EXHIBIT 10.2
EXECUTION DRAFT
INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT, dated as of March 6, 2002, among SAVVIS
COMMUNICATIONS CORPORATION, a Delaware corporation ("SAVVIS" or the "COMPANY"),
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P., a Delaware limited partnership
("WCAS"), and the several other entities and persons affiliated with WCAS listed
on the signature pages hereto (the "WCAS PERSONS" and collectively with WCAS,
the "WCAS INVESTORS"), Reuters Holdings Switzerland SA, a societe anonyme
organized under the laws of Switzerland ("REUTERS"), the other investor-parties
that hold Preferred Stock (as defined below) or Warrants (as defined below) that
are listed under "Other Investors" on the signature pages hereto or become a
party to this Agreement in accordance with Section 10 (collectively, the "OTHER
INVESTORS") and any Permitted Transferees (as defined below) that become a party
to this Agreement in accordance with Section 12(d) (together with the Other
Investors, the WCAS Investors and Reuters, the "INVESTORS").
W I T N E S S E T H:
WHEREAS, the WCAS VIII is the record and beneficial holder of an
aggregate of 6,250,000 shares (the "FEBRUARY 2000 COMMON SHARES") of Common
Stock, par value $.01 per share ("COMMON STOCK"), of Savvis;
WHEREAS, Bridge Information Systems, Inc. and Savvis granted
to WCAS certain registration rights pursuant to the Registration Rights
Agreement, dated as of February 7, 2000 (the "FEBRUARY 2000 RIGHTS AGREEMENT")
and Savvis granted to (i) the WCAS Investors certain registration rights
pursuant to the Registration Rights Agreement, dated as of February 20, 2001
(the "FEBRUARY 2001 RIGHTS AGREEMENT") and (ii) Reuters certain registration
rights pursuant to the Registration Rights Agreement, dated as of May 16, 2001
(together with the February 2000 Rights Agreement and the February 2001 Rights
Agreement, the "EXISTING RIGHTS AGREEMENTS");
WHEREAS, the WCAS Investors, certain Other Investors and Savvis are
parties to a Securities Purchase Agreement, dated as of the date hereof (the
"PURCHASE AGREEMENT"), pursuant to which Savvis desires to sell to the WCAS
Investors and such Other Investors, their successors and permitted assigns
shares of Series A Convertible Redeemable Preferred Stock, par value, $.01 per
share (the "PREFERRED STOCK"), convertible into such number of shares of Common
Stock determined according to Article 4 of the Certificate of Designations
relating to the Preferred Stock (the "COVERED CONVERTED COMMON SHARES");
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreement, Nortel Networks Inc. ("NORTEL NETWORKS") and General
Electric Capital Corporation ("GECC") have entered into agreements relating to
their respective financing arrangements with the Company and, in connection
therewith, the Company has issued to each of GECC and Nortel Networks warrants
to purchase Common Stock (the "WARRANTS");
WHEREAS, in order to induce the WCAS Investors and such Other Investors
to enter into the Purchase Agreement, to induce GECC and Nortel Networks to
enter into the amended financing arrangements, and to consummate the
transactions contemplated by the foregoing, the WCAS Investors and Reuters have
agreed to terminate the Existing Rights Agreements and Savvis has agreed to
grant the Investors certain registration rights pursuant to this Agreement with
respect to the Covered Common Shares and certain other shares of Common Stock
from time to time held by the Investors; and
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings set forth below:
"AFFILIATE" means WCAS, any other WCAS Investor or any investment
limited partnership affiliated therewith, any general partner or principal
of WCAS, any such other WCAS Investor or any such investment limited
partnership.
"COMMISSION" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"COVERED COMMON SHARES" means the Covered Converted Common Shares and
the Covered Warrant Common Shares.
"COVERED WARRANT COMMON SHARES" means the shares of Common Stock into
which the Warrants are exercisable and any other shares of Common Stock
distributable on, with respect to, or in substitution of such shares.
"EFFECTIVE DATE" means the Closing Date (as defined in the Purchase
Agreement).
"ELIGIBLE INVESTOR" means at any time (a) WCAS or its Permitted
Transferees, Reuters or any Other Investor (other than Nortel Networks or
GECC), so long as such Person owns Preferred Stock representing at least
ten percent (10%) of the then outstanding voting power of Savvis and (b)
WCAS (together with its Affiliates), Reuters or any Other Investor (other
than Nortel Networks or GECC), so long as each such Person owns Savvis
Stock representing at least five percent (5%) of the outstanding Savvis
voting power.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"NEW CAPITAL STOCK" shall mean any Savvis Stock or securities
exchangeable, convertible or exercisable into shares of Savvis Stock
whether or not authorized on the date hereof; provided, however, that "New
Capital Stock" shall not include the following: (i) shares of Savvis Stock
outstanding on the date hereof; (ii) shares of Preferred Stock (whether or
not issued pursuant to the Purchase Agreement); (iii) Covered Common
Shares; (iv) capital stock issued to officers, directors or employees of,
or consultants to,
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Savvis pursuant to a stock grant, option plan or purchase plan or other
stock incentive program, including without limitation sales of shares to
such Persons pursuant to restricted stock purchase agreements approved by
the Board of Directors of the Savvis; (v) capital stock issued as a
dividend or distribution on capital stock or in connection with any stock
split, stock dividend or similar transaction; (vi) capital stock issued in
a firm-commitment underwritten public offering pursuant to a registration
statement filed under the Securities Act; and (vii) securities issued
pursuant to business combination transactions or the acquisition of
technology or other assets of other businesses approved by the Board of
Directors.
"PERMITTED TRANSFEREE" has the meaning ascribed to such term in Section
12(d).
