EXECUTION COPY
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
FIRST AMENDMENT, DATED AS OF MAY 31, 2001 (this "Amendment") TO
SECURITIES PURCHASE AGREEMENT, by and between SAVVIS Communications Corporation,
a Delaware corporation (the "Company"), and Reuters Holdings Switzerland SA, a
societe anonyme organized under the laws of Switzerland (the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Company and the Purchaser are parties to into a
Securities Purchase Agreement, dated as of May 16, 2001 (the "Agreement")
pursuant to which the Purchaser agreed to purchase, on certain dates and subject
to satisfaction of certain conditions set forth in the Agreement, up to
$45,000,000 aggregate principal amount of the Company's 12% Convertible Senior
Secured Notes (together with the notes to be issued as payment-in-kind interest
thereunder, the "Notes") in the form attached as Exhibit A to the Agreement (the
"Form of Note");
WHEREAS, capitalized terms used herein and not otherwise defined
shall have the same meaning as such terms are used in the Agreement;
WHEREAS, on May 16, 2001, the Purchaser purchased a Note (the "May
2001 Note") from the Company and the Company sold the May 2001 Note to the
Purchaser with a principal amount of $10,000,000 in exchange for a cash payment
of like amount to the Company;
WHEREAS, the Notes may be converted into the Company's common stock
at any time at the option of the holders thereof ("Voluntary Conversion");
WHEREAS, upon the Company's raising certain funds through the
issuance of convertible preferred stock as set forth in Section 1.04(b) of the
Agreement, and upon satisfaction of certain other conditions as set forth in the
Agreement, the outstanding Notes will be converted automatically into a series
of the Company's convertible preferred stock ("Automatic Conversion");
WHEREAS, it may be necessary, prior to Voluntary Conversion or
Automatic Conversion, for the Purchaser and/or the Company to file applications
or notices with a Governmental Authority, including pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and to await a
favorable ruling from such Governmental Authority, or the expiration or early
termination of any applicable waiting periods;
WHEREAS, pursuant to any such application or notice, the Purchaser
and the Company desire to comply promptly with any requests for additional
information or documentary material; and
WHEREAS, the Company and the Purchaser desire to amend the Agreement,
the Form of Note and the May 2001 Note to reflect the foregoing.
NOW, THEREFORE, in consideration of the foregoing promises and the
following promises, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Amendment to the Agreement.
1.1 The following sentences are added to the end of Section 1.04(a)
of the Agreement:
"Upon notice from the Purchaser of its intention to convert a
principal amount of Notes pursuant to this Section 1.04(a) which
would require the Purchaser and the Company to file applications or
notices with any Governmental Authority (as defined in Section 2.06
hereof), including pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), the Purchaser
and the Company shall file such applications or notices as soon as
practicable and comply promptly with any requests for additional
information or documentary material relating to such applications or
notices. The delivery by the Purchaser to the Company of a notice to
file such applications or notices with a Governmental Authority shall
in no way obligate the Purchaser to convert any principal amount of
such Notes."
1.2 Section 1.04(b) of the Agreement is hereby amended and restated
as follows:
"(b) Automatic Conversion of Notes into Preferred Stock. Simultaneous
with the Company raising an aggregate of $50,000,000 (the "Conversion
Amount") in cash through the issuance of convertible preferred stock
prior to the Maturity Date (as defined below), excluding the Notes
and PIK Notes, but including shares issued upon conversion of up to
$20,000,000 aggregate principal amount of the Company's 10%
Convertible Senior Secured Notes due February 20, 2006 issued to
affiliates of Welsh, Carson, Xxxxxxxx & Xxxxx ("Xxxxx Xxxxxx")
(excluding any notes issued to Xxxxx Xxxxxx in kind for interest on
such notes), all of the principal amount of the Notes then
outstanding, together with any PIK Notes (as defined below), Notes
then-payable in kind for accrued and unpaid interest as of such date
and Notes to be purchased on such date by the Purchaser, subject to
satisfaction of all applicable conditions set forth in Section 6.02
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herein, at a special Closing with a Purchase Price equal to the
difference between $30,000,000 and the aggregate Purchase Price paid
by the Purchaser pursuant to all Closings completed pursuant to this
Agreement as of such date (it being understood that on such date, the
Purchaser shall deliver such Purchase Price by wire transfer of
immediately available funds to the Company), shall be converted into
shares of convertible preferred stock ("Purchaser Conversion
Preferred") on the same terms (including purchase price) as, and
