-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UeZ5xDGIBuQw4PMqfXI6997Ty1Y+yeSO/eaPmc8gkI4fA+lXzRWGLxtYickksyV3 mfFNC65mRgSpZY1KMFqLvQ== 0001005150-02-000855.txt : 20020709 0001005150-02-000855.hdr.sgml : 20020708 20020708170631 ACCESSION NUMBER: 0001005150-02-000855 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20020628 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020708 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAVVIS COMMUNICATIONS CORP CENTRAL INDEX KEY: 0001058444 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 431809960 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-29375 FILM NUMBER: 02698107 BUSINESS ADDRESS: STREET 1: 12851 WORLDGATE DRIVE CITY: HERNDON STATE: VA ZIP: 20170 BUSINESS PHONE: 7032348000 MAIL ADDRESS: STREET 1: 12851 WORLDGATE DRIVE CITY: HERNDON STATE: VA ZIP: 20170 FORMER COMPANY: FORMER CONFORMED NAME: SAVVIS HOLDINGS CORP DATE OF NAME CHANGE: 19991020 8-K 1 form_8k.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): June 28, 2002 ------------- SAVVIS COMMUNICATIONS CORPORATION --------------------------------- (Exact name of registrant as specified in its charter) Delaware 0-29375 43-1809960 -------- ------- ---------- (State or Other Jurisdiction (Commission File (IRS Employer of Incorporation or Organization) Number) Identification No.) 12851 Worldgate Drive, Herndon, Virginia 20170 ---------------------------------------- ----- (Address of Principal Executive Office) (Zip Code) Registrant's telephone number, including area code: (703) 234-8000 -------------- ------------------------------------------------------ (Former Name or Former Address, if Changed Since Last Report) ------------------------ ITEM 5. OTHER EVENTS. On June 28, 2002, the registrant issued an aggregate of 20,000 shares of the registrant's Series A Convertible Preferred Stock, par value $.01 per share, at a purchase price of $1,000 per share to Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P., and CVC II Partners, L.L.C., pursuant to a securities purchase agreement, dated as of June 28, 2002, among the registrant and such entities. Registrant also issued five-year performance warrants to the purchasers to acquire 10,000,00 shares of common stock at $0.75 per share. In addition, the purchasers became a party to an investor rights agreement, dated as of March 6, 2002, among the registrant, Welsh, Carson, Anderson & Stowe VIII, L.P., the various entities and individuals affiliated with Welsh, Carson, Anderson & Stowe VIII, L.P. listed on the signature pages thereto, Reuters Holdings Switzerland SA and the Other Investors (as defined therein). ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (c) Exhibits. 4.7 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to Constellation Venture Capital II, L.P. 4.8 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to Constellation Venture Capital Offshore II, L.P. 4.9 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to The BSC Employee Fund IV, L.P. 4.10 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to and CVC II Partners, L.L.C. 10.1 Securities Purchase Agreement, dated as of June 28, 2002, among the registrant, Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P., and CVC II Partners, L.L.C. 10.2 Amendment No. 1, dated June 28, 2002, to the Investor Rights Agreement, dated as of March 6, 2002, among the registrant, Welsh, Carson, Anderson & Stowe VIII, L.P., the various entities and individuals affiliated with Welsh, Carson, Anderson & Stowe VIII, L.P. listed on the signature pages thereto, Reuters Holdings Switzerland SA and the Other Investors (as defined therein). 10.3 Joinder Agreement, dated June 28, 2002, between registrant, Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P., and CVC II Partners, L.L.C. 10.4 Board Letter, dated June 28, 2002, to Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P., and CVC II Partners, L.L.C. from registrant, Welsh, Carson, Anderson & Stowe VIII, L.P., Welsh, Carson, Anderson & Stowe VII, L.P., Welsh, Carson, Anderson & Stowe VI, L.P., and WCAS Management Corporation. 99.1 Press release, dated June 30, 2002. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized. SAVVIS COMMUNICATIONS CORPORATION Date: July 8, 2002 By: /s/ John M. Finlayson ---------------------------- Name: John M. Finlayson Title: President and Chief Operating Officer EXHIBIT INDEX -------------
Exhibit No. Description ----------- ----------- 4.7 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to Constellation Venture Capital II, L.P. 4.8 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to Constellation Venture Capital Offshore II, L.P. 4.9 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to The BSC Employee Fund IV, L.P. 4.10 Warrant, dated June 28, 2002, to purchase the registrant's common stock issued to and CVC II Partners, L.L.C. 10.1 Securities Purchase Agreement, dated as of June 28, 2002, among the registrant, Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P., and CVC II Partners, L.L.C. 10.2 Amendment No. 1, dated June 28, 2002, to the Investor Rights Agreement, dated as of March 6, 2002, among the registrant, Welsh, Carson, Anderson & Stowe VIII, L.P., the various entities and individuals affiliated with Welsh, Carson, Anderson & Stowe VIII, L.P. listed on the signature pages thereto, Reuters Holdings Switzerland SA and the Other Investors (as defined therein). 10.3 Joinder Agreement, dated June 28, 2002, between registrant, Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P., and CVC II Partners, L.L.C. 10.4 Board Letter, dated June 28, 2002, to Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P., and CVC II Partners, L.L.C. from registrant, Welsh, Carson, Anderson & Stowe VIII, L.P., Welsh, Carson, Anderson & Stowe VII, L.P., Welsh, Carson, Anderson & Stowe VI, L.P., and WCAS Management Corporation. 99.1 Press release, dated June 30, 2002.
