EXHIBIT 10.41
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 20, 2001,
among SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation ("Savvis"),
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P., a Delaware limited partnership
("WCAS "), WCAS MANAGEMENT CORPORATION ("WCAS Management"), and the several
other persons affiliated with WCAS listed on the signature pages hereto (the
"WCAS Persons"). WCAS, WCAS Management, the WCAS Persons and their successors
and permitted assigns are hereinafter sometimes collectively called the
"Investors".
W I T N E S S E T H:
WHEREAS, WCAS and Bridge Information Systems, Inc., a Missouri
corporation ("Bridge") are parties to a Stock Purchase Agreement, dated as of
February 7, 2000 (the "February 2000 Purchase Agreement"), pursuant to which
Bridge sold to WCAS 6,250,000 shares (the "February 2000 Common Shares") of
Common Stock. $.01 par value ("Savvis Common Stock"), of Savvis determined in
accordance with Section 1 thereof, on the terms and conditions set forth
therein;
WHEREAS, in order to induce WCAS to enter into the February
2000 Purchase Agreement and consummate the transactions contemplated thereby,
Bridge and Savvis granted to WCAS certain registration rights with respect to
the February 2000 Common Shares pursuant to the Registration Rights Agreement,
dated as of February 7, 2000 (the "Original Registration Rights Agreement"),
among Savvis, WCAS and Bridge;
WHEREAS, the WCAS Persons and Savvis are parties to a
Securities Purchase Agreement, dated as of the date hereof (the "February 2001
Purchase Agreement"), pursuant to which Savvis desires to sell to the WCAS
Persons, their successors and permitted assigns up to $20,000,000 aggregate
principal amount of 10% Convertible Senior Secured Notes of Savvis convertible
into such number of shares (the "February 2001 Common Shares" and collectively
with the February 2000 Common Shares, the "Savvis Common Shares") of Common
Stock determined according to Sections 15 (and subject to adjustment according
to Section 16) of such notes;
WHEREAS, in order to induce the WCAS Persons to enter into the
February 2001 Purchase Agreement and consummate the transactions contemplated
thereby, Savvis has agreed to grant the WCAS Persons certain registration rights
with respect to all of the Savvis Common Shares; and
WHEREAS, the execution of this Agreement is not intended to
amend, modify, change, restate or terminate the Original Registration Rights
Agreement and all rights and obligations of the parties under the Original
Registration Rights Agreement will continue to be of force and effect;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings set forth below:
"Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934 or
any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Restricted Stock" means, at any time, the Savvis Common
Shares and any shares of Savvis common stock issuable upon or issuable
with respect to the Savvis Common Shares by way of stock dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise, in each case only so long as such shares have not been sold
to the public pursuant to an effective registration statement under, or
pursuant to Rule 144 under, the Securities Act.
"Securities Act" means the Securities Act of 1933 (or any
successor federal statute) and the rules and regulations of the
Commission thereunder, as the same shall be in effect at the time.
"Transfer" means, with respect to any Restricted Stock, the
sale, transfer, assignment, pledge, encumbrance, distribution or other
disposition of such securities.
SECTION 2. Transfers of Restricted Stock.
(a) Notice of Transfer. If any Investor shall Transfer any
shares of Restricted Stock, notice of which Transfer is not otherwise required
to be delivered to Savvis hereunder, then within three days following the
consummation of such Transfer, such Investor shall deliver notice thereof to
Savvis.
(b) Securities Law Compliance. Each Investor agrees that it
will not effect any Transfer of any shares of Restricted Stock unless such
Transfer is made pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act (and, in either case, in
compliance with all applicable state securities laws). Savvis agrees, and each
Investor understands and consents, that Savvis will not cause or permit the
Transfer of any shares of Restricted Stock to be made on its books (or on any
register of securities maintained on its behalf) unless the Transfer is
permitted by, and has been made in accordance with, (x) the terms of this
Agreement and (y) all applicable federal and state securities laws. Each
Investor agrees that in connection with any Transfer of Restricted Stock that is
not made pursuant to a registered public offering, Savvis may request an opinion
of legal counsel reasonably acceptable to Savvis (it being agreed that Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol and Xxxxxxx Xxxx & Xxxxx
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LLP shall be satisfactory) for the transferring Investor stating that such
transaction is exempt from registration under all applicable laws; provided,
however, that no such opinion shall be required in the case of a transfer by any
Investor to its affiliates or, if any such entity is a partnership or limited
liability company, a transfer by any Investor or its affiliates to its partners
or members.
