EXHIBIT 10.2
AMENDMENT NO. 1
TO
INVESTOR RIGHTS AGREEMENT
Amendment No. 1, dated as of June 28, 2002 (the "AMENDMENT"),
to the Investor Rights Agreement, dated as of March 6, 2002 (the "INVESTOR
RIGHTS AGREEMENT"), among SAVVIS COMMUNICATIONS CORPORATION, a Delaware
corporation ("SAVVIS" or the "COMPANY"), WELSH, CARSON, XXXXXXXX & XXXXX VIII,
L.P., a Delaware limited partnership ("WCAS"), REUTERS HOLDINGS SWITZERLAND SA,
a societe anonyme organized under the laws of Switzerland ("REUTERS"), the other
individuals and entities party to the Investor Rights Agreement. Capitalized
terms used herein and not otherwise defined have the meanings ascribed to them
in the Investor Rights Agreement.
W I T N E S S E T H
WHEREAS, Constellation Venture Capital II, L.P., a Delaware
limited partnership, Constellation Venture Capital Offshore II, L.P., a Cayman
Islands limited partnership, The BSC Employee Fund IV, L.P., a Delaware limited
partnership, and CVC II Partners, L.L.C., a Delaware limited liability company
(the "CONSTELLATION ENTITIES") are becoming, simultaneously herewith, parties to
the Investor Rights Agreement pursuant to a Joinder Agreement dated as of the
date hereof;
WHEREAS, pursuant to Section 12(f) of the Investor Rights
Agreement, the Company, WCAS and Reuters may modify or amend the Investor Rights
Agreement to provide for certain registration rights to the Constellation
Entities; and
WHEREAS, the Company, WCAS and Reuters wish to amend the
Investor Rights Agreement;
NOW, THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
AMENDMENTS
Section 1.01 Amendment to Preamble. The definition of "Other
Investors" set forth in the preamble to the Investor Rights Agreement is hereby
amended and restated in its entirety to read as follows:
"`OTHER INVESTORS' means the individuals and entities that
hold Preferred Stock or Warrants that are listed under "Other
Investors" on the signature pages hereto or become a party to this
Agreement in accordance with Section 10 hereof; provided, however, that
the SAVVIS Stock holdings of the Constellation Entities shall be
aggregated for the purposes of this definition."
Section 1.02 Amendment to "Whereas" Clause. The definition of
"Warrants" is hereby amended to include the "Constellation Warrants."
Section 1.03 Amendments to Section 1.
(a) Section 1 is hereby amended to add the following
definitions:
"`CONSTELLATION ENTITIES' means Constellation Venture Capital
II, L.P., a Delaware limited partnership, Constellation Venture Capital
Offshore II, L.P., a Cayman Islands limited partnership, The BSC
Employee Fund IV, L.P., a Delaware limited partnership, and CVC II
Partners, L.L.C., a Delaware limited liability company and their
Permitted Transferees.
`CONSTELLATION WARRANTS' means the warrants to purchase an
aggregate of 10,000,000 shares of Common Stock issued to the
Constellation Entities on the date hereof."
(b) The following definition in Section 1 is hereby amended
and restated in its entirety to read as follows:
""ELIGIBLE INVESTOR' means at any time (a) WCAS or its
Permitted Transferees, Reuters, the Constellation Entities (considered
together as one Person) or any Other Investor (other than Nortel
Networks or GECC), so long as such Person owns Preferred Stock
representing at least ten percent (10%) of the then outstanding voting
power of Savvis and (b) WCAS (together with its Affiliates), Reuters,
the Constellation Entities (considered together as one Person) or any
Other Investor (other than Nortel Networks or GECC), so long as each
such Person owns Savvis Stock representing at least five percent (5%)
of the outstanding Savvis voting power."