having the same rights, preferences, privileges and restrictions as
shares issued (the "Recent Equity Financing Shares") pursuant to the
Company's most recent preferred stock financing (the "Recent Equity
Financing"), except that the initial conversion price of such
Purchaser Conversion Preferred shall be the equivalent of the lesser
of (i) the initial conversion price of the Recent Equity Financing
Shares, (ii) the initial conversion price of shares issued pursuant
to any financing which comprises a portion of the Conversion Amount
(excluding shares issued upon conversion of the notes previously
issued to Xxxxx Xxxxxx referred to above), and (iii) the Common Stock
Conversion Price. The Purchaser Conversion Preferred shall be of the
same class, but separate series, as the Recent Equity Financing
Shares. The proportional value of any fractional shares resulting
from the issuance of Purchaser Conversion Preferred shall be paid by
the Company in cash to the Purchaser. Notwithstanding the foregoing,
the following actions by the Company shall not be aggregated in
calculating the Conversion Amount: (i) the issuance of any shares of
Common Stock pursuant to a stock option plan approved by the
Company's Board of Directors, (ii) the issuance of stock, warrants or
other securities or rights to persons or entities with which the
Company has bona fide business relationships provided such issuances
are for other than primarily equity financing purposes, provided,
that in any such case (involving the foregoing clauses (i) or (ii))
such issuance has been approved by a majority of the members of the
Company's Board of Directors. The Company will provide the Purchaser
with at least 10 business days notice in advance of an expected
closing of an equity financing which will result in the raising of
the Conversion Amount, noting the time and place of such event. The
Company shall present and deliver certificates evidencing the proper
number of Purchaser Conversion Preferred to the Purchaser, in such
denominations and in such name or names as the Purchaser may
designate by notice to the Company, to Purchaser at the closing of
the Recent Equity Financing in exchange for delivery of its Notes to
the Company. Upon receipt of such Notes in exchange for such
certificate or certificates of stock evidencing the proper number of
Purchaser Conversion Preferred, the Company shall cancel and destroy
such Note or Notes, and such Note or Notes shall thereafter be null,
void and of no effect. An opinion or opinions of counsel
substantially similar to the opinions to be rendered pursuant to
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Section 6.01(a)(vi) hereof, reasonably satisfactory to the Purchaser,
will be provided regarding the issuance of the Purchaser Conversion
Preferred upon the issuance of such securities. In the event that
conversion of all or a portion of the principal amount of the Notes
into Purchaser Conversion Preferred pursuant to this Section 1.04(b)
requires the Purchaser and the Company to file applications or
notices with any Governmental Authority (as defined in Section 2.06
hereof), including pursuant to the HSR Act, the Purchaser and the
Company shall file such applications or notices as soon as
practicable upon receipt of notice of an expected closing of an
equity financing which will result in the raising of the Conversion
Amount. In such event, such conversion shall be effected only to the
extent and in such amounts not prohibited by any Governmental
Authority or applicable law, until authorization from such
Governmental Authority and/or relief under applicable law shall be
obtained (which may take the form of obtaining a favorable ruling
from such Governmental Authority, or the expiration or early
termination of any applicable waiting periods), at which time any
remaining unconverted Notes subject to conversion pursuant to this
Section 1.04(b) shall be converted into Purchaser Conversion
Preferred."
SECTION 2. Amendments to the Form of Note and May 2001 Note.
2.1 The following sentences are added to the end of Section 15(a) of
both the Form of Note and the May 2001 Note:
"Upon notice from the Holder of its intention to convert all or a
portion of the principal amount of this Note pursuant to this Section
15(a) which would require the Holder and the Corporation to file
applications or notices with any Governmental Authority (as defined
in Section 2.06 of the Purchase Agreement), including pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), the Holder and the Corporation shall file such
applications or notices as soon as practicable and comply promptly
with any requests for additional information or documentary material
relating to such applications or notices. The delivery by the Holder
to the Corporation of a notice to file such applications or notices
with a Governmental Authority shall in no way obligate the Holder to
convert any principal amount of this Note."
2.2 Section 15(b) of both the Form of Note and the May 2001 Note are
amended and restated as follows:
"(b) Automatic Conversion of this Note into Preferred Stock.