(c) Securities Act Legend For Certificates. From and after the date
hereof (and until such time as such securities have been sold to the public
pursuant to an effective registration statement under the Securities Act or
pursuant to Rule 144 or the holder of such securities shall have requested the
issuance of new certificates in writing and delivered to Savvis an opinion of
legal counsel reasonably acceptable to Savvis (it being agreed that Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol and Xxxxxxx Xxxx & Xxxxx LLP shall be
satisfactory) to such effect) all certificates representing shares of Restricted
Stock that are held by any Investor shall bear a legend which shall state the
following:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR ANY APPLICABLE STATE
LAW, AND NO INTEREST HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
DISTRIBUTED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER SAID ACT
AND LAWS OR (B) SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION."
SECTION 3. Registration Rights.
(a) Demand Registration Rights. Subject to paragraph (j) below, if
Savvis shall at any time be requested by Investors holding a majority in
interest of the Restricted Stock, in a writing that states the number of shares
of Restricted Stock to be sold and the intended method of disposition thereof
(each such written request, a "Demand Notice"), to effect a registration under
the Securities Act of all or any portion of the Restricted Stock then held by
such requesting Investors, Savvis shall immediately notify in writing (each such
notice, a "Demand Further Notice") each other Investor (other than the
requesting Investors) of such proposed registration and shall use its reasonable
best efforts to register under the Securities Act (each such registration, a
"Demand Registration"), for public sale in accordance with the method of
disposition specified in such Demand Notice, the number of shares of Restricted
Stock specified in such Demand Notice (plus the number of shares of Restricted
Stock specified in any written requests for registration of shares of Restricted
Stock that are received from other Investors (other than the requesting
Investors) within 30 days after receipt by such other Investors of a Demand
Further Notice). Savvis shall not be obligated pursuant to this paragraph (a) to
file and cause to become effective more than two Demand Registrations.
(b) Additional Short-Form Registration Rights. If Savvis becomes
eligible to use Form S-3 or a successor form, Savvis shall use its reasonable
best efforts to continue to qualify at all times for registration on Form S-3 or
such successor form. Subject to paragraph (j) below, if (x) Savvis is eligible
to register shares of Savvis Common Stock on Form S-3 or a successor form and
(y) it is requested by any Investor, in a writing that states the number of
shares of
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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 Further Notice, the
number of shares of Restricted Stock specified in such Short Form Further Notice
(plus the number of shares of Restricted Stock specified in any written requests
for registration of shares of Restricted Stock that are received from other
Investors (other than the requesting Investor) within 30 days after receipt by
such other Investors of a Savvis Short Form Registration Notice); provided, no
Investor or group of Investors shall have the right to request a Short Form
Registration unless the proposed aggregate net proceeds to the requesting
Investor(s) (which shall be specified in the Short Form Registration Request
delivered in connection therewith) exceeds $5,000,000.
(c) Certain Provisions Relating to Required Registrations.