Section 1.04 Amendments to Section 3(a). Section 3(a) is
hereby amended and restated in its entirety to read as follows:
"(a) Demand Registration Rights. If SAVVIS shall at any time
after the Effective Date, be requested by WCAS, Reuters, a
Constellation Entity, any Other Investor (other than a Constellation
Entity) constituting an Eligible Investor or the holders of at least
25% of the Covered Warrant Common Shares (other than Covered Warrant
Common Shares issued or issuable upon exercise of the Constellation
Warrants) in a writing that states the number of shares of Restricted
Stock to be sold and the intended method of disposition thereof (each
such written request, a "DEMAND NOTICE"), to effect a registration
under the Securities Act of all or any portion of the Restricted Stock
then held by such person or issuable upon conversion of Preferred Stock
or upon exercise of Warrants or Constellation Warrants then held by
such person, SAVVIS shall immediately notify in writing (each such
notice, a "DEMAND FURTHER NOTICE") each other Investor (other than the
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requesting Investor) of such proposed registration and shall use its
reasonable best efforts to register under the Securities Act (each such
registration, a "DEMAND REGISTRATION"), for public sale in accordance
with the method of disposition specified in such Demand Notice, the
number of shares of Restricted Stock specified in such Demand Notice
(plus the number of shares of Restricted Stock specified in any written
requests for registration of shares of Restricted Stock that are
received from other Investors (other than the requesting Investors)
within 30 days after receipt by such other Investors of a Demand
Further Notice). Notwithstanding anything to the contrary contained
herein, SAVVIS shall not be obligated pursuant to this paragraph (a) to
file and cause to become effective (i) more than two Demand
Registrations in the aggregate requested by WCAS or its Permitted
Transferees, two Demand Registrations in the aggregate requested by
Reuters or its Permitted Transferees, two Demand Registrations in the
aggregate requested by the Constellation Entities or their Permitted
Transferees, two Demand Registrations in aggregate requested by Other
Investors (other than the Constellation Entities) constituting Eligible
Investors, and one Demand Registration by holders of the Covered
Warrant Common Shares (other than Covered Warrant Common Shares issued
or issuable upon exercise of the Constellation Warrants) or (ii) any
Demand Registration with a proposed aggregate offering price of less
than $25.0 million."
Section 1.05 Amendment to Section 3(c)(iii). Section 3(c)(iii)
is hereby amended to add a proviso to the end to read as follows:
"; provided, however, that with respect to any request for a Demand
Registration or Short Form Registration requested by any of the
Constellation Entities, none of the WCAS Investors may sell shares in
such registration unless the Constellation Entities are permitted to
sell in such registration at least 50% of the shares of the Restricted
Stock that they requested to be included."
Section 1.06 Amendment to Section 3(d). Section 3(d) is hereby
amended to add the following after the words "for sale to the public," in the
first sentence thereof:
"(other than a Demand registration or Short Form Registration
pursuant to Sections 3(a) or 3(b) hereof)"
Section 1.07 Amendment to Section 3(e). Section 3(e) is hereby
amended to add a second proviso to the end of the clause to read as follows:
"provided, further, however, that the Constellation Entities may make a
distribution in kind of their shares of Restricted Stock to their
limited partners or members during such period of distribution so long
as limited partners or members agree to be bound by the terms of this
Section 3(e)."
Section 1.08 Amendment to Section 12(d). Clause (ii) of the
proviso at the end of the third sentence of Section 12(d) is hereby amended and
restated in its entirety to read as follows:
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"(ii) the rights of Investors (other than Nortel Networks,
GECC and the Constellation Entities) under Section 3(a) will not be
transferable to or exercisable by a Permitted Transferee unless such
Permitted Transferee purchases and continues to hold Restricted Stock
representing at least five (5%) (on a fully diluted basis) of the
voting capital stock of SAVVIS."
ARTICLE II.
MISCELLANEOUS
Section 2.01 Headings. Headings of sections and paragraphs of
this Amendment are inserted for convenience of reference only and shall not
affect the interpretation or be deemed to constitute a part hereof.
Section 2.02 Severability. In the event that any one or more
of the provisions contained in this Amendment 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 Amendment.
Section 2.03 Governing Law. This Amendment 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.
Section 2.04 Counterparts. This Amendment 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.
Section 2.05 Continuing Effect of Investor Rights Agreement.
This Amendment shall not constitute an amendment or waiver of any other
provision of the Investor Rights Agreement not expressly referred to herein.
Except as expressly amended hereby, the provisions of the Investor Rights
Agreement shall remain in full force and effect.
Section 2.06 Effectiveness. This Amendment shall become
effective on the date hereof.
Section 2.07 Joinder. WCAS and the Company hereby consent to
the Constellation Entities becoming parties to the Investor Rights Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed and delivered this Amendment as of the day and year first above
written.
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Lane X. Xxxxxxxxxx
Name: Lane X. Xxxxxxxxxx
Title: Vice President and Acting General Counsel
WELSH, CARSON, XXXXXXXX
& XXXXX VIII, L.P.
By WCAS VIII Associates LLC,
General Partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Member
REUTERS HOLDINGS SWITZERLAND SA
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Attorney-In-Fact
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