Simultaneous with the Corporation raising an aggregate of $50,000,000
(the "Conversion Amount") in cash through the issuance of convertible
preferred stock prior to the Maturity Date, excluding the Notes and
PIK Notes, but including shares issued upon conversion of up to
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$20,000,000 aggregate principal amount of the Corporation's 10%
Convertible Senior Secured Notes due February 20, 2006 issued to
affiliates of Welsh, Carson, Xxxxxxxx & Xxxxx ("Xxxxx Xxxxxx")
(excluding any notes issued to Xxxxx Xxxxxx in kind for interest on
such notes), all of the principal amount of this Note, together with
any PIK Notes, Notes then-payable in kind for accrued and unpaid
interest as of such date and Notes to be purchased on such date by
the Purchaser, subject to satisfaction of all applicable conditions
set forth in Section 6.02 of the Purchase Agreement, at a special
Closing on such date with a Purchase Price equal to the difference
between $30,000,000 and the aggregate Purchase Price paid by the
Purchaser pursuant to all Closings completed pursuant to this
Agreement as of such date pursuant to the terms of the Purchase
Agreement (collectively, the "Purchaser Conversion Notes"), shall be
converted into shares of convertible preferred stock ("Purchaser
Conversion Preferred") on the same terms (including purchase price)
as, and having the same rights, preferences, privileges and
restrictions as shares issued (the "Recent Equity Financing Shares")
pursuant to the Corporation's most recent preferred stock financing
(the "Recent Equity Financing"), except that the initial conversion
price of such Purchaser Conversion Preferred shall be the equivalent
of the lesser of (i) the initial conversion price of the Recent
Equity Financing Shares, (ii) the initial conversion price of shares
issued pursuant to any financing which comprises a portion of the
Conversion Amount (excluding shares issued upon conversion of the
notes previously issued to Xxxxx Xxxxxx referred to above), and (iii)
the Common Stock Conversion Price. The Purchaser Conversion Preferred
shall be of the same class, but separate series, as the Recent Equity
Financing Shares. The proportional value of any fractional shares
resulting from the issuance of Purchaser Conversion Preferred shall
be paid by the Corporation in cash to the Purchaser. Notwithstanding
the foregoing, the following actions by the Corporation shall not be
aggregated in calculating the Conversion Amount: (i) the issuance of
any shares of Common Stock pursuant to a stock option plan approved
by the Corporation's Board of Directors, (ii) the issuance of stock,
warrants or other securities or rights to persons or entities with
which the Corporation has bona fide business relationships provided
such issuances are for other than primarily equity financing
purposes, provided that in any such case (involving the foregoing
clauses (i) or (ii)) such issuance has been approved by a majority of
the members of the Corporation's Board of Directors. The Corporation
will provide the Holder with at least 10 business days notice in
advance of an expected closing of an equity financing which will
result in the raising of the Conversion Amount, noting the time and
place of such event. The Corporation shall present and deliver
certificates evidencing the proper number of Recent Equity Financing
Shares to the Holder, in such denominations and in such name or names
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as the Holder may designate by notice to the Corporation, to the
Holder at the closing of the Recent Equity Financing in exchange for
delivery of this Note to the Corporation. Upon receipt of this Note
in exchange for such certificate or certificates of stock evidencing
the proper number of Recent Equity Financing Shares, the Corporation
shall cancel and destroy this Note or Notes, and this Note or Notes
shall thereafter be null, void and of no effect. In the event that
conversion of all or a portion of the principal amount of this Note
into Purchaser Conversion Preferred pursuant to this Section 15(b)
requires the Holder and the Corporation to file applications or
notices with any Governmental Authority (as defined in Section 2.06
of the Purchase Agreement), including pursuant to the HSR Act, the
Holder and the Corporation shall file such applications or notices as
soon as practicable upon receipt of notice of an expected closing of
an equity financing which will result in the raising of the
Conversion Amount. In such event, such conversion shall be effected
only to the extent and in such amounts not prohibited by any
Governmental Authority or applicable law until authorization from
such Governmental Authority and/or relief under applicable law shall
be obtained (which may take the form of obtaining a favorable ruling
from such Governmental Authority, or the expiration or early
termination of any applicable waiting periods), at which time any
remaining unconverted Notes subject to conversion pursuant to this
Section 15(b) shall be converted into Purchaser Conversion
Preferred."
SECTION 3. Miscellaneous.
3.1 Execution.This Amendment may be executed in counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such counterparts shall
together constitute but on and the same instrument.
3.2 Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
3.3 Full Force and Effect. As amended hereby, the Agreement
(including the Form of Note) and the May 2001 Note remain in full force and
effect in accordance with their terms and all future references to the Agreement
(including the Form of Note) or the May 2001 Note shall mean the Agreement
(including the Form of Note) and the May 2001 Note, in each case as amended
hereby.
[signature page follows]
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IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Amendment 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
REUTERS HOLDINGS SWITZERLAND SA
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
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