Notwithstanding anything to the contrary contained in this Agreement, Savvis
shall not be obligated to effect any registration under paragraph (a) or (b)
above except in accordance with the following provisions:
(i) the obligations of Savvis under paragraph (a) or (b) above, as the
case may be, to effect a registration shall be deemed satisfied only when a
registration statement covering all of the shares of Restricted Stock
specified in the applicable Demand Notice or Short Form Registration
Notice, as the case may be, for sale in accordance with the intended method
of disposition specified by the requesting Investors, shall have become
effective and, if such method of disposition is a firm commitment
underwritten public offering, all such shares of Restricted Stock shall
have been sold pursuant thereto;
(ii) so long as Savvis has provided written notice of a prior
registration statement to each Investor in compliance with paragraph (d)
below, Savvis shall not be obligated under paragraph (a) or (b) above to
file and cause to become effective any registration statement so long as
such prior registration statement (other than a registration statement on
Form S-4 or Form S-8 promulgated under the Securities Act (or any successor
forms thereto) or any other form not available for registering the
Restricted Stock for sale to the public) pursuant to which shares of common
stock of Savvis are to be (or were to be) sold to the public was filed
prior to the delivery of the applicable Demand Notice or Short Form
Registration Notice, as the case may be (and such prior registration
statement has not been withdrawn); provided, Savvis shall not be permitted
to delay a requested registration under paragraph (a) or (b) above in
reliance on this paragraph (c)(ii) more than 180 days following the
effective date of such prior registration statement;
(iii) if the proposed method of disposition specified by the requesting
Investors shall be an underwritten public offering, the number of shares
of Restricted Stock to be included in such an offering may be reduced (pro
rata among the Investors seeking to include Restricted Stock in such
offering based on the number of shares of Restricted Stock
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so requested to be registered by such Investors) if and to the extent that,
in the good faith opinion of the managing underwriter of such offering,
inclusion of all shares would adversely affect the marketing (including,
without limitation, the offering price) of the Restricted Stock to be sold;
(iv) in the event that the proposed method of disposition specified by
the requesting Investors shall be an underwritten public offering, Savvis
shall choose the managing underwriter (which shall be a nationally
recognized investment banking firm reasonably acceptable to the (A) the
requesting Investors and (B) Investors holding a majority of the Restricted
Stock being sold in such offering);
(v) Savvis shall be entitled to include in any registration referred to
in paragraph (a) or (b) above, as the case may be, for sale in accordance
with the method of disposition specified by the requesting Investors,
shares of common stock of Savvis to be sold by Savvis for its own account,
except as and to the extent that, in the opinion of the managing
underwriter of such offering (if such method of disposition shall be an
underwritten public offering), such inclusion would adversely affect the
marketing (including, without limitation, the offering price) of the
Restricted Stock to be sold;
(vi) except as provided in paragraph (c)(v) above, Savvis will not
effect any other registration of its common stock, whether for its own
account or that of other holder(s) of common stock of Savvis, from the date
of receipt of a Demand Notice or the date of receipt of a Short Form
Registration Notice, as the case may be, until the completion of the period
of distribution of the registration contemplated thereby;
(vii) if any Investor (other than the requesting Investors) requests
that some or all of such Investor's shares of Restricted Stock be included
in an offering initiated pursuant to paragraph (a) or (b) above, and the
registration is to be, in whole or in part, an underwritten public offering
of common stock, such request by such other Investor shall specify that
such Investor's Restricted Stock is to be included in the underwriting on
the same terms and conditions as the shares of Restricted Stock otherwise
being sold through the underwriter; and
(viii) if, while a registration is pending, Savvis determines in good
faith that the filing of a registration statement would require the
disclosure of a material transaction or another set of material facts and
such disclosure would either have a material adverse effect on such
material transaction or Savvis and its subsidiaries (taken as a whole),
then Savvis shall not be required to effect a registration pursuant to
paragraph (a) or (b) above, as the case may be, until the earlier of (A)
the date upon which such material information is otherwise disclosed to the
public or ceases to be material and (B) 90 days after Savvis makes such
good faith determination; provided, Savvis shall not be permitted to delay
a requested registration under paragraph (a) or (b) above in reliance on
this paragraph (c)(viii) more than twice or for more than an aggregate of
90 days in any consecutive twelve-month period.
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(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. Subject to paragraph (j) below, upon the
written request of any Investor, given within 30 days after receipt by such
holder of the Piggyback Notice, to register any of its Restricted Stock (which
request shall state the amount of Restricted Stock to be so registered and the
intended method of disposition thereof), Savvis will use its reasonable best
efforts to cause the Restricted Stock, as to which registration shall have been
so requested, to be included in the securities to be covered by the registration
statement proposed to be filed by Savvis, all to the extent requisite to permit
the sale or other disposition by such Investor (in accordance with its written
request) of such Restricted Stock so registered; provided, nothing herein shall
prevent Savvis from abandoning or delaying such registration at any time. In the
event that any registration referred to in this paragraph (d) shall be, in whole
or in part, an underwritten public offering of common stock of Savvis, any
request by an Investor pursuant to this paragraph (d) to register Restricted
Stock shall specify either that (i) such Restricted Stock is to be included in
the underwriting on the same terms and conditions as the shares of Savvis common
stock otherwise being sold through underwriters under such registration or (ii)
such Restricted Stock is to be sold in the open market without any underwriting,
on terms and conditions comparable to those normally applicable to offerings of
common stock in reasonably similar circumstances. The number of shares of
Restricted Stock to be included in such an underwritten offering may be reduced
(pro rata among the requesting Investors based upon the number of shares of
Restricted Stock so requested to be registered or pro rata among all the
requesting stockholders based upon the number of shares of common stock of
Savvis so requested to be registered if stockholders other than Investors also
request to be included) if and to the extent that the managing underwriter of
such offering shall be of the good faith opinion that such inclusion would
adversely affect the marketing (including, without limitation, the offering
price) of the securities to be sold by Savvis therein, or by the other security
holders for whose benefit the registration statements has been filed.
(e) Holdback Agreement. Notwithstanding anything to the contrary
contained in this Agreement, (i) if there is a firm commitment underwritten
public offering of securities of Savvis pursuant to a registration covering
Restricted Stock and an Investor does not elect to sell his Restricted Stock to
the underwriters of Savvis's securities in connection with such offering, such
Investor shall refrain from selling such Restricted Stock during the period of
distribution of Savvis's securities by such underwriters and the period in which
the underwriting syndicate participates in the after market; provided, such
Investor shall, in any event, be entitled to sell its Restricted Stock
commencing on the 180th day after the effective date of such registration
statement; and (ii) if there is a firm commitment underwritten public offering
of securities of Savvis by Savvis, each Investor agrees that, except to the
extent otherwise permitted to participate in such offering pursuant to paragraph
(d) above, upon the request of the managing underwriter in such offering, such
Investor shall not sell Savvis Common Stock held by such Investor for a period
of 180 days from the effective date of the registration statement relating
thereto.
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(f) Certain Registration Procedures. If and whenever Savvis is required
by the provisions of this Section 3 to use its reasonable best efforts to effect
the registration of Restricted Stock under the Securities Act, Savvis will, as
expeditiously as possible:
(i) prepare (and afford counsel for the selling Investors reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement with respect to such securities and use its
reasonable best efforts to cause such registration statement to become and
remain effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(ii) prepare (and afford counsel for the selling Investors reasonable
opportunity to review and comment thereon) and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period of distribution
contemplated thereby (determined as hereinafter provided) and as comply
with the provisions of the Securities Act with respect to the disposition
of all Restricted Stock covered by such registration statement in
accordance with the selling Investors' intended method of disposition set
forth in such registration statement for such period;
(iii) furnish to each selling Investor and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including, without limitation, each preliminary prospectus) as
such persons may reasonably request in order to facilitate the public sale
or other disposition of the Restricted Stock covered by such registration
statement;
(iv) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the sellers of
Restricted Stock or, in the case of an underwritten public offering, the
managing underwriter, shall reasonably request; provided, Savvis will not
be required to (x) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph
(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any jurisdiction;
(v) immediately notify each selling Investor under such registration
statement and each underwriter, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and each
Investor agrees to refrain from further using such prospectus upon receipt
of such notice;
(vi) use its reasonable best efforts (if the offering is underwritten)
to furnish, at the request of any selling Investor, on the date that
Restricted Stock is delivered to the
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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 or
by such selling Investor or its counsel, and (B) a letter dated such date
from the independent public accountants retained by Savvis, addressed to
the underwriters, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of Savvis included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including, without
limitation, information as to the period ending no more than five business
days prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters or such
selling Investor may reasonably request; and
(vii) make available for inspection by each selling Investor, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such
selling Investor or underwriter, all financial and other records, pertinent
corporate documents and properties of Savvis, and cause Savvis's officers,
directors and employees to supply all information reasonably requested by
any such selling Investor, underwriter, attorney, accountant or agent in
connection with such registration statement and permit such selling
Investor, attorney, accountant or agent to participate in the preparation
of such registration statement.
For purposes of paragraphs (f)(i) and (f)(ii) above (as well as paragraphs
(c)(vi) and(e) above), the "period of distribution" of Restricted Stock in a
firm commitment underwritten public offering shall be deemed to extend until
each underwriter has completed the distribution of all securities purchased by
it, and the period of distribution of Restricted Stock in any other registration
shall be deemed to extend until the sale of all Restricted Stock covered
thereby, but in either case, such period shall not extend beyond the 180th day
(or, in the case of paragraph (c)(vi) above, the 90th day) after the effective
date of the registration statement filed in connection therewith.