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock issuer,
interest, trust or unincorporated organization (including any subdivision
or ongoing business of any such entity or substantially all of the assets
of any such entity, subdivision or business).
"PRO RATA SHARE" shall, with respect to any Eligible Investor, mean the
percentage obtained when (i) the sum of the number of Covered Converted
Common Shares held by such Eligible Investor plus the number of shares of
Common Stock issuable upon exercise of options or warrants to purchase
Common Stock or other Savvis Stock convertible into Common Stock held by
such Eligible Investor plus the number of shares of Common Stock then held
by such Eligible Investor is divided by (ii) the sum of the total number of
shares of Common Stock then outstanding plus the total number of Covered
Converted Common Shares and other securities convertible into or
exchangeable or exercisable for Common Stock then outstanding.
"RESTRICTED STOCK" means, at any time, (i) the Covered Common Shares
and any shares of Common Stock issuable upon or issuable with respect to
the Covered Common Shares by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise, in each case only so
long as such shares have not been sold to the public pursuant to an
effective registration statement under, or pursuant to Rule 144 under, the
Securities Act; and (ii) any other shares of Common Stock held by an
Investor who is an affiliate (as such term if defined in Rule 12b-2
promulgated under the Exchange Act) of Savvis.
"SAVVIS STOCK" means any shares of capital stock of Savvis.
"SAVVIS VOTING STOCK" means shares of Savvis Stock having the power to
vote generally for the election of directors of the Company.
"SECURITIES ACT" means the Securities Act of 1933 (or any successor
federal statute) and the rules and regulations of the Commission
thereunder, as the same shall be in effect at the time.
"TRANSFER" means, with respect to any Savvis Stock, the sale, transfer,
assignment, pledge, encumbrance, distribution or other disposition of such
securities.
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SECTION 2. Shares; Restrictions on Transfer; Legends. (a) Each Investor
owns or will own as of the Effective Date, the respective number of shares of
Common Stock and Preferred Stock and the Covered Warrant Common Shares set forth
opposite such Investor's name in Annex I.
(b) If any Investor shall Transfer any shares of Preferred Stock, then
within three days following the consummation of such Transfer, such Investor
shall deliver notice thereof to Savvis.
(c) Each Investor agrees that it will not effect any Transfer of any
shares of Restricted Stock unless such Transfer is (i) not prohibited pursuant
to the Certificate of Designations relating to the Preferred Stock and (ii) made
pursuant to an effective registration statement under the Securities Act or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act (and, in either case, in
compliance with all applicable state securities laws).
(d) Savvis agrees, and each Investor understands and consents, that
Savvis will not cause or permit the Transfer of any shares of Preferred Stock or
Restricted Stock to be made on its books (or on any register of securities
maintained on its behalf) unless the Transfer is permitted by, and has been made
in accordance with, (x) the terms of this Agreement and (y) all applicable
federal and state securities laws. Each Investor agrees that in connection with
any Transfer of Preferred Stock or Restricted Stock that is not made pursuant to
a registered public offering, Savvis may request an opinion of legal counsel
reasonably acceptable to Savvis (it being agreed that Reboul, MacMurray, Xxxxxx,
Xxxxxxx & Kristol shall be satisfactory) for the transferring Investor stating
that such transaction is exempt from registration under all applicable laws;
provided, however, that no such opinion shall be required in the case of a
Transfer by any Investor to its affiliates or, if any such entity is a
partnership or limited liability company, a transfer by any Investor or its
affiliates to its partners or members. Any Transfer of Preferred Stock or
Restricted Stock other than in accordance with this Section will be void.
(e) From and after the date hereof (and until such time as such
securities have been sold to the public pursuant to an effective registration
statement under the Securities Act or pursuant to Rule 144 or the holder of such
securities shall have requested the issuance of new certificates in writing and
delivered to Savvis an opinion of legal counsel reasonably acceptable to Savvis
(it being agreed that Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol shall be
satisfactory) to such effect) all certificates representing shares of Preferred
Stock or Restricted Stock that are held by any Investor shall bear legends which
shall state the following:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR ANY
APPLICABLE STATE LAW, AND NO INTEREST HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, DISTRIBUTED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A)
THERE IS AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER
SAID ACT AND LAWS OR (B) SUCH TRANSACTION IS EXEMPT FROM SUCH
REGISTRATION.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF AN INVESTOR RIGHTS AGREEMENT AMONG THE ISSUER AND THE
OTHER PARTIES THERETO. COPIES OF SUCH AGREEMENT MAY BE OBTAINTED AT NO COST
BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
ISSUER."
SECTION 3. Registration Rights.
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(a) Demand Registration Rights. If Savvis shall at any time after the
Effective Date, be requested by WCAS, Reuters, any Other Investor constituting
an Eligible Investor or the holders of at least 25% of the Covered Warrant
Common Shares in a writing that states the number of shares of Restricted Stock
to be sold and the intended method of disposition thereof (each such written
request, a "DEMAND NOTICE"), to effect a registration under the Securities Act
of all or any portion of the Restricted Stock then held by such person, Savvis
shall immediately notify in writing (each such notice, a "DEMAND FURTHER
NOTICE") each other Investor (other than the requesting Investor) of such
proposed registration and shall use its reasonable best efforts to register
under the Securities Act (each such registration, a "DEMAND REGISTRATION"), for
public sale in accordance with the method of disposition specified in such
Demand Notice, the number of shares of Restricted Stock specified in such Demand
Notice (plus the number of shares of Restricted Stock specified in any written
requests for registration of shares of Restricted Stock that are received from
other Investors (other than the requesting Investors) within 30 days after
receipt by such other Investors of a Demand Further Notice). Notwithstanding
anything to the contrary contained herein, Savvis shall not be obligated
pursuant to this paragraph (a) to file and cause to become effective (i) more
than two Demand Registrations in the aggregate requested by WCAS or its
Permitted Transferees, two Demand Registrations in the aggregate requested by
Reuters or its Permitted Transferees, two Demand Registrations in aggregate
requested by Other Investors constituting Eligible Investors, and one Demand
Registration by holders of the Covered Warrant Common Shares or (ii) any Demand
Registration with a proposed aggregate offering price of less than $25.0
million.