EX-4.7 3 ex4-7.txt EXHIBIT 4.7 EXHIBIT 4.7 CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND THE STATE ACTS. 5,287,841 Shares of Common Stock Warrant No. 3 WARRANT To Purchase Common Stock of SAVVIS Communications Corporation, a Delaware corporation 1. GRANT OF WARRANT. THIS IS TO CERTIFY THAT Constellation Venture Capital II, L.P., a Delaware limited partnership, or its registered assigns (the "Holder"), is entitled to exercise this Warrant to purchase from SAVVIS Communications Corporation, a Delaware corporation (the "Company"), up to an aggregate of 5,287,841 shares of common stock, par value $0.01 per share, of the Company (the "Common Stock"), subject to adjustment as set forth in accordance with Section 5 and exercisable in accordance with Section 3, all on the terms and conditions and pursuant to the provisions hereinafter set forth. This Warrant is being granted pursuant to the terms of that certain Securities Purchase Agreement dated as of June 28, 2002, (the "Agreement") by and among the Company and Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P. and CVC II Partners, L.L.C. (the "Constellation Entities"), and the Company and the Constellation Entities intend to be legally bound hereby and thereby. Any capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Agreement. 2. EXERCISE PRICE. The purchase price payable for each of the shares of Common Stock sold upon exercise of this Warrant shall be $0.75 (the "Exercise Price"). Such Exercise Price and the number of shares of Common Stock into which this Warrant is exercisable are subject to adjustment from time to time as provided in Section 5. 3. EXERCISE. This Warrant may be exercised in whole or in part at any time prior to January 28, 2007 (the "Expiration Date") with respect to that number of shares of Common Stock indicated on Schedule A hereto, subject to adjustment in accordance with Section 5. In order to exercise this Warrant, in whole or in part, the Holder hereof shall deliver to the Company at its principal office at 12851 World Gate Drive, Herndon, Virginia 20170, or at such other office as shall be designated by the Company pursuant to the Agreement: (a) written notice of the Holder's election to exercise this Warrant, which notice shall be substantially in the form of the attached "Subscription Form" and shall specify the number of shares of Common Stock to be purchased pursuant to such exercise; (b) either (i) a wire transfer of immediately available funds to the Company or (ii) notice that the Exercise Price is satisfied by reduction of the number of shares to be received by the Holder upon exercise of this Warrant as provided in Section 4 below, with the amount of such reduction specified in such notice; in each case such wire transfer or reduction in the number of shares shall be in an amount equal to the aggregate purchase price for all shares of Common Stock to be purchased pursuant to such exercise; and (c) this Warrant, properly endorsed. Upon receipt thereof, the Company shall, as promptly as practicable, and in any event within ten (10) days thereafter, execute or cause to be executed and delivered to the Holder a certificate or certificates representing the aggregate number of full shares of Common Stock issuable upon such exercise. The stock certificate or certificates so delivered shall be registered in the name of the Holder or such other name as shall be designated in said notice. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a Holder of record of such shares for all purposes, as of the date of that said notice, together with said payment and this Warrant, is received by the Company as aforesaid (the "Exercise Date"). Except as otherwise provided in the Agreement or this Warrant, the Holder of this Warrant shall not, by virtue of its ownership of this Warrant, be entitled to any rights of a stockholder in the Company, either at law or in equity; provided, however, that the Holder shall, for all purposes, be deemed to have become the Holder of record of such shares on the Exercise Date. If the exercise is for less than all of the shares of Common Stock issuable as provided in this Warrant, the Company shall issue a new Warrant of like tenor and date for the balance of such shares issuable hereunder to the Holder. The Holder of this Warrant, by its acceptance hereof, consents to and agrees to be bound by and to comply with all of the provisions of this Warrant. -2- 4. "CASHLESS" EXERCISE. At the option of the Holder, the Holder may exercise this Warrant without a cash payment of the Exercise Price, by designating that the number of the shares of Common Stock issuable to the Holder upon such exercise shall be reduced by the number of shares having a Current Market Value as of the Exercise Date equal to the amount of the total Exercise Price for such exercise. In such instance, no cash or other consideration will be paid by the Holder in connection with such exercise other than the surrender of the Warrant itself, and no commission or other remuneration will be paid or given by the Holder or the Company in connection with such exercise. If such exercise results in only a partial exercise of this Warrant, then the Company shall deliver to the Holder a new Warrant evidencing the remaining rights under the Warrant, as provided in Section 3 above. "Current Market Value" means, on any date, the average of the daily closing market prices for each day for five trading days ending one business day before such date as of which such a price can be established in the manner set forth below. The closing market price for each such trading day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. If there is no active public market, the value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. 