EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 16, 2001, by
and between SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Company"), REUTERS HOLDINGS SWITZERLAND SA, a societe anonyme organized under
the laws of Switzerland ("Reuters").
W I T N E S S E T H:
WHEREAS, Reuters and Savvis are parties to a Securities
Purchase Agreement, dated as of May 16, 2001 (the "Purchase Agreement"),
pursuant to which Savvis desires to sell to Reuters, its successors and
permitted assigns up to $45,000,000 aggregate principal amount of 12%
Convertible Senior Notes of Savvis convertible into a number of shares of common
stock or convertible preferred stock determined in accordance with Section 15
thereof (the "Savvis Common Shares");
WHEREAS, in order to induce Reuters to enter into the
Purchase Agreement and consummate the transactions contemplated thereby, Savvis
has agreed to grant Reuters certain registration rights with respect to the
Savvis Common Shares as set forth herein;
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 Reuters 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, Reuters shall deliver notice thereof to Savvis.
(b) Securities Law Compliance. Reuters 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
Reuters 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. Reuters
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 Weil, Gotshal &
Xxxxxx LLP shall be satisfactory) 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 Reuters to its affiliates or, if
any such entity is a partnership or limited liability company, a transfer by
Reuters 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 Weil,
Gotshal & Xxxxxx LLP shall be satisfactory), all certificates representing
shares of Restricted Stock that are held by Reuters 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 Reuters, 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 Reuters, Savvis shall use its
reasonable best efforts to register under the Securities Act (each such
2
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. 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 Reuters, 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 "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
Reuters , Savvis 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 Registration Notice, the number of
shares of Restricted Stock specified therein within 30 days); provided, Reuters
shall not have the right to request a Short Form Registration unless the
proposed aggregate net proceeds (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 Reuters, 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 Reuters 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;
3
(iii) if the proposed method of disposition specified by
Reuters shall be an underwritten public offering, the number
of shares of Restricted Stock to be included in such an
offering may be reduced 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 Reuters shall be an underwritten public offering,
Reuters shall choose the managing underwriter (which shall be
a nationally recognized investment banking firm reasonably
acceptable to Savvis;
(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 Reuters, 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, 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.
(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
Reuters of its intention to do so. Subject to paragraph (j) below, upon the
4
written request of Reuters, 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 Reuters (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 Reuters 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 all requesting stockholders based on the number of shares of
common stock of Savvis so requested to be registered) 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 Reuters does not elect to sell its Restricted
Stock to the underwriters of Savvis's securities in connection with such
offering, Reuters 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, Reuters 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, Reuters 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, Reuters
shall not sell Savvis Common Stock held by Reuters for a period of 180 days from
the effective date of the registration statement relating thereto.
(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 Reuters
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);
5
(ii) prepare (and afford counsel for the selling Reuters
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 Reuters'
intended method of disposition set forth in such registration
statement for such period;
(iii) furnish to Reuters 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 Reuters 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 Reuters 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 Reuters, on the
date that Restricted Stock is delivered to the 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
Reuters, 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 Reuters or its counsel, and
(B) a letter dated such date from the independent public
accountants retained by Savvis, addressed to the underwriters,
6
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 Reuters, any
underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other
agent retained by Reuters 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 Reuters,
underwriter, attorney, accountant or agent in connection with
such registration statement and permit Reuters or such,
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 Reuters. In connection with each
registration hereunder, Reuters 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.
(h) Underwriting Agreement. In connection with any
registration pursuant to this Section 3 that covers an underwritten public
offering, Savvis and Reuters 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 Reuters.
7
(i) Expenses. Savvis will pay all Registration Expenses
incurred in complying with Section 3 of this Agreement. 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(k). Reuters agrees that during
any period in which Reuters is eligible to sell all of its shares of Restricted
Stock pursuant to Rule 144(k), Reuters 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 Reuters. 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, 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.
8
(b) Reuters' 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.
(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
9
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, 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
10
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
Reuters 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 Reuters, make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the Securities Act. Upon the written
request of Reuters, Savvis shall promptly furnish to Reuters 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 Reuters 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 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.
11
SECTION 8. Miscellaneous.
(a) Additional Registration Rights. Without the consent of
Reuters, Savvis shall not grant any registration rights to any other person that
are senior to or 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 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 Reuters. 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:
(i) if to Savvis, to it at the address or facsimile number set
forth for such party on the signature page hereto: and
(ii) if to Reuters, at such address or facsimile number as may
have been furnished to the other parties hereto in writing by
Reuters;
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.
12
(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.
* * * * *
13
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 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
REUTERS HOLDINGS SWITZERLAND SA
By /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
Address: c/o Reuters America Inc.
The Reuters Building
0 Xxxxx Xxxxxx -00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
14