(b) Additional Short-Form Registration Rights. If Savvis becomes
eligible to use Form S-3 or a successor form, Savvis shall use its reasonable
best efforts to continue to qualify at all times for registration on Form S-3 or
such successor form. If (x) Savvis is eligible to register shares of Common
Stock on Form S-3 or a successor form and (y) it is requested by WCAS or any
Other Investor or Other Investors, in a writing that states the number of shares
of Restricted Stock to be sold and the intended method of disposition thereof
(each such written request, a "SHORT FORM REGISTRATION NOTICE"), to effect a
registration on Form S-3 or such successor form (a "SHORT FORM REGISTRATION") of
all or any portion of the Restricted Stock then held by such requesting
Investor, Savvis shall immediately notify in writing (each such notice, a "SHORT
FORM FURTHER NOTICE") each other Investor (other than the requesting Investor)
of such proposed registration and shall use its reasonable best efforts to
register on Form S-3 or such successor form, for public sale in accordance with
the method of disposition specified in such Short Form Registration Notice, the
number of shares of Restricted Stock specified in such Short Form Registration
Notice (plus the number of shares of Restricted Stock specified in any written
requests for registration of shares of Restricted Stock that are received from
other Investors (other than the requesting Investors) within 30 days after
receipt by such other Investors of a Short Form Further Notice); provided, no
Investor or group of Investors shall have the right to request a Short Form
Registration unless the proposed aggregate offering price (which shall be
specified in the Short Form Registration Notice delivered in connection
therewith) is at least $10.0 million.
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(c) Certain Provisions Relating to Required Registrations.
Notwithstanding anything to the contrary contained in this Agreement, Savvis
shall not be obligated to effect any registration under paragraph (a) or (b)
above except in accordance with the following provisions:
(i) the obligations of Savvis under paragraph (a) or (b) above, as the
case may be, to effect a registration shall be deemed satisfied only when a
registration statement covering all of the shares of Restricted Stock
specified in the applicable Demand Notice or Short Form Registration
Notice, as the case may be, for sale in accordance with the intended method
of disposition specified by the requesting Investors, shall have become
effective and, if such method of disposition is a firm commitment
underwritten public offering, all such shares of Restricted Stock shall
have been sold pursuant thereto;
(ii) so long as Savvis has provided written notice of a prior
registration statement to each Investor in compliance with paragraph (d)
below, Savvis shall not be obligated under paragraph (a) or (b) above to
file and cause to become effective any registration statement so long as
such written notice was received by Investors prior to the delivery of the
applicable Demand Notice or Short Form Registration Notice, as the case may
be (and such prior registration statement has not been withdrawn);
provided, Savvis shall not be permitted to delay a requested registration
under paragraph (a) or (b) above in reliance on this paragraph (c)(ii) more
than 180 days following the effective date of such prior registration
statement;
(iii) if the proposed method of disposition specified by the requesting
Investors shall be an underwritten public offering, the number of shares of
Restricted Stock to be included in such an offering may be reduced (pro
rata among the Investors seeking to include Restricted Stock in such
offering based on the number of shares of Restricted Stock so requested to
be registered by such Investors, it being understood that there will be no
such reduction of shares of Restricted Stock owned by Investors unless and
until such reduction is first applied against shares of Common Stock held
by stockholders of the Company who are not Investors and who, through other
contractual rights with the Company, determine to participate in any such
Demand Registration or Short Form Registration, and then applied to any
shares of Common Stock to be sold by the Company for its own account) if
and to the extent that, in the good faith opinion of the managing
underwriter of such offering, inclusion of all shares would adversely
affect the marketing (including, without limitation, the offering price) of
the Restricted Stock to be sold;
(iv) in the event that the proposed method of disposition specified by
the requesting Investors shall be an underwritten public offering, the
requesting Investors holding a majority of the Restricted Stock included in
such offering shall choose the managing underwriter (which shall be a
nationally recognized investment banking firm reasonably acceptable to the
Company);
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(v) Savvis shall be entitled to include in any registration referred to
in paragraph (a) or (b) above, as the case may be, for sale in accordance
with the method of disposition specified by the requesting Investors,
shares of Common Stock to be sold by Savvis for its own account, except as
and to the extent that, in the opinion of the managing underwriter of such
offering (if such method of disposition shall be an underwritten public
offering), such inclusion would adversely affect the marketing (including,
without limitation, the offering price) of the Restricted Stock to be sold;
(vi) except as provided in paragraph (c)(v) above, Savvis will not
effect any other registration of Common Stock, whether for its own account
or that of other holder(s) of Common Stock of Savvis, from the date of
receipt of a Demand Notice or the date of receipt of a Short Form
Registration Notice, as the case may be, for an underwritten public
offering until the completion of the period of distribution of the
registration contemplated thereby (determined as hereinafter provided);
(vii) if any Investor (other than the requesting Investor) requests
that some or all of such Investor's shares of Restricted Stock be included
in an offering initiated pursuant to paragraph (a) or (b) above, and the
registration is to be, in whole or in part, an underwritten public offering
of Common Stock, such request by such Investor shall specify that such
Investor's Restricted Stock is to be included in the underwriting on the
same terms and conditions as the shares of Restricted Stock otherwise being
sold through the underwriter; and
(viii) if, while a registration is pending, Savvis determines in good
faith that the filing of a registration statement would require the
disclosure of a material transaction or another set of material facts and
such disclosure would either have a material adverse effect on such
material transaction or Savvis and its subsidiaries (taken as a whole),
then Savvis shall not be required to effect a registration pursuant to
paragraph (a) or (b) above, as the case may be, until the earlier of (A)
the date upon which such material information is otherwise disclosed to the
public or ceases to be material and (B) 90 days after Savvis makes such
good faith determination; provided, Savvis shall not be permitted to delay
a requested registration under paragraph (a) or (b) above in reliance on
this paragraph (c)(viii) more than twice or for more than an aggregate of
90 days in any consecutive twelve-month period.