5. ADJUSTMENTS. If any of the following events shall occur at any time or from time to time prior to the exercise of the Warrant, the following adjustments shall be made in the Exercise Price and/or the number of shares then purchasable upon the exercise of the Warrant, as appropriate: (a) "Stock Splits and Combinations". In case the Company shall at any time or from time to time after the Closing Date (i) subdivide or split the outstanding shares of Common Stock, (ii) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares or (iii) issue by reclassification of the shares of Common Stock any shares of capital stock of the Company, then, and in each such case, the Exercise Price in effect immediately prior to such event or the record date therefor, whichever is applicable, shall be proportionately increased or reduced, as applicable, and the aggregate number of shares for which the Warrant shall be exercisable shall be proportionately increased or reduced, as applicable, so that the Holder of the Warrant thereafter surrendered for exercise shall be entitled to receive the number of shares of Common Stock or other securities of the Company which such Holder would have owned or have been entitled to receive after the occurrence of any of the events described above, had such Warrant been surrendered for conversion immediately prior to the occurrence of such event or the record date therefor, whichever is applicable. An adjustment made pursuant to this subparagraph (a) shall become effective at the close of business on the day upon which such corporate action becomes effective. Such adjustment shall be made successively whenever any event listed above shall occur. (b) "Dividends and Distributions in Common Stock". In case the Company shall at any time or from time to time after the Closing Date pay a dividend or make a distribution payable in shares of Common Stock on any class of Capital Stock of the Company other than -3- dividends or distributions of shares of Common Stock or other securities with respect to which adjustments are provided in paragraph (a) above, the Exercise Price shall be reduced to the price determined by multiplying (i) the applicable Exercise Price by (ii) a fraction, the numerator of which shall be the number of shares of Common Stock theretofore outstanding and the denominator of which shall be the sum of such number of shares and the total number of shares issuable in such dividend or distribution. The provisions of this clause shall similarly apply to successive distributions. (c) "Distribution of Indebtedness, Securities or Assets". In case the Company shall at any time or from time to time after the Closing Date distribute to any holders of Common Stock (whether by dividend or in a merger, amalgamation, consolidation or otherwise) evidences of indebtedness, shares of Capital Stock of any class or series, other securities, cash or assets (other than securities referred to in subparagraph (b) above or (e) below or a dividend payable exclusively in cash and other than as a result of a Fundamental Change) in respect of such holder's Common Stock, the Exercise Price in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such distribution shall be reduced by multiplying such Exercise Price by a fraction, the numerator of which is the Volume Weighted Market Value on such record date less the fair market value (as determined by the Board of Directors of the Company, whose determination in good faith shall be conclusive) of the portion of such evidences of indebtedness, shares of Capital Stock, other securities, cash and assets so distributed applicable to one share of Common Stock and the denominator of which is the Volume Weighted Market Value. Such adjustment shall be made successively whenever any such event shall occur. "Capital Stock" means as to any entity (whether a corporation, partnership or another entity), corporate stock and any and all shares, partnership interests, limited partnership interests, limited liability company interests, membership interests, equity interests, participations, rights or other equivalents (however designated) of corporate stock or any of the foregoing issued by any such entity. "Volume Weighted Market Value" means, at any date, the price per share of Common Stock which equals (i) the sum of the products, for each of the prior 20 trading days, of the Closing Market Price on such day, multiplied by the volume of shares traded on such day, (ii) divided by the total volume of shares traded the prior 20 trading days. If no Closing Market Price for shares of Common Stock can be determined, the Volume Weighted Market Value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. For purposes of this definition, "Closing Market Price" means, on any trading day, the last sale price for shares of Common Stock on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. (d) "Fundamental Changes". In case of any Fundamental Change, this Warrant shall be exercisable for the kind and amount of stock, other securities, cash and assets that it would have been exercisable for prior thereto (or anything that such stock, other securities or assets are later converted or changed into); provided, however, that in the event such Fundamental Change shall result in a successor entity to the Company, at the option of such successor entity, such Warrant shall immediately become exercisable at the time of such Fundamental Change for