(g) Information From Selling Investors. In connection with each
registration hereunder, Investors selling Restricted Stock will furnish to
Savvis in writing such information with respect to themselves and the proposed
distribution by them as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
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(h) Underwriting Agreement. In connection with any registration
pursuant to this Section 3 that covers an underwritten public offering, Savvis
and Investors selling Restricted Stock each agree to enter into a written
agreement with the managing underwriter selected in the manner herein provided
in such form and containing such provisions as are customary in the securities
business for such an arrangement between major underwriters, selling
stockholders and companies of Savvis' size and investment stature; provided, (i)
such agreement shall not contain any such provision applicable to Savvis which
is inconsistent with the provisions hereof and (ii) the time and place of the
closing under said agreement shall be as mutually agreed upon among Savvis such
managing underwriter and, except in the case of a registration pursuant to
paragraph (d) above, Investors holding a majority of the Restricted Stock being
sold in such offering.
(i) Expenses. The Original Registration Rights Agreement will govern
the payment of all Registration Expenses incurred in connection with any
registration of the February 2000 Common Shares. Savvis will pay all
Registration Expenses incurred in complying with Section 3 of this Agreement to
the extent such expenses relate to the registration of February 2001 Common
Shares. All Selling Expenses incurred in connection with any registered offering
of securities that, pursuant to this Section 3, includes Restricted Stock, shall
be borne by the participating sellers in proportion to the number of shares sold
by each, or by such persons other than Savvis (except to the extent Savvis shall
be a seller) as they may agree. All expenses incident to performance of or
compliance by Savvis with Section 3 hereof, including, without limitation, all
Commission, stock exchange or National Association of Securities Dealers, Inc.
("NASD") registration and filing fees (including, without limitation, fees and
expenses incurred in connection with the listing of the common stock of Savvis
on any securities exchange or exchanges), printing, distribution and related
expenses, fees and disbursements of counsel and independent public accountants
for Savvis, all fees and expenses incurred in connection with compliance with
state securities or blue sky laws and the rules of the NASD or any securities
exchange, transfer taxes and fees of transfer agents and registrars, but
excluding any Selling Expenses, are herein called "Registration Expenses". All
underwriting discounts and selling commissions applicable to the sale of
Restricted Stock are herein called "Selling Expenses".
(j) Availability of Rule 144(d). Each Investor agrees that during any
period in which such Investor is eligible to sell all of its shares of
Restricted Stock pursuant to Rule 144(k), such Investor shall not be entitled to
invoke or otherwise participate with respect to the registration rights granted
pursuant to paragraphs (a), (b) and (d) above.
SECTION 4. Indemnification Rights and Obligations In Respect of
Registered Offerings of Restricted Stock.
(a) Savvis Indemnification of Selling Investors. In the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Section 3 of this Agreement, Savvis will indemnify and hold harmless each seller
of Restricted Stock thereunder and each other person, if any, who controls such
seller within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, (or actions in respect thereof) to
which such seller or controlling person may become subject under the Securities
Act or otherwise,
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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
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.
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(c) Indemnification Procedures. Promptly after receipt by an
indemnified party hereunder of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party other than under this
Section 4. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 4 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party, or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. Notwithstanding the foregoing,
any indemnified party shall have the right to retain its own counsel in any such
action, but the fees and disbursements of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party shall have failed to
retain counsel for the indemnified person as aforesaid or (ii) the indemnifying
party and such indemnified party shall have mutually agreed to the retention of
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,
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including, without limitation, the failure to give any notice under paragraph
(c) above. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by Savvis, on the one hand, or the underwriters
and the sellers of such Restricted Stock, on the other, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Savvis and each of you agree that it would
not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation (even if all of the sellers of such Restricted
Stock were treated as one entity for such purpose) or by any other method of
allocation which did not take account of the equitable considerations referred
to above in this paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or action in respect
thereof, referred to above in this paragraph, shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such Restricted
Stock shall not be required to contribute any amount in excess of the amount, if
any, by which the total price at which the Restricted Stock sold by each of them
was offered to the public exceeds the amount of any damages which they would
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission. No person guilty of fraudulent misrepresentations (within
the meaning of Section 11(f) of the Securities Act), shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
SECTION 5. Rule 144. Savvis has filed and agrees with the Investors
that from and after the date hereof it shall continue to file any and all
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, or, if
Savvis is not required to file any such reports, it shall, upon the written
request of any Investor, make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the Securities Act. Upon
the written request of any Investor, Savvis shall promptly furnish to such
Investor a written statement by Savvis as to its compliance with the reporting
requirements set forth in this Section 5.