(d) Piggyback Registration Rights. If at any time Savvis proposes to
register any of its Common Stock under the Securities Act for sale to the
public, whether for its own account or for the account of other security holders
or both (other than a registration on Form S-4 or Form S-8 promulgated under the
Securities Act (or any successor forms thereto) or any other form not available
for registering the Restricted Stock for sale to the public), it will give
written notice (each such notice a "PIGGYBACK NOTICE") at such time to each
Investor of its intention to do so. Upon the written request of any Investor,
given within 30 days after receipt by such holder of the Piggyback Notice, to
register any of its Restricted Stock (which request shall state the amount of
Restricted Stock to be so registered and the intended method of disposition
thereof), Savvis will use its reasonable best efforts to cause the Restricted
Stock, as to which registration shall have been so requested, to be included in
the securities to be covered by the registration statement proposed to be filed
by Savvis, all to the extent requisite to permit the sale or other disposition
by such Investor (in accordance with its written request) of such Restricted
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Stock so registered; provided, nothing herein shall prevent Savvis from
abandoning or delaying such registration at any time. In the event that any
registration referred to in this paragraph (d) shall be, in whole or in part, an
underwritten public offering of Common Stock of Savvis, any request by an
Investor pursuant to this paragraph (d) to register Restricted Stock shall
specify either that (i) such Restricted Stock is to be included in the
underwriting on the same terms and conditions as the shares of Savvis Common
Stock otherwise being sold through underwriters under such registration or (ii)
such Restricted Stock is to be sold in the open market without any underwriting,
on terms and conditions comparable to those normally applicable to offerings of
Common Stock in reasonably similar circumstances. The number of shares of
Restricted Stock to be included in such an underwritten offering may be reduced
(x) if the stockholder or stockholders of Savvis requesting to have shares of
Restricted Stock included in a registration contemplated by this Section 3(d)
are Investors, pro rata among the requesting Investors based upon the number of
shares of Restricted Stock so requested to be registered or (y) if stockholders
of Savvis other than Investors also request to have their shares of Common Stock
included in a registration contemplated by this Section 3(d), pro rata among all
the requesting stockholders based upon the number of shares of Common Stock of
Savvis so requested to be registered, if and to the extent that the managing
underwriter of such offering shall be of the good faith opinion that such
inclusion would adversely affect the marketing (including, without limitation,
the offering price) of the securities to be sold by Savvis therein, or by the
other security holders for whose benefit the registration statements has been
filed.
(e) Holdback Agreement. Notwithstanding anything to the contrary
contained in this Agreement, (i) if there is a firm commitment underwritten
public offering of securities of Savvis pursuant to a registration covering
Restricted Stock and an Investor does not elect to sell his Restricted Stock to
the underwriters of Savvis's securities in connection with such offering, such
Investor shall refrain from selling such Restricted Stock during the period of
distribution (determined as hereinafter provided) of Savvis's securities by such
underwriters and the period in which the underwriting syndicate participates in
the after market; provided, such Investor shall, in any event, be entitled to
sell its Restricted Stock commencing on the 180th day after the effective date
of such registration statement; and (ii) if there is a firm commitment
underwritten public offering of securities of Savvis by Savvis, each Investor
agrees that, except to the extent otherwise permitted to participate in such
offering pursuant to paragraph (d) above, upon the request of the managing
underwriter in such offering, such Investor shall not sell Savvis Common Stock
held by such Investor for a period of 180 days from the effective date of the
registration statement relating thereto and such Investor shall execute a lockup
agreement in the form customarily used in such transactions.
(f) Certain Registration Procedures. If and whenever Savvis is required
by the provisions of this Section 3 to use its reasonable best efforts to effect
the registration of Restricted Stock under the Securities Act, Savvis will, as
expeditiously as possible:
(i) prepare (and afford counsel for the selling Investors reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement with respect to such securities and use its
reasonable best efforts to cause such registration statement to become and
remain effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
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(ii) prepare (and afford counsel for the selling Investors reasonable
opportunity to review and comment thereon) and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period of distribution
contemplated thereby (determined as hereinafter provided) and to comply
with the provisions of the Securities Act with respect to the disposition
of all Restricted Stock covered by such registration statement in
accordance with the selling Investors' intended method of disposition set
forth in such registration statement for such period;
(iii) furnish to each selling Investor and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including, without limitation, each preliminary prospectus) as
such persons may reasonably request in order to facilitate the public sale
or other disposition of the Restricted Stock covered by such registration
statement;
(iv) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the sellers of
Restricted Stock or, in the case of an underwritten public offering, the
managing underwriter, shall reasonably request; provided, Savvis will not
be required to (x) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph
(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any jurisdiction;
(v) immediately notify each selling Investor under such registration
statement and each underwriter, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and each
Investor agrees to refrain from further using such prospectus upon receipt
of such notice;
(vi) use its reasonable best efforts (if the offering is underwritten)
to furnish, at the request of any selling Investor, on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to such
registration: (A) an opinion dated such date of counsel representing Savvis
for the purposes of such registration, addressed to the underwriters and to
such selling Investor, stating that such registration statement has become
effective under the Securities Act and that (1) to the best knowledge of
such counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (2) the registration
statement, the related prospectus, and each amendment or supplement
thereof, comply as to form in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of the
Commission thereunder (except that such counsel need express no opinion as
to financial statements, the notes thereto, and the financial schedules and
other financial and statistical data contained therein) and (3) to such
other effects as may reasonably be requested by counsel for the
underwriters, and (B) a letter dated such date from the
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independent public accountants retained by Savvis, addressed to the
underwriters, stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of Savvis included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including, without
limitation, information as to the period ending no more than five business
days prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters may
reasonably request; and
(vii) make available for inspection by any selling Investor, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such
selling Investor or its Permitted Transferee or underwriter, all financial
and other records, pertinent corporate documents and properties of Savvis,
and cause Savvis's officers, directors and employees to supply all
information reasonably requested by any such selling Investor or its
Permitted Transferee, underwriter, attorney, accountant or agent in
connection with such registration statement and permit such selling
Investor, attorney, accountant or agent to participate in the preparation
of such registration statement.
