Exhibit (d)1
EXECUTION COPY
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "AGREEMENT") is made as of June 17,
2004 by and among Gartner, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "COMPANY"), and 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").
R E C I T A L S
A. WHEREAS, the Company intends, but has not made any public announcement
of such intention, to conduct a public modified Dutch auction self-tender offer
for up to 11,298,630 shares of its Common Stock, Class A, par value $0.0005 per
share ("CLASS A COMMON STOCK"), and 5,505,305 shares of its Common Stock, Class
B, par value $0.0005 per share ("CLASS B COMMON STOCK," and together with the
Class A Common Stock, the "COMMON STOCK"), at prices ranging from $12.50 to
$13.50 per share pursuant to the terms and conditions set forth in the draft
Offer to Purchase substantially in the form attached hereto as Annex A, as the
same may be revised, amended, modified or supplemented from time to time after
the date hereof in accordance with Section 8 hereof (the "TENDER OFFER"),
commencing no later than June 22, 2004;
B. WHEREAS, as of the date hereof, Silver Lake owns of record 46,969,066
shares of Class A Common Stock of the Company, which constitutes approximately
44.9% of the issued and outstanding shares of Class A Common Stock, and
approximately 35.4% of the issued and outstanding shares of Common Stock;
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 that certain Amended and Restated
Securityholders Agreement, dated as of July 12, 2002, among the Company, Silver
Lake Partners, L.P. and certain additional signatories thereto (the
"SECURITYHOLDERS AGREEMENT");
D. WHEREAS, Silver Lake has determined it will not exercise its right to
tender any of its shares of Class A Common Stock pursuant to the Tender Offer;
and
E. 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 Class A Common Stock. Subject to the
completion of the Tender Offer as set forth below and the other 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, 9,196,065 shares
of Class A Common Stock, subject to adjustment as follows; provided, that in no
event shall Silver Lake sell more than 12,000,000 shares of Series A Common
Stock (the "SHARE CAP") to the Company:
(a) if the Company increases or decreases the number of shares
of Class A Common Stock subject to the Tender Offer (any such increase or
decrease, the "TO CHANGE"), the aggregate number of shares of Class A Common
Stock to be purchased by the Company from Silver Lake shall be increased or
decreased, respectively, by an amount equal to the TO Change multiplied by a
fraction, the numerator of which is 46,969,066 and the denominator of which is
57,707,954 (representing the outstanding shares of Class A Common Stock held of
record by Silver Lake divided by the outstanding shares of Class A Common Stock
held of record by all stockholders of the Company other than Silver Lake),
subject to the Share Cap; and
(b) if the number of shares of Class A Common Stock tendered
and accepted for payment in the Tender Offer is less than the number of shares
of Class A Common Stock the Company is offering to purchase in the Tender Offer
as of the expiration date (any such difference, the "SERIES A SHORTFALL"), the
aggregate number of shares of Class A Common Stock to be purchased by the
Company from Silver Lake shall be increased by an amount equal to the Series A
Shortfall, subject to the Share Cap.
The number of shares of Class A Common Stock to be purchased from Silver Lake by
the Company pursuant to this Section 1.1 is herein referred to as, 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 Class A 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 equal to the price per share paid by the Company for the shares of
Class A Common Stock tendered by the holders of Class A Common Stock in the
Tender Offer. The "PURCHASE PRICE" shall equal the Per Share Purchase Price
specified in 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, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. New York City time on the
eleventh business day following the date that the funds are made available by
2
the Company to the depositary for the settlement of Class A Common Stock
tendered in the Tender Offer (the "SUCCESSFUL COMPLETION"), or at such other
later date or place as the parties shall 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, 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 Class A 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 (a) 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, (b) will not result in the
creation or imposition of any lien upon the Shares to be sold by Silver Lake,
and (c) 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
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 and to purchase the shares of Common Stock to be purchased pursuant to
the Tender Offer in each case in compliance with Section 160 of the Delaware
General Corporation Law. The execution, delivery and 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 Capital Stock. The authorized capital stock of the Company
consists of (i) 250,000,000 shares of Common Stock, of which 166,000,000 shares
are designated Class A Common Stock, of which 104,677,020 shares are issued and
outstanding, and 84,000,000 shares are designated Class B Common Stock, of which
28,118,443 shares are issued and outstanding, and (ii) 5,000,000 shares of
preferred stock, par value $0.01 per share, of which 166,000 shares are
designated as Series A Junior Participating Preferred Stock, none of which are
issued and outstanding, and 84,000 are designated as Series B Junior
Participating Preferred Stock, none of which are issued and outstanding.
