8.05 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to conflict of laws principles.
SECTION 8.06 Entire Agreement. This Agreement (including the
Schedules hereto) constitutes the entire agreement of the parties with respect
to the subject matter hereof and may not be amended or modified nor any
provisions waived except as set forth in Section 8.09.
SECTION 8.07 Assignment; No Third Party Beneficiaries. This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by the Company without the prior written consent of the Purchasers,
and may not be assigned or delegated by the Purchasers without the Company's
prior written consent. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties and their respective
successors and permitted assigns. This Agreement is not intended to confer any
rights or benefits on any Persons other than the parties hereto, except as
expressly set forth in Section 7.02 or as contemplated by this Section 8.07. Any
designee or assignee permitted under this Section 8.07 is referred to herein as
a "PERMITTED DESIGNEE."
SECTION 8.08 Termination. (a) This Agreement may be terminated
at any time prior to the Closing:
15
(i) by mutual written agreement of the Company and the
Purchasers;
(ii) by either the Company or WCAS VIII if the Closing shall
not have been consummated on or before September 30, 2002, unless
extended by mutual agreement or unless the failure to consummate the
Closing is attributable to a failure on the part of the party seeking
to terminate this Agreement to perform any obligation required to be
performed by such party at or prior to the Closing Date; or
(iii) by either the Company or WCAS VIII if consummation of
the transactions contemplated hereby to be consummated on the Closing
Date would violate any nonappealable final order, decree or judgment of
any court or Governmental Authority having competent jurisdiction.
(b) The party desiring to terminate this Agreement pursuant to
Section 8.08(a)(ii) or (iii) hereof shall promptly give notice of such
termination to the other party.
(c) If this Agreement is terminated as permitted by this
Section 8.08, such termination shall be without liability of either party (or
any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other parties to this Agreement; provided
that if such termination shall result from the willful (i) failure of either
party to fulfill a condition to the performance of the obligations of the other
party, (ii) failure of either party to perform a covenant of such party in this
Agreement or (iii) breach by either party hereto of any representation or
warranty or agreement contained herein, such party shall be fully liable for any
and all losses incurred or suffered by the other party as a result of such
failure or breach. The provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05, and
8.09 shall survive any termination hereof pursuant to this Section 8.08.
SECTION 8.09 Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, by the Company and the Purchasers. The Purchasers
agree that it shall be sufficient for purposes of any amendment, waiver or
consent hereunder required to be obtained from and/or signed by the Purchasers
for such amendment, waiver or consent to be obtained from and/or signed by WCAS
VIII.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder will operate as a waiver thereof, nor will any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege, nor will any
waiving of any right power or privilege operate to waive any other subsequent
right, power or privilege. The rights and remedies herein provided will be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 8.10 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8.11 Parties in Interest. All covenants and agreements
contained in this Agreement by or on behalf of any party hereto shall bind and
inure to the benefit of the respective successors and Permitted Designees of
such party hereto whether so expressed or not.
16
IN WITNESS WHEREOF, the Company and the Purchasers have
executed this Agreement as of the day and year first above written.
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Lane X. Xxxxxxxxxx
----------------------------------------------
Name: Lane X. Xxxxxxxxxx
Title: Vice President & Acting General Counsel
WELSH, CARSON, XXXXXXXX &
XXXXX VIII, L.P.
By WCAS VIII Associates LLC,
General Partner
By: /s/ Xxxxxxxx X. Rather
------------------------------------
Xxxxxxxx X. Rather
Managing Member
WELSH, CARSON, XXXXXXXX &
XXXXX VII, L.P.
By WCAS VII Partners L.P.,
General Partner
By: /s/ Xxxxxxxx X. Rather
------------------------------------
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
------------------------------------
Xxxxxxxx X. Rather
Attorney-in-Fact
WCAS MANAGEMENT CORPORATION
By: /s/ Xxxxxxxx X. Rather
------------------------------------
Xxxxxxxx X. Rather
Treasurer
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
XXX FBO Xxxxx X. Xxxxxxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xx Xxxxxx
Xxxx X. Xxxxxxx
X. Xxxxx Xxxxxxx
Xxxxxx Xxxxx
XXX FBO Xxxxx X. Xxxxxxx
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
XXXXXX XXXXXXXX TRUST
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
XXXXXXX XXXXXXXX TRUST
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
XXXX XXXXXXXX TRUST
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
ANNEX I
Aggregate Purchase Number of
Name and Address of Purchaser Price Preferred Shares
----------------------------- ------------------ ----------------
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. $18,248,000 18,248
Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P. $1,416,000 1,416
Welsh, Carson, Xxxxxxxx & Xxxxx VI, L.P. $1,889,000 1,889
Xxxxxxx Xxxxxx $174,000 174
Xxxxx Xxxxxxxx $185,000 185
XXX-Xxxxx Xxxxxxxx $29,000 29
Xxxxxx Xxxxxxxx Trust $2,000 2
Xxxxxxx Xxxxxxxx Trust $2,000 2
Xxxx Xxxxxxxx Trust $2,000 2
Xxxxxx Xxxx $122,000 122
Xxxxxx Xxxxxxxxx $60,000 60
Xxxxxxx xx Xxxxxx $25,000 25
Xxxx Xxxxxxx $5,000 5
D. Xxxxx Xxxxxxx $2,000 2
Xxxxxx Xxxxx $2,000 2
XXX FBO Xxxxx X. Xxxxxxxx $2,000 2
Xxxx Xxxxxxx $2,000 2
Xxxx Xxxxxxx $2,000 2
Xxxx Xxx $1,000 1
XXX FBO Xxxxxxxx X. Rather $2,000 2
WCAS Management Corporation $394,000 394
Xxxxx Xxxxxx (XXX) $13,000 13
Xxxxxxx Xxxxx $20,000 20
Xxxxx Xxx Xxxxx $1,000 1
TOTAL.................................. $22,600,000 22,600