the -4- aggregate number of shares of Common Stock represented by this Warrant notwithstanding the provisions of Schedule A. In the event a successor entity does not elect to fully vest the Warrant as provided in the proviso of the immediately preceding sentence, such successor entity shall assume in writing all of the obligations of the Company under this Warrant (in form and substance reasonably satisfactory to the Holder). In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5 with respect to the rights of the Holder of the Warrant after the Fundamental Change to the end that the provisions of this Section 5 shall be applicable after that event in a manner as nearly equivalent as practicable as before the Fundamental Change. "Fundamental Change" means any transaction or event, including, without limitation, any merger, consolidation, sale of assets, reclassification, recapitalization, compulsory share exchange or liquidation, in which all or substantially all outstanding shares of the Company's common stock are converted into or exchanged for stock, other securities or assets. (e) "Adjustment of Exercise Price Upon Issuance of Additional Shares of Common Stock". (i) In the event the Company shall issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 5(e)(ii)), without consideration or for a consideration per share less than the Exercise Price in effect on the date of and immediately prior to such issue, then, and in each such event, the Exercise Price will be recalculated in accordance with the following formula: the Exercise Price then in effect shall be multiplied by a fraction, (x) the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance ("Outstanding Common Stock") plus the number of shares of Common Stock that the aggregate consideration (determined in the manner provided in Section 5(e)(iii)) received by the Company for such issuance would purchase at the Exercise Price in effect immediately prior to such issuance; and (y) the denominator of which shall be the number of shares of Outstanding Common Stock plus the number of Additional Shares of Common Stock. For purposes of the foregoing calculation, the term "Outstanding Common Stock" shall include, without limitation, shares of Common Stock issued or issuable upon the exercise, exchange or conversion of outstanding securities, excluding Common Stock issuable upon the exercise, exchange or conversion of options, warrants or similar rights to acquire Common Stock, at a price greater than the Volume Weighted Market Value as of the date of adjustment. "Additional Shares of Common Stock" means any shares of Common Stock issued (or deemed to have been issued pursuant to Section 5(e)(ii)) by the Company other than: (a) Common Stock issued pursuant to a transaction described in Section 5(a) or 5(b), (b) shares of Common Stock issued or issuable upon conversion of the Company's Series A Convertible Preferred Stock, (c) in addition to the shares of Common Stock described in (d) below, shares of Common Stock or options, warrants or similar rights to purchase shares of Common Stock, which shares are issuable or issued to employees, consultants or directors of the Company directly or pursuant to a stock option, restricted stock, employee stock purchase or similar plan approved by the Board of Directors of the Company, and (d) shares of Common Stock issued or issuable upon conversion of all securities convertible, exchangeable or exercisable for, or rights to purchase, shares of Common Stock validly issued and outstanding as of the Closing Date. -5- (ii) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms or by agreement with the Company convertible into or exchangeable for Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall be taken into account in making the adjustment: (A) The shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Section 5(e)(iii)), if any, received by the Company upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby. (B) The aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange (assuming the satisfaction of any condition to convertibility or exchangeability, including without limitation, the passage of time, but without taking into account potential antidilution adjustments, accrual of dividends or payment of any premiums or preferences conditioned upon the occurrence of specified transactions) for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Company (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Section 5(e)(iii)). (iii) In the case of the issuance of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and sale thereof. In the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors of the Company irrespective of any accounting treatment. (iv) Notwithstanding any other provisions of this Section 5(e), no adjustment of the Exercise Price pursuant to this Section 5(e) shall have the effect of increasing the Exercise Price above the Exercise Price in effect immediately prior to such adjustment. (f) "Number of Shares Upon Adjustment of Exercise Price". Upon each adjustment of the Exercise Price, the Holder of a Warrant shall thereafter be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of shares obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares -6- purchasable pursuant to such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. 6. TAXES. The issuance of any Common Stock or other certificate upon the exercise of this Warrant shall be made without charge to the registered Holder hereof, or for any tax in respect of the issuance of such certificate, unless such tax is imposed by law upon the Holder (including, without limitation, Federal, state or local income taxes), in which case such taxes shall be paid by the Holder. The obligations of the parties under this Section shall survive any redemption, repurchase or acquisition of this Warrant or the Common Stock issued upon exercise of this Warrant by the Company, and any cancellation or termination of this Warrant. 