3.3 No Violation; No Consent. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by the Company (a) 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 (b) 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.
3.4 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 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 9.3:
4
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 Tender Offer. The Successful Completion of the Tender Offer
shall have occurred.
4.4 Delivery of Certificates. Silver Lake shall have delivered all
of the stock certificates representing the Shares to be sold by it at the
Closing, free and clear of any liens, claims or encumbrances, along with all
stock powers, assignments or any other documents, instruments or certificates
necessary for a valid transfer.
4.5 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 9.3:
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 Payment of Purchase Price. The Company shall have delivered the
Purchase Price to be paid by the Company to Silver Lake by wire transfer to the
account(s) specified by Silver Lake.
5.4 Minimum Amount of Common Stock Tendered. The number of shares of
Common Stock tendered and accepted for payment in the Tender Offer shall not be
less 1,680,394 shares.
6. Covenants.
5
6.1 No Purchase of Common Stock. Until eleven business days
following the Successful Completion of the Tender Offer, Silver Lake agrees that
it will not, directly or indirectly, purchase any shares of Common Stock. Other
than the consents provided pursuant to the terms of this Agreement, all prior
consents granted by Silver Lake under the Securityholders Agreement with respect
to repurchases of shares of capital stock are of no further force or effect with
respect to future purchases of capital stock.
6.2 No Sale of Class A Common Stock. Except as contemplated
hereunder, from the date hereof until the Closing or the termination of this
Agreement, Silver Lake agrees that it will not, directly or indirectly, sell any
shares of Class A Common Stock, including in the Tender Offer.
6.3 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 (i) the transactions contemplated by this Agreement, (ii) the
Tender Offer, (iii) the incurrence by the Company of additional indebtedness
from time to time, of up to $325,000,000, $225,000,000 of which shall be
utilized to provide the necessary or desirable financing for the Tender Offer,
and (iv) all other transactions and actions as the officers of the Company
reasonably deem necessary or advisable to effectuate the Tender Offer. For the
avoidance of doubt, Silver Lake's consent shall be required for any amendment to
the terms of the Tender Offer that (i) changes the type or amount of
consideration per share offered to security holders, (ii) increases the
aggregate number of shares of Common Stock sought in the Tender Offer in excess
of 16,803,935 (plus up to an additional 2% of the outstanding shares of each
class of Common Stock), (iii) decreases the aggregate number of shares of Class
A Common Stock sought in the Tender Offer below 11,298,630 (provided, however,
that this shall in no way limit the Company's ability to accept a smaller number
of shares for payment if the Tender Offer for the Class A Common Stock is
undersubscribed), (iv) materially alters any of the conditions of the Tender
Offer contained in Section 7 of the Offer to Purchase, adds any additional
conditions to the Tender Offer (provided, however, that this shall in no way
limit the Company's ability to waive any such condition), or changes the minimum
number of shares required to be tendered into the Tender Offer to something
other than 1,680,394 shares of Common Stock), or (v) extends the expiration date
of the Tender Offer beyond September 15, 2004.
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
6
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
Delaware without giving effect to the principles of conflicts of laws. 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 Delaware. Each party hereto
agrees to the entry of an order to enforce any resolution, settlement, order or
award made pursuant to this Section 9.1 by the state and federal courts located
in the State of Delaware 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 Delaware or any other
jurisdiction.
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 and thereof. 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.
For the avoidance of doubt, to the extent that any of the terms and conditions
of this Agreement are inconsistent with any of the terms and conditions
contained in the draft Offer to Purchase attached hereto as Annex A, the terms
of this Agreement will govern and the Offer to Purchase will be revised to be
consistent with the terms of this Agreement.
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. The Company or Silver Lake may terminate this
Agreement if (i) the Tender Offer is terminated without the purchase of any
shares of Common Stock or (ii) if the Tender Offer is not consummated by
September 15, 2004; provided that the Company may not terminate this Agreement
under this clause (ii) unless the Tender Offer is terminated. Upon termination
of this Agreement pursuant to Section 9.5, 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:
7
(a) If to Silver Lake, to:
Silver Lake Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Fax: 000-000-0000
(b) If to the Company, to:
Gartner, Inc.
X.X. Xxx 00000
56 Top Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
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.
8
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.
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.
9
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: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