SECTION 6. Duration of Agreement. This Agreement shall survive so long
as any Investor owns Restricted Stock.
SECTION 7. Representations and Warranties. Each party hereto, severally
and not jointly, represents and warrants to the other parties hereto as follows:
(i) such party has the corporate or partnership power and authority, as
the case may be, to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by such
party of this Agreement have been duly authorized by all requisite
corporate or partnership action, as the case may be, on the part of such
party and will not (i) violate any provision of law, any order of any court
or other agency of government, the charter and other organizational
documents of such party, or any provision of any indenture, agreement or
other instrument by which such party or any of such party's properties or
assets is bound; (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument; or (iii) result in the
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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 8. Miscellaneous.
(a) Additional Registration Rights. Without the consent of Investors
holding at least a majority of the shares of Restricted Stock then outstanding,
Savvis shall not grant any registration rights to any other person that are
inconsistent or conflict with the registration rights granted hereunder.
(b) Headings. Headings of sections and paragraphs of this Agreement are
inserted for convenience of reference only and shall not affect the
interpretation or be deemed to constitute a part hereof.
(c) Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein shall,
for any reason, be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement.
(d) Benefits of Agreement. All covenants and agreements contained
herein by or on behalf of any of the parties hereto shall bind and inure solely
and exclusively to the benefit of the respective successors and permitted
assigns of the parties hereto. Except as expressly permitted hereby, each
party's rights and obligations under this Agreement shall not be subject to
assignment or delegation by any party hereto, and any attempted assignment or
delegation in violation hereof shall be null and void.
(e) Entire Agreement; Modification. This Agreement, the Original
Registration Rights Agreement and the Purchase Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may not be modified or amended except by a writing signed by Savvis
and the Investors holding at least a majority of the shares of Restricted Stock
then outstanding. Any waiver of any provision of this Agreement must be in a
writing signed by the party against whom enforcement of such waiver is sought.
(f) Notices. Any notice or other communications required or permitted
hereunder shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by national overnight courier service, by first
class certified mail, postage prepaid, or by facsimile (followed by delivery by
overnight courier) addressed to such party at the address or facsimile number
set forth below:
13
(i) if to Savvis or any WCAS Person, to it at the address or facsimile
number set forth for such party on the signature page hereto: and
(ii) if to any subsequent Investor, to such Investor at such address or
facsimile number as may have been furnished to the other parties hereto in
writing by such holder;
or, in any case, at such other address or facsimile number as shall have been
furnished in writing by such party to the other parties hereto. All such
notices, requests, consents and other communications shall be deemed to have
been received (1) in the case of personal or courier delivery, on the date of
such delivery, (2) in the case of mailing, on the fifth business day following
the date of such mailing and (3) in the case of facsimile, when received.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(h) Changes in Common Stock of Savvis. If, and as often as, there are
any changes in the common stock of Savvis by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof as may be required so that the
rights and privileges granted hereby shall continue with respect to the
Restricted Stock as so changed.
(i) Specific Performance. Each party hereto agrees that a remedy at law
for any breach or threatened breach by such party of this Agreement would be
inadequate and therefore agrees that any other party hereto shall be entitled to
specific performance of this Agreement in addition to any other available rights
and remedies in case of any such breach or threatened breach.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
* * * * *
14
IN WITNESS WHEREOF, each of the parties hereto has duly
executed and delivered this Agreement as of the day and year first above
written.
SAVVIS COMMUNICATIONS CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President-General Counsel
Address: 00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
WELSH, CARSON, XXXXXXXX
& XXXXX VIII, L.P.
By WCAS VIII Associates LLC,
General Partner
By /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
15
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
D. Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxx
Xxxxxxxx X. Rather
By:/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
16
WCAS MANAGEMENT CORPORATION
By: /s/ Xxxxxxxx X. Rather
________________________________
Name: Xxxxxxxx X. Rather
Title:Treasurer
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Rather
Facsimile: (000) 000-0000
17