7. TRANSFER. Except as otherwise provided under the Agreement, this Warrant and all options and rights hereunder are transferable, as to all or any part of the number of shares of Common Stock purchasable upon its exercise, by the Holder hereof in person or by its duly authorized attorney on the books of the Company upon surrender of this Warrant at the principal offices of the Company, together with the "Assignment Form" attached hereto duly executed. The Company shall deem and treat the registered Holder of this Warrant at any time as the absolute owner hereof for all purposes and shall not be affected by any notice to the contrary. If this Warrant is transferred in part, the Company shall, at the time of surrender of this Warrant, issue to the transferee a Warrant covering the number of shares of Common Stock transferred and to the transferor a Warrant covering the number of shares not transferred. 8. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon the exercise of this Warrant and, in lieu thereof, any fractional shares shall be rounded down to the nearest whole. 9. REGISTRATION RIGHTS. The Common Stock into which this Warrant is exercisable is subject to that certain Investor Rights Agreement by and among the Company and certain other parties dated as of March 6, 2002, as such agreement may be amended from time to time. 10. RESERVATION OF SHARES. The Company shall, at all times after the Consent Effectiveness Date (as defined in the Agreement) prior to the Expiration Date, reserve and keep available such number of authorized shares of its Common Stock, solely for the purpose of effecting the exercise of this Warrant, as may from time to time be issuable upon exercise of this Warrant. If, at any time, the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the exercise of the Warrant or otherwise to comply with the terms of the Agreement, the Company shall forthwith use commercially reasonable efforts to take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. The Company shall use commercially reasonable efforts to obtain any authorization, consent, approval or other action by or make any filing with any court or administrative body that may be required under applicable state securities laws in connection with the issuance of shares of Common Stock upon exercise of the Warrant. 11. APPLICABLE LAW. THIS WARRANT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK -7- WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF. EACH OF THE PARTIES HEREBY SUBMITS TO PERSONAL JURISDICTION AND WAIVES ANY OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. SERVICE OF PROCESS ON THE PARTIES IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE EFFECTIVE IF MAILED TO THE PARTIES IN ACCORDANCE WITH SECTION 8.04 OF THE AGREEMENT. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS HEREUNDER. 12. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby shall inure to the benefit of, and be binding upon, the successors and assigns of the Holder hereof and shall be enforceable by any such Holder. In the event this Warrant is sold, transferred or assigned, the transferor will give written notice to the Company within fifteen (15) days following such sale, transfer or assignment and in such notice designate the name and address of the transferee. 13. EXCHANGE OF CERTIFICATES FOR WARRANTS. This Warrant may be exchanged, at the option of the Holder, and upon surrender of such Warrant to the Company, for another Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of shares of Common Stock. The Holder shall make such request in a writing delivered to the Company, and must surrender the Warrant to be so exchanged. Thereupon, the Company will execute and deliver to the Holder the new Warrants so requested. The Warrant surrendered for exchange will be cancelled by the Company. 14. REPLACEMENT OF INSTRUMENTS. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any certificate or instrument evidencing this Warrant, and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the Holder is an institutional lender or investor, its own agreement of indemnity shall be deemed to be satisfactory), or (b) in the case of mutilation, upon surrender or cancellation thereof, the Company, at its expense, shall execute, register and deliver, in lieu thereof, a new certificate or instrument for (or covering the purchase of) an equal number of shares of Common Stock. 15. INFORMATION RIGHTS; INSPECTION RIGHTS. Within ten (10) days of the end of every calendar month, the Company shall provide the Holder with a written report detailing the progress of the Constellation Entities towards achieving the revenue targets set forth on Schedule A. The Holder shall have the right, at any time, upon reasonable notice and during normal business hours, to audit the books and records of the Company to confirm the information set forth in the Company's monthly reports. 