For purposes of paragraphs (f)(i) and (f)(ii) above (as well as paragraphs
(c)(vi) and (e) above), the "PERIOD OF DISTRIBUTION" of Restricted Stock in a
firm commitment underwritten public offering shall be deemed to extend until
each underwriter has completed the distribution of all securities purchased by
it, and the period of distribution of Restricted Stock in any other registration
shall be deemed to extend until the sale of all Restricted Stock covered
thereby, but in either case, such period shall not extend beyond the 180th day
(or, in the case of paragraph (c)(vi) above, the 90th day) after the effective
date of the registration statement filed in connection therewith.
(g) Information From Selling Investors. In connection with each
registration hereunder, Investors selling Restricted Stock will furnish to
Savvis in writing such information with respect to themselves and the proposed
distribution by them as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
(h) Underwriting Agreement. In connection with any registration
pursuant to this Section 3 that covers an underwritten public offering, Savvis
and Investors selling Restricted Stock each agree to enter into a written
agreement with the managing underwriter selected in the manner herein provided
in such form and containing such provisions as are customary in the securities
business for such an arrangement between underwriters, selling stockholders and
companies of Savvis' size and investment stature; provided, (i) such agreement
shall not contain any such provision applicable to Savvis which is inconsistent
with the provisions hereof and (ii) the time and place of the closing under said
agreement shall be as mutually agreed upon among Savvis, such managing
underwriter and, except in the case of a registration pursuant to paragraph (d)
above, WCAS, if participating in such offering.
(i) Expenses. Savvis will pay all Registration Expenses incurred by it
in complying with Section 3 of this Agreement. All Selling Expenses incurred in
connection with any registered offering of securities pursuant to this Section
3, including Restricted Stock, shall
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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 and the reasonable fees and expenses of one counsel for all selling
securityholders, all fees and expenses incurred in connection with compliance
with state securities or blue sky laws and the rules of the NASD or any
securities exchange, transfer taxes and fees of transfer agents and registrars,
but excluding any Selling Expenses, are herein called "REGISTRATION EXPENSES".
All underwriting discounts and selling commissions applicable to the sale of
Restricted Stock are herein called "SELLING EXPENSES".
SECTION 4. Indemnification Rights and Obligations In Respect of Registered
---------------------------------------------------------------
Offerings of Restricted Stock.
-----------------------------
(a) Savvis Indemnification of Selling Investors. In the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Section 3 of this Agreement, Savvis will indemnify and hold harmless each seller
of Restricted Stock thereunder and each other person, if any, who controls such
seller within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, (or actions in respect thereof) to
which such seller or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such Restricted Stock was registered under the Securities
Act, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each such seller and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, Savvis
will not be liable in any such case if and to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by such seller or such controlling person
in writing specifically for use in such registration statement or prospectus.
(b) Selling Investor Indemnification of Savvis and the Other Selling
Stockholders. In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 3 of this Agreement, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify and
hold harmless Savvis and each person, if any, who controls Savvis within the
meaning of the Securities Act, each officer of Savvis who signs the registration
statement, each director of Savvis, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, and each
other seller of Restricted Stock and each person who controls any such other
seller of Restricted Stock, against all losses, claims, damages or liabilities,
joint or several, (or actions in respect thereof) to which Savvis or such
11
officer or director or underwriter or other seller or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse Savvis and each such officer,
director, underwriter, other seller of Restricted Stock and controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, such seller will be liable hereunder in any such case if and only to
the extent that any such loss, claim, damage, liability or action arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to Savvis by such
seller specifically for use in such registration statement or prospectus;
provided, further, the liability of each seller hereunder shall be limited to
the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not to exceed the proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Stock covered by such registration statement.
(c) Indemnification Procedures. Promptly after receipt by an
indemnified party hereunder of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party other than under this
Section 4. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 4 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party, or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. Notwithstanding the foregoing,
any indemnified party shall have the right to retain its own counsel in any such
action, but the fees and disbursements of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party shall have failed to
retain counsel for the indemnified person as aforesaid or (ii) the indemnifying
party and such
12
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
The indemnification of underwriters provided for in this Section 4 shall be on
such other terms and conditions as are at the time customary and reasonably
required by such underwriters. In that event the indemnification of the sellers
of Restricted Stock in such underwriting shall at the sellers' request be
modified to conform to such terms and conditions.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) of this Section 4 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of Savvis, on the one hand, and the
underwriters and the sellers of such Restricted Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including, without limitation, the failure to give any notice
under paragraph (c) above. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by Savvis, on the one hand, or the
underwriters and the sellers of such Restricted Stock, on the other, and to the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Savvis and each of the Investors
agree that it would not be just and equitable if contributions pursuant to this
paragraph were determined by pro rata allocation (even if all of the sellers of
such Restricted Stock were treated as one entity for such purpose) or by any
other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, the sellers of such
Restricted Stock shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Restricted Stock sold by
each of them was offered to the public exceeds the amount of any damages which
they would have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
SECTION 5. Rule 144. Savvis has filed and agrees with the Investors
that from and after the date hereof it shall continue to file any and all
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, or, if
Savvis is not required to file any such reports, it shall, upon the written
request of any Investor, make publicly available such information as is
necessary to
13
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. Nomination of Directors.
