STOCK PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION
VERSION
This Stock Purchase Agreement (the “Agreement”) is made as of December 6, 2006 by and
among Gartner, Inc., a corporation organized and existing under the laws of the State of Delaware
(the “Company”), Silver Lake Partners, L.P., a Delaware limited partnership, Silver Lake Investors,
L.P., a Delaware limited partnership, and Silver Lake Technology Investors, L.L.C., a Delaware
limited liability company (collectively, “Silver Lake”).
RECITALS
A. WHEREAS, as of the date hereof, Silver Lake owns of record 23,615,128 shares of common
stock, par value $0.0005 per share, of the Company (the “Common Stock”), which constitutes
approximately 20.7% of the issued and outstanding shares of Common Stock of the Company;
B. WHEREAS, Silver Lake desires and voluntarily agrees to sell certain shares of Common Stock
held by Silver Lake to the Company, and the Company desires to purchase such shares from Silver
Lake;
C. WHEREAS, Silver Lake is entitled to certain contractual consent rights (in addition to any
vote or consent of the board of directors or the stockholders of the Company required by law or the
Company’s certificate of incorporation) pursuant to the terms of the Securityholders Agreement by
and among the Company, Silver Lake Partners, L.P. and certain additional signatories thereto; and
D. WHEREAS, the Company and Silver Lake desire to make certain covenants and agreements with
one another pursuant to this Agreement.
NOW THEREFORE, in consideration of the covenants and promises set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
AGREEMENT
1. Purchase and Sale of the Shares; the Closing.
1.1 Purchase and Sale of Common Stock. Subject to the terms and conditions of this
Agreement, and on the basis of the representations, warranties and covenants set forth herein,
Silver Lake agrees to sell to the Company, and the Company agrees to purchase from Silver Lake,
10,389,610 shares of Common Stock (the “Shares”). The allocation of the Shares to be sold by each
Silver Lake entity at the Closing shall be pro rata based on the number of shares of Common Stock
held of record by each of Silver Lake Partners, L.P., Silver Lake Investors, L.P., and Silver Lake
Technology Investors, L.L.C., rounded to the nearest whole share, or in such other proportion as
Silver Lake may determine; provided Silver Lake notifies the Company of such allocation at least
one business day prior to the Closing.
1.2 Purchase Price. The “Per Share Purchase Price” for the Shares shall be $19.25 per
share. The “Purchase Price” shall equal the Per Share Purchase Price specified in this Section 1.2
multiplied by the number of Shares purchased by the Company from Silver Lake pursuant to Section
1.1 of this Agreement.
1.3 The Closing. Subject to the terms and conditions hereof, the purchase and sale of
the Shares contemplated by this Agreement (the “Closing”) will take place at the offices of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 1301 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. New York City time, on December 13, 2006, or such
other day or location as the parties may mutually agree. At the Closing, (i) Silver Lake will
deliver to the Company certificates representing the Shares to be purchased by the Company duly
endorsed or accompanied by stock powers duly executed in blank and otherwise in form acceptable for
transfer on the books of the Company (or shall deliver the Shares in such other manner as is
reasonably agreed), and (ii) the Company shall deliver the Purchase Price to Silver Lake by wire
transfer of immediately available funds to one or more accounts specified by Silver Lake at least
one business day prior to the Closing.
2. Representations and Warranties of Silver Lake. In order to induce the Company to
enter into this Agreement, Silver Lake hereby represents and warrants to the Company as follows:
2.1 Ownership of Shares. Silver Lake owns of record the number of issued and
outstanding shares of Common Stock set forth in the recitals to this Agreement. The Shares to be
sold to the Company by Silver Lake when delivered to the Company shall be free and clear of any
liens, claims or encumbrances, including rights of first refusal and similar claims except for
restrictions of applicable state and federal securities laws. There are no restrictions on the
transfer of such Shares imposed by any shareholder or similar agreement or any law, regulation or
order, other than applicable state and federal securities laws.
2.2 Authorization. Silver Lake has full right, power and authority to execute,
deliver and perform this Agreement and to sell, assign and deliver the Shares to be sold by it to
the Company. This Agreement is the legal, valid and, assuming due execution and delivery by the
other parties hereto, binding obligation of Silver Lake, enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by (i) principles of public
policy, (ii) applicable bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors’ rights generally, and (iii) rules of law
governing the availability of equitable remedies.
2.3 No Violation; No Consent. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby by Silver Lake (i) will not
constitute a breach or violation of or default under any judgment, decree or order or any agreement
or instrument of Silver Lake or to which Silver Lake is subject, (ii) will not result in the
creation or imposition of any lien upon the Shares to be sold by Silver Lake, and (iii) will not
require the consent of or notice to any governmental entity or any party to any contract, agreement
or arrangement with Silver Lake.
2.4 Brokerage. There are no claims for brokerage commissions or finder’s fees or
similar compensation in connection with the transactions contemplated by this Agreement based on
any arrangement or agreement made by or on behalf of Silver Lake.