16. NOTICES OF CERTAIN EVENTS. (a) In the event of (i) any setting by the Company of a record date with respect to the holders of any class of securities of the Company for the purpose of determining which of such holders are entitled to dividends or other distributions, or any right to subscribe for, purchase or otherwise acquire any shares of Common Stock or any other securities or property, or to receive any other right; (ii) any capital reorganization of the Company, or reclassification or -8- recapitalization of the Common Stock of the Company or any transfer of all or substantially all of the assets of the Company to, or consolidation or merger of the Company with or into, any other entity or Person; or (iii) any involuntary dissolution, liquidation or winding-up of the Company; then, and in each such event, the Company will mail or cause to be mailed to the Holder of the Warrant at the time (as reflected in the records of the Company), a notice specifying, as the case may be: (A) the date on which any such record is to be set for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right; or (B) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is to take place and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other Capital Stock or securities receivable upon the exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other Capital Stock or securities) for securities or other property deliverable upon such event. Any such notice shall be given, as provided in Section 8.04 of the Agreement, at least fifteen (15) days prior to the date therein specified and the Holder of the Warrant may exercise its Warrant at any time within the fifteen (15) day period from the date of mailing of such notice. (b) If there shall be any adjustment as provided in Section 5, or if the securities or property other than shares of Common Stock of the Company shall become purchasable in lieu of shares of such Common Stock upon exercise of the Warrant, the Company shall forthwith cause written notice thereof to be sent, as provided in Section 8.04 of the Agreement, to the Holder of the Warrant at the address of such Person shown on the books of the Company, which notice shall be accompanied by a certificate of the chief financial officer of the Company setting forth in reasonable detail the basis for the Holder becoming entitled to purchase such shares and the number of shares that may be purchased and the Exercise Price thereof, or the facts requiring any such adjustment and the Exercise Price and the number of shares purchasable after such adjustment, or the kind and amount of any such securities or property so purchasable upon the exercise of the Warrant, or the number of shares issued to the Holder as ownership protection, as the case may be. At the request of the Holder and upon surrender of the Warrant, the Company shall reissue the Warrant in a form conforming to such adjustments. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -9- IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and issued on its behalf. DATED as of June 28, 2002. SAVVIS COMMUNICATIONS CORPORATION A DELAWARE CORPORATION By: /s/ Lane H. Blumenfled Name: Lane H. Blumenfeld Title: Vice President and Acting General Counsel -10- SUBSCRIPTION FORM (To be executed only upon exercise of Warrant) The undersigned registered owner of this Warrant irrevocably exercises this Warrant for and purchases ________ shares of Common Stock of SAVVIS Communications Corporation, a Delaware corporation, purchasable with this Warrant, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant and requests that certificates for the shares of Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to ________________________ whose address is ________________________________, and if such shares of Common Stock shall not include all of the shares of Common Stock issuable as provided in this Warrant, that a new Warrant of like tenor and date for the balance of the shares of Common Stock issuable thereunder to be delivered to the undersigned. DATED: _________________, _____. ____________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ Address: _______________________ _______________________ _______________________ ASSIGNMENT FORM FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under this Warrant, with respect to the number of shares of Common Stock set forth below: Name and Address of Assignee No. of Shares ---------------------------- Common Stock ------------- and does hereby irrevocably constitute and appoint as Attorney _________________ to register such transfer on the books of _____________________________ maintained for the purpose, with full power of substitution in the premises. DATED: _________________, _____. ____________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatever. ACKNOWLEDGMENT BY ASSIGNEE The undersigned Assignee hereby acknowledges receipt of the Warrant Agreement, and agrees to be bound by its terms. __________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ SCHEDULE A At all times on and after the first date that the Company and its Subsidiaries have, in the aggregate, [**] determined in accordance with GAAP of at least (i) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall equal [**] (subject to adjustment in accordance with Section 5), (ii) [**]the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5) and (iii) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5), in each case from any combination of the following: (a) [**] in which any of the [**]directly or indirectly, [**]to the Company or its Subsidiaries or otherwise [**]; (b) [**] and (c) [**] (collectively, (a) through (c) are the "Covered Transactions"); provided, however, that (x) there shall be excluded from such [**]and (y) for the avoidance of doubt, there shall be included in such [**] with respect to any entity which is a part of the same organization as an entity whose [**] would be included in a Covered Transaction, such as a subsidiary, parent company, division or business unit of any such entity. "Affiliate" means, as to any Person, any other Person (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with such Person. For purposes of this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. In