-----------------------
(a) Each Eligible Investor (other than Reuters or its transferees)
shall have the right to nominate for election to the Board of Directors that
number of directors (each, a "DESIGNATED DIRECTOR") determined in accordance
with the following formula: the total number of members of the Board of
Directors (which, as of the date of this Agreement is eight (8)) multiplied by
the percentage of the total voting power of all outstanding Savvis Voting Stock
represented by the Savvis Voting Stock owned by such Eligible Investor, rounded
down to the nearest whole number; provided that, in the event that WCAS and its
Affiliates collectively own of record Savvis Voting Stock representing more than
50% of the voting power represented by the then validly issued and outstanding
Savvis Voting Stock, the number of Designated Directors such Investors shall be
able to appoint shall not be less than a number that is at least half of the
members of the Board; and provided further that each such Eligible Investor will
be entitled to nominate at least one director for election to the Board in
accordance with this Section 6(a) so long as such Eligible Investor (and, solely
in the case of WCAS, together with its Affiliates) owns of record Savvis Voting
Stock representing at least five percent (5%) of the total voting power of all
outstanding Savvis Voting Stock.
(b) In the event that any Investor ceases to be such an Eligible
Investor or otherwise ceases to own a sufficient number of shares of Savvis
Voting Stock to entitle it to nominate the number of directors it then has on
the Board of Directors, such Investor shall use its best efforts promptly to
cause the resignation of one or more of its Designated Director(s) from the
Board of Directors and, if such resignation is not obtained, to vote its shares
of Savvis Voting Stock in favor of the removal of one or more of its Designated
Director(s) from the Board of Directors, in each case so that the number of
Designated Directors, if any, of such Investor shall be consistent with such
Investor's rights under Section 6(a).
(c) The Investors and Savvis hereby further agree that in the event a
Designated Director shall cease to serve as a director of Savvis, the vacancy
resulting therefrom (including a vacancy on any committee of the Board of
Directors) will be filled promptly by the Board or the stockholders of Savvis,
as the case may be, in each case as provided in the Bylaws of the Company, with
a substitute Designated Director nominated pursuant to Section 6(d) below.
(d) The selection of a substitute Designated Director to fill a vacancy
on the Board of Directors shall be made as follows:
(1) in the event the vacancy has been created by the resignation
or removal of the Designated Director of an Eligible Investor pursuant to
Section 6(b), the substitute Designated Director shall be selected by the
remaining members of the Board of Directors, or, if another Eligible
Investor has replaced the Eligible Investor whose Designated Director has
resigned or been removed, then such other Eligible Investor shall select
the substitute Designated Director.
14
(2) in the event the vacancy has been created other than by reason
of the resignation or removal of the Designated Director of an Eligible
Investor pursuant to Section 6(b), the substitute Designated Director shall
be selected by the Eligible Investor who nominated the director whose
position is to be filled.
(e) Savvis agrees subject to fiduciary obligations to take all actions
necessary to cause the terms of Section 6(a) to be affected in accordance with
their terms.
(f) The provisions of this Section 6 shall continue in force and effect
until the earlier to occur of (i) the date on which no shares of Preferred Stock
are outstanding and (ii) the date on which there are no Eligible Investors.
SECTION 7. Preemptive Rights.
-----------------
(a) Savvis hereby grants to each Eligible Investor a right (the
"PREEMPTIVE RIGHT") to purchase all or any part of its Pro Rata Share of any
amount of New Capital Stock that Savvis may, from time to time, propose to sell
and issue.
(b) In the event that Savvis proposes to undertake an issuance of New
Capital Stock, it shall give each Eligible Investor written notice (the
"PREEMPTIVE RIGHT NOTICE") of its intention, describing the type of New Capital
Stock, the price, and the material terms and conditions upon which Savvis
proposes to issue the same to any Person. Such Eligible Investor shall have 20
business days after issuance of the Preemptive Right Notice to agree to purchase
all or any portion of its Pro Rata Share of such amount of New Capital Stock at
the price and upon the terms specified in the notice (which terms shall be no
less favorable than those offered to any third party purchaser) by giving
written notice to Savvis and stating therein the quantity of New Capital Stock
to be purchased.
(c) In the event that any shares of New Capital Stock subject to the
Preemptive Right are not purchased by an Eligible Investor within the period
specified above, Savvis shall have 90 days thereafter to sell (or enter into an
agreement pursuant to which the sale of New Capital Stock that had been subject
to the Preemptive Right shall be closed, if at all, within 45 days from the date
of said agreement) the New Capital Stock with respect to which the rights of all
of the Eligible Investors were not exercised at a price and upon terms and
conditions, including manner of payment, no more favorable to the purchasers
thereof than specified in the Preemptive Right Notice. In the event Savvis has
not sold all offered New Capital Stock within such 90 day period (or sold and
issued New Capital Stock in accordance with the foregoing within 45 days from
the date of such agreement) Savvis shall not thereafter issue or sell any New
Capital Stock, without first offering a portion of such New Capital Stock to the
Eligible Investors in the manner provided above in this Section 7.
(d) The provisions of this Section 7 shall continue in force and effect
until the earlier to occur of (i) the date on which no shares of Preferred Stock
are outstanding and (ii) the date on which there are no Eligible Investors.
SECTION 8. Effectiveness. Notwithstanding anything herein to the
contrary, the rights and obligations of the Investors set forth in this
Agreement (other than Nortel Networks) shall not be effective until the
Effective Date. To the extent the Effective Date shall
15
not have occurred prior to March 31, 2002 or the Purchase Agreement shall have
otherwise been terminated, this Agreement shall be automatically terminated and
of no further force or effect with respect to all Investors other than Nortel
Networks. This Agreement shall be effective between the Company and Nortel
Networks on the date the Company issues a Warrant to Nortel Networks, which date
shall then be considered the "Effective Date."
SECTION 9. Duration of Agreement. Unless otherwise set forth in this
Agreement, the provisions of this Agreement shall survive so long as any
Investor owns Restricted Stock.
SECTION 10. Joinder. The Investors and the Company agree that any
Person who becomes a party to the Purchase Agreement in accordance with Section
8.11 thereof will automatically become a party to this Agreement and for all
purposes be considered an "Other Investor" hereunder. In addition, upon the
express written consent of WCAS and the Company, any other holder of Preferred
Stock may become a party to this Agreement and be considered an "Other Investor"
hereunder to the extent such other holder agrees in writing to become a party to
this Agreement and to assume the rights and obligations of an Other Investor
hereunder.
SECTION 11. Representations and Warranties. Each party hereto,
severally and not jointly, represents and warrants to the other parties hereto
as follows:
(i) such party has the corporate or partnership power and authority, as
the case may be, to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by such
party of this Agreement have been duly authorized by all requisite
corporate or partnership action, as the case may be, on the part of such
party and will not (i) violate any provision of law, any order of any court
or other agency of government, the charter and other organizational
documents of such party, or any provision of any indenture, agreement or
other instrument by which such party or any of such party's properties or
assets is bound; (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument; or (iii) result in the creation
or imposition of any lien, charge or encumbrance of any nature upon any of
the properties or assets of such party; and
(ii) this Agreement has been duly executed and delivered by such party
and constitutes a legal, valid and binding agreement of such party,
enforceable against such party in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in effect
affecting the enforcement of creditors' rights generally and to general
principles of equity.
SECTION 12. Miscellaneous.
-------------
(a) Additional Registration Rights. Without the prior written consent
of WCAS, Reuters and each Other Investor (so long as such Person holds any
Restricted Stock representing 5% of the outstanding Savvis Voting Stock), Savvis
shall not grant any registration rights to any other person that are
inconsistent or conflict with the registration rights granted hereunder,
including, without limitation, rights to participate in a Demand Registration
which could result in
16
reduction (on a pro rata or other basis) in the number of shares of Common Stock
held by WCAS or its Permitted Transferees, Reuters or any Other Investor, as
applicable, to be included in any underwritten offering made in respect of such
Demand Registration.
(b) Headings. Headings of sections and paragraphs of this Agreement are
inserted for convenience of reference only and shall not affect the
interpretation or be deemed to constitute a part hereof.
(c) Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein shall,
for any reason, be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement.
(d) Benefits of Agreement. All covenants and agreements contained
herein by or on behalf of any of the parties hereto shall bind and inure solely
and exclusively to the benefit of the respective successors and permitted
assigns of the parties hereto. Except as expressly permitted hereby, each
party's rights and obligations under this Agreement shall not be subject to
assignment or delegation by any party hereto, and any attempted assignment or
delegation in violation hereof shall be null and void. Notwithstanding anything
to the contrary contained in this Agreement, each Investor will be entitled to
assign all or any portion of its rights and obligations under this Agreement to
a transferee of Restricted Stock or Preferred Stock (to the extent permitted or
not prohibited by Section 2) held by such Investor (each such transferee, a
"PERMITTED TRANSFEREE") which Permitted Transferee shall be treated as a party
to this Agreement with the same rights and obligations as such transferring
Investor; provided, however, that (i) any such Permitted Transferee shall agree
to be bound by this Agreement and (ii) the rights of Investors (other than
Nortel Networks and GECC) under Section 3(a) will not be transferable to or
exercisable by a Permitted Transferee unless such Permitted Transferee purchases
and continues to hold Restricted Stock representing at least five (5%) (on a
fully diluted basis) of the voting capital stock of Savvis.
(e) Entire Agreement; Termination of Existing Agreements. This
Agreement and the Purchase Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof. The parties hereto agree that
from and after the date hereof, each of the Existing Rights Agreements and any
other registration rights agreement to which any of the Investors and the
Company are a party, shall be terminated and of no further force or effect, with
neither Savvis nor any Investor retaining any rights or obligations pursuant to
such agreements. The parties acknowledge that this Agreement shall not terminate
or otherwise amend or change the side letter between Reuters and the Company,
dated May 16, 2001, relating to Board of Director observer rights and other
matters.
(f) Modification. This Agreement may not be modified or amended except
by a writing signed by Savvis, WCAS, Reuters and each Other Investor (so long as
such Person holds Restricted Stock representing 5% of the outstanding Savvis
Voting Stock); provided that this Agreement may not be so amended in any manner
that disproportionately adversely affects the rights or obligations of any
Investor unless the consent of such Investor is obtained in writing prior to the
effectiveness of such amendment. Any waiver of any provision of this Agreement
must be in a writing signed by the party against whom enforcement of such waiver
is sought.
17
(g) Notices. Any notice or other communications required or permitted
hereunder shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by national overnight courier service, by first
class certified mail, postage prepaid, or by facsimile (followed by delivery by
overnight courier) addressed to such party at the address or facsimile number
set forth on the signature pages hereto or, in any case, at such other address
or facsimile number as shall have been furnished in writing by such party to the
other parties hereto. All such notices, requests, consents and other
communications shall be deemed to have been received (1) in the case of personal
or courier delivery, on the date of such delivery, (2) in the case of mailing,
on the fifth business day following the date of such mailing and (3) in the case
of facsimile, when received.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(i) Changes in Common Stock of Savvis. If, and as often as, there are
any changes in the Common Stock of Savvis by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof as may be required so that the
rights and privileges granted hereby shall continue with respect to the
Restricted Stock as so changed.
(j) Specific Performance. Each party hereto agrees that a remedy at law
for any breach or threatened breach by such party of this Agreement would be
inadequate and therefore agrees that any other party hereto shall be entitled to
specific performance of this Agreement in addition to any other available rights
and remedies in case of any such breach or threatened breach.
(k) Binding Effect. Anything herein to the contrary notwithstanding, it
is hereby expressly agreed and understood by each of the parties hereto that
this Agreement shall be a binding obligation of the Company with regard to each
Investor executing this Agreement, and a binding obligation of each Investor
executing this Agreement with regard to the Company, in each case in accordance
to with the terms hereof. The failure or refusal of any Investor to execute this
Agreement shall in no way negate, relieve, invalidate or otherwise affect the
rights and obligations of the Company and each Investor executing this Agreement
as set forth herein.
(l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
* * * * *
18
IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Agreement as of the day and year first above written.
SAVVIS:
SAVVIS COMMUNICATIONS CORPORATION
a Delaware Corporation
By /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: EVP and CFO
Address: 00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
19
WCAS INVESTORS:
WELSH, CARSON, XXXXXXXX
& XXXXX VIII, L.P.
By WCAS VIII Associates LLC,
General Partner
By /s/ Xxxxxxxx X. Rather
------------------------------------
Name: Xxxxxxxx X. Rather
Title: Managing Member
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxx
Facsimile: (000) 000-0000
WELSH, CARSON, XXXXXXXX &
XXXXX VII, L.P.
By WCAS VII Partners L.P.,
General Partner
By /s/ Xxxxxxxx X. Rather
------------------------------------
General Partner
WELSH, CARSON, XXXXXXXX &
XXXXX VI, L.P.
By WCAS VI Partners L.P.,
General Partner
By /s/ Xxxxxxxx X. Rather
------------------------------------
Attorney-in-Fact
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
20
WCAS MANAGEMENT CORPORATION
By /s/ Xxxxxxxx X. Rather
------------------------------------
Xxxxxxxx X. Rather
Treasurer
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
XXX FBO Xxxxx X. Xxxxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
Estate of Xxxxxxx Xxxxxx
X. Xxxxx Xxxxxxx
Xxxxxx Xxxxx
XXX FBO Xxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxx
XXX FBO Xxxxxxxx X. Rather
Xxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxx Xxxxx
By /s/ Xxxxxxxx X. Rather
------------------------------------
Xxxxxxxx X. Rather
Individually and as Attorney-in-Fact
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
21
XXXXXX XXXXXXXX TRUST
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
Address: x/x Xxxxx, Xxxxxx,
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
XXXXXXX XXXXXXXX TRUST
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
Address: x/x Xxxxx, Xxxxxx,
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
XXXX XXXXXXXX TRUST
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
Address: x/x Xxxxx, Xxxxxx,
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
22
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23
REUTERS:
REUTERS HOLDINGS SWITZERLAND SA
By /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Attorney-in-Fact
Address: The Reuters Building
0 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
24
OTHER INVESTORS:
NORTEL NETWORKS INC.
By /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Director, Customer Finance
Address: GMS 991 15 A4D
000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx X. Day, Vice President,
Customer Finance, North America
Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 00 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
25
[INSERT SIGNATURE BLOCKS FOR ANY
OTHER INVESTORS THAT HOLD PREFERRED
STOCK AND BECOME A PARTY TO THIS
AGREEMENT]
26
ANNEX I
Number of Number of Number of
Preferred Common Covered
Name of Investor Shares Shares Warrant Shares
---------------- --------- --------- --------------
Investors:
WCAS Investors
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. 97,857 6,250,000
Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P. 5,952 3,475,566
Welsh, Carson, Xxxxxxxx & Xxxxx VI, L.P. 7,939 4,635,958
Xxxxxxx Xxxxxx 916 38,476
Xxxxx Xxxxxxxx 964 50,106
XXX-Xxxxx Xxxxxxxx 122 29,244
Xxxxxx Xxxxxxxx Trust 10 2,434
Xxxxxxx Xxxxxxxx Trust 10 2,434
Xxxx Xxxxxxxx Trust 10 2,434
Xxxxxx Xxxx 668 22,447
Xxxxxx Xxxxxxxxx 292 29,235
Xxxxxxx xx Xxxxxx 126 9,755
Xxxx Xxxxxxx 26 2,174
Xxxxxxxx Xxxxxx 85
Estate of Xxxxxxx Xxxxxx 6 3,113
D. Xxxxx Xxxxxxx 8
Xxxxxx Xxxxx 8
XXX FBO Xxxxx X. Xxxxxxxx 8
Xxxx Xxxxx 8
Xxxx Xxxxxxx 8
Xxxx Xxxxxxx 8
Xxxx Xxx 3
XXX FBO Xxxxxxxx X. Rather 8
WCAS Management Corporation 2,017
Xxxxx Xxxxxx (XXX) 54 1,787
Xxxxxxx Xxxxx 81 19,470
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Number of Number of Number of
Preferred Common Covered
Name of Investor Shares Shares Warrant Shares
---------------- --------- --------- --------------
Xxxxx Xxx Xxxxx 6 1,335
Other Investors
Reuters Holdings Switzerland SA 40,870
Nortel Networks Inc. 6,431,505
General Electric Capital Corporation 9,647,258
TOTAL ........................................ 158,070 14,575,968 16,078,763
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