3. Representations and Warranties of the Company. In order to induce Silver Lake to
enter into this Agreement, the Company hereby represents and warrants as follows:
3.1 Organization and Corporate Power; Authorization. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
The Company has the requisite power and authority to execute, deliver and perform this Agreement
and to acquire the Shares. As of the Closing, the Company will have sufficient capital to purchase
the Shares hereunder in compliance with Section 160 of the Delaware General Corporation Law. The
execution, delivery and
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performance of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been approved by a majority of the disinterested directors on
the Board of Directors of the Company, having been advised by counsel, and have been otherwise duly authorized by all
requisite action on the part of the Company. This Agreement and any other agreements, instruments,
or documents entered into by the Company pursuant to this Agreement have been duly executed and
delivered by the Company and are the legal, valid and, assuming due execution by the other parties
hereto, binding obligations of the Company, enforceable against the Company in accordance with its
terms except to the extent that the enforceability thereof may be limited by (i) principles of
public policy, (ii) applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors’ rights generally, and (iii)
rules of law governing the availability of equitable remedies.
3.2 No Violation; No Consent. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby by the Company (i) will not
constitute a breach or violation of or default under any judgment, decree or order or any agreement
or instrument of the Company or to which the Company is subject, and (ii) will not require the
consent of or notice to any governmental entity or any party to any contract, agreement or
arrangement with the Company, other than the consent of Silver Lake provided in Section 8 hereof
and the consent of the Lenders pursuant to the Company’s Amended and Restated Credit Agreement, as
amended, dated as of June 29, 2005 (the “Credit Agreement”).
3.3 Brokerage. There are no claims for brokerage commissions or finder’s fees or
similar compensation in connection with the transactions contemplated by this Agreement based on
any arrangement or agreement made by or on behalf of the Company.
4. Conditions to the Company’s Obligations. The obligations of the Company under
Article 1 to purchase the Shares at the Closing from Silver Lake are subject to the fulfillment as
of the Closing of each of the following conditions unless waived by the Company in accordance with
Section 9.11:
4.1 Representations and Warranties. The representations and warranties of Silver Lake
contained in Article 2 shall be true and correct on and as of the date of the Closing with the same
effect as though such representations and warranties had been made on and as of the date of the
Closing.
4.2 Performance. Silver Lake shall have performed and complied in all material
respects with all agreements, obligations, and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the date of the Closing.
4.3 Financing. The Company shall have (i) secured at least $150,000,000 in
additional financing on terms and conditions reasonably acceptable to it, and (ii) amended the
Credit Agreement in a manner to allow for the purchase of the Shares from Silver Lake.
4.4 Further Assurances. No governmental authority shall have advised or notified the
Company that the consummation of the transactions contemplated hereunder would constitute a
material violation of any applicable laws or regulations, which notification or advice shall not
have been withdrawn after the exhaustion of the Company’s good faith efforts to cause such
withdrawal.
5. Conditions to Silver Lake’s Obligations. The obligations of Silver Lake under
Article 1 to sell the Shares at the Closing are subject to the fulfillment as of the Closing of
each of the following conditions unless waived by Silver Lake in accordance with Section 9.11:
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5.1 Representations and Warranties. The representations and warranties of the Company
contained in Article 3 shall be true and correct as of the date of the Closing with the same effect
as though such representations and warranties had been made on and as of the date of the Closing.
5.2 Performance. The Company shall have performed and complied in all material
respects with all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the date of the Closing.
5.3 Further Assurances. No governmental authority shall have advised or notified
Silver Lake that the consummation of the transactions contemplated hereunder would constitute a
material violation of any applicable laws or regulations, which notification or advice shall not
have been withdrawn after the exhaustion of Silver Lake’s good faith efforts to cause such
withdrawal.
6. Covenants.
6.1 Closing Conditions. Silver Lake and the Company shall use their commercially
reasonable efforts to ensure that each of the conditions to Closing is satisfied.
7. Survival of Representations and Warranties; Limitation on Liability. All
representations and warranties hereunder shall survive the Closing. Notwithstanding the foregoing,
in no event shall Silver Lake’s liability for breach of the representations, warranties and
covenants exceed the Purchase Price to be paid by the Company to Silver Lake.
8. Silver Lake Consent. For purposes of Section 2.3 of the Securityholders Agreement
and for all other purposes, Silver Lake hereby provides its consent with respect to the
transactions contemplated by this Agreement.
9. Miscellaneous.
9.1 Adjustments. Wherever a particular number is specified herein, including, without
limitation, number of shares or price per share, such number shall be adjusted to reflect any stock
dividends, stock-splits, reverse stock-splits, combinations or other reclassifications of stock or
any similar transactions and appropriate adjustments shall be made with respect to the relevant
provisions of this Agreement so as to fairly and equitably preserve, as far as practicable, the
original rights and obligations of the Company and Silver Lake under this Agreement.
9.2 Governing Law; Jurisdiction. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York. Any legal action or
other legal proceeding relating to this Agreement or the enforcement of any provision of this
Agreement may be brought or otherwise commenced in any state or federal court located in the State
of New York. Each party hereto agrees to the entry of an order to enforce any resolution,
settlement, order or award made pursuant to this Section 9.2 by the state and federal courts
located in the State of New York and in connection therewith hereby waives, and agrees not to
assert by way of motion, as a defense, or otherwise, any claim that such resolution, settlement,
order or award is inconsistent with or violative of the laws or public policy of the laws of the
State of New York or any other jurisdiction.
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9.3 Successors and Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the successor and assigns of
the parties hereto.
9.4 Entire Agreement; Amendment. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects hereof. Neither this
Agreement nor any provision hereof may be amended, changed or waived other than by a written
instrument signed by the party against who enforcement of any such amendment, change or waiver is
sought.
9.5 Cooperation. The Company and Silver Lake shall, from and after the date hereof,
cooperate in a reasonable manner to effect the purposes of this Agreement.
9.6 Termination. Silver Lake may terminate this Agreement if the Company has not
obtained the financing contemplated in Section 4.3 of this Agreement by December 22, 2006. Upon
termination of this Agreement pursuant to this Section 9.6, none of the parties hereto shall have
any liability hereunder except for breaches of such party’s representations, warranties or
covenants occurring prior to the date of such termination.
9.7 Notices, etc. All notices and other communications required or permitted
hereunder shall be effective upon receipt and shall be in writing and may be delivered in person,
by telecopy, electronic mail, express delivery service or U.S. mail, in which event it may be
mailed by first-class, certified or registered, postage prepaid, addressed, to the party to be
notified, at the respective addresses set forth below, or at such other address which may
hereinafter be designated in writing:
| (a) | If to Silver Lake, to: |
Silver Lake Partners, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
| (b) | If to the Company, to: |
Gartner, Inc.
X.X. Xxx 00000
56 Top Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
X.X. Xxx 00000
56 Top Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
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Attention: Xxx Xxxxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax No. 000-000-0000
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax No. 000-000-0000
9.8 Severability. If any provision of this Agreement shall be judicially determined
to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
9.9 Titles and Subtitles. The titles of the Articles and Sections of this Agreement
are for convenience of reference only and in no way define, limit, extend, or describe the scope of
this Agreement or the intent of any of its provisions.
9.10 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one instrument.
9.11 Delays or Omissions. It is agreed that no delay or omission to exercise any
right, power or remedy accruing to any party upon any breach or default of any other party under
this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a
waiver of any such breach or default, or any acquiescence therein, or of any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. It is further agreed
that any waiver, permit, consent or approval of any kind or character of any breach or default
under this Agreement, or any waiver of any provisions or conditions of this Agreement must be in
writing and shall be effective only to the extent specifically set forth in writing, and that all
remedies, either under this Agreement, by law or otherwise, shall be cumulative and not
alternative.
9.12 Consents. Any permission, consent, or approval of any kind or character under
this Agreement shall be in writing and shall be effective only to the extent specifically set forth
in such writing.
9.13 SPECIFIC PERFORMANCE. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN
THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS
SPECIFIC INTENT OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE
ENTITLED TO AN INJUNCTION OR INJUNCTIONS, WITHOUT BOND, TO PREVENT OR CURE BREACHES OF THE
PROVISIONS OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF, THIS
BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED BY LAW OR EQUITY, AND ANY PARTY
SUED FOR BREACH OF THIS AGREEMENT EXPRESSLY WAIVES ANY DEFENSE THAT A REMEDY IN DAMAGES WOULD BE
ADEQUATE.
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9.14 Payment of Fees and Expenses. Each party shall be responsible for paying
its own fees, costs and expenses in connection with this Agreement and the transactions herein
contemplated.
9.15 Construction of Agreement. No provision of this Agreement shall be construed
against either party as the drafter thereof.
9.16 Section References. Unless otherwise stated, any reference contained herein to a
Section or subsection refers to the provisions of this Agreement.
9.17 Variations of Pronouns. All pronouns and all variations thereof shall be deemed
to refer to the masculine, feminine, or neuter, singular or plural, as the context in which they
are used may require.
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IN WITNESS WHEREOF, the parties have caused this Stock Purchase Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and year first written
above.
| GARTNER, INC. |
||||
| By: | /s/ Xxxxxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| SILVER LAKE SILVER LAKE PARTNERS, L.P. |
||||
| By: |
Silver Lake Technology Associates, L.L.C., its General Partner |
|||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| SILVER LAKE INVESTORS, L.P. |
||||
| By: |
Silver Lake Technology Associates, L.L.C., its General Partner |
|||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
|
SILVER LAKE TECHNOLOGY INVESTORS, L.L.C. |
||||
| By: |
Silver Lake Technology Management, L.L.C., its Manager |
|||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Stock Purchase Agreement]