the event the Company and the Constellation Entities are unable to reach agreement within twenty (20) days of a transaction as to whether such transaction is a Covered Transaction, this determination shall be made in arbitration pursuant to the then-current Commercial Rules and supervision of the American Arbitration Association (the "AAA"). The arbitration shall be held in New York, New York. The Company , on the one hand, and the Constellation Entities, on the other hand, shall appoint one arbitrator within twenty (20) days of receipt by the respondent of the notice of arbitration. The two arbitrators appointed by such parties shall, within twenty (20) days after their appointment, appoint a third, presiding arbitrator. If either such party fails to nominate an arbitrator, or the two arbitrators appointed by such parties are unable to appoint a presiding arbitrator within the stated periods, the second or presiding arbitrator, as the case may be, shall be appointed by the AAA. All arbitrators shall be fluent in English and all hearings shall be conducted in the English language. The arbitrators shall, by majority vote, render a written decision stating reasons therefor. The arbitrators' decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The costs and expenses of the arbitration shall be paid by the losing party. The parties hereto will use their reasonable best efforts to cause the arbitrators hereunder to render a final and binding decision within ninety (90) days following the commencement of any such proceeding. [**] CONFIDENTIAL TREATMENT REQUESTED EX-4.8 4 ex4-8.txt EXHIBIT 4.8 EXHIBIT 4.8 CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND THE STATE ACTS. 2,499,930 Shares of Common Stock Warrant No. 4 WARRANT To Purchase Common Stock of SAVVIS Communications Corporation, a Delaware corporation 1. GRANT OF WARRANT. THIS IS TO CERTIFY THAT Constellation Venture Capital Offshore II, L.P., a Cayman Islands limited partnership, or its registered assigns (the "Holder"), is entitled to exercise this Warrant to purchase from SAVVIS Communications Corporation, a Delaware corporation (the "Company"), up to an aggregate of 2,499,930 shares of common stock, par value $0.01 per share, of the Company (the "Common Stock"), subject to adjustment as set forth in accordance with Section 5 and exercisable in accordance with Section 3, all on the terms and conditions and pursuant to the provisions hereinafter set forth. This Warrant is being granted pursuant to the terms of that certain Securities Purchase Agreement dated as of June 28, 2002, (the "Agreement") by and among the Company and Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P. and CVC II Partners, L.L.C. (the "Constellation Entities"), and the Company and the Constellation Entities intend to be legally bound hereby and thereby. Any capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Agreement. 2. EXERCISE PRICE. The purchase price payable for each of the shares of Common Stock sold upon exercise of this Warrant shall be $0.75 (the "Exercise Price"). Such Exercise Price and the number of shares of Common Stock into which this Warrant is exercisable are subject to adjustment from time to time as provided in Section 5. 3. EXERCISE. This Warrant may be exercised in whole or in part at any time prior to January 28, 2007 (the "Expiration Date") with respect to that number of shares of Common Stock indicated on Schedule A hereto, subject to adjustment in accordance with Section 5. In order to exercise this Warrant, in whole or in part, the Holder hereof shall deliver to the Company at its principal office at 12851 World Gate Drive, Herndon, Virginia 20170, or at such other office as shall be designated by the Company pursuant to the Agreement: (a) written notice of the Holder's election to exercise this Warrant, which notice shall be substantially in the form of the attached "Subscription Form" and shall specify the number of shares of Common Stock to be purchased pursuant to such exercise; (b) either (i) a wire transfer of immediately available funds to the Company or (ii) notice that the Exercise Price is satisfied by reduction of the number of shares to be received by the Holder upon exercise of this Warrant as provided in Section 4 below, with the amount of such reduction specified in such notice; in each case such wire transfer or reduction in the number of shares shall be in an amount equal to the aggregate purchase price for all shares of Common Stock to be purchased pursuant to such exercise; and (c) this Warrant, properly endorsed. Upon receipt thereof, the Company shall, as promptly as practicable, and in any event within ten (10) days thereafter, execute or cause to be executed and delivered to the Holder a certificate or certificates representing the aggregate number of full shares of Common Stock issuable upon such exercise. The stock certificate or certificates so delivered shall be registered in the name of the Holder or such other name as shall be designated in said notice. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a Holder of record of such shares for all purposes, as of the date of that said notice, together with said payment and this Warrant, is received by the Company as aforesaid (the "Exercise Date"). Except as otherwise provided in the Agreement or this Warrant, the Holder of this Warrant shall not, by virtue of its ownership of this Warrant, be entitled to any rights of a stockholder in the Company, either at law or in equity; provided, however, that the Holder shall, for all purposes, be deemed to have become the Holder of record of such shares on the Exercise Date. If the exercise is for less than all of the shares of Common Stock issuable as provided in this Warrant, the Company shall issue a new Warrant of like tenor and date for the balance of such shares issuable hereunder to the Holder. The Holder of this Warrant, by its acceptance hereof, consents to and agrees to be bound by and to comply with all of the provisions of this Warrant. -2- 4. "CASHLESS" EXERCISE. At the option of the Holder, the Holder may exercise this Warrant without a cash payment of the Exercise Price, by designating that the number of the shares of Common Stock issuable to the Holder upon such exercise shall be reduced by the number of shares having a Current Market Value as of the Exercise Date equal to the amount of the total Exercise Price for such exercise. In such instance, no cash or other consideration will be paid by the Holder in connection with such exercise other than the surrender of the Warrant itself, and no commission or other remuneration will be paid or given by the Holder or the Company in connection with such exercise. If such exercise results in only a partial exercise of this Warrant, then the Company shall deliver to the Holder a new Warrant evidencing the remaining rights under the Warrant, as provided in Section 3 above. "Current Market Value" means, on any date, the average of the daily closing market prices for each day for five trading days ending one business day before such date as of which such a price can be established in the manner set forth below. The closing market price for each such trading day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. If there is no active public market, the value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. 5. ADJUSTMENTS. If any of the following events shall occur at any time or from time to time prior to the exercise of the Warrant, the following adjustments shall be made in the Exercise Price and/or the number of shares then purchasable upon the exercise of the Warrant, as appropriate: (a) "Stock Splits and Combinations". In case the Company shall at any time or from time to time after the Closing Date (i) subdivide or split the outstanding shares of Common Stock, (ii) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares or (iii) issue by reclassification of the shares of Common Stock any shares of capital stock of the Company, then, and in each such case, the Exercise Price in effect immediately prior to such event or the record date therefor, whichever is applicable, shall be proportionately increased or reduced, as applicable, and the aggregate number of shares for which the Warrant shall be exercisable shall be proportionately increased or reduced, as applicable, so that the Holder of the Warrant thereafter surrendered for exercise shall be entitled to receive the number of shares of Common Stock or other securities of the Company which such Holder would have owned or have been entitled to receive after the occurrence of any of the events described above, had such Warrant been surrendered for conversion immediately prior to the occurrence of such event or the record date therefor, whichever is applicable. An adjustment made pursuant to this subparagraph (a) shall become effective at the close of business on the day upon which such corporate action becomes effective. Such adjustment shall be made successively whenever any event listed above shall occur. (b) "Dividends and Distributions in Common Stock". In case the Company shall at any time or from time to time after the Closing Date pay a dividend or make a distribution payable in shares of Common Stock on any class of Capital Stock of the Company other than -3- dividends or distributions of shares of Common Stock or other securities with respect to which adjustments are provided in paragraph (a) above, the Exercise Price shall be reduced to the price determined by multiplying (i) the applicable Exercise Price by (ii) a fraction, the numerator of which shall be the number of shares of Common Stock theretofore outstanding and the denominator of which shall be the sum of such number of shares and the total number of shares issuable in such dividend or distribution. The provisions of this clause shall similarly apply to successive distributions. (c) "Distribution of Indebtedness, Securities or Assets". In case the Company shall at any time or from time to time after the Closing Date distribute to any holders of Common Stock (whether by dividend or in a merger, amalgamation, consolidation or otherwise) evidences of indebtedness, shares of Capital Stock of any class or series, other securities, cash or assets (other than securities referred to in subparagraph (b) above or (e) below or a dividend payable exclusively in cash and other than as a result of a Fundamental Change) in respect of such holder's Common Stock, the Exercise Price in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such distribution shall be reduced by multiplying such Exercise Price by a fraction, the numerator of which is the Volume Weighted Market Value on such record date less the fair market value (as determined by the Board of Directors of the Company, whose determination in good faith shall be conclusive) of the portion of such evidences of indebtedness, shares of Capital Stock, other securities, cash and assets so distributed applicable to one share of Common Stock and the denominator of which is the Volume Weighted Market Value. Such adjustment shall be made successively whenever any such event shall occur. "Capital Stock" means as to any entity (whether a corporation, partnership or another entity), corporate stock and any and all shares, partnership interests, limited partnership interests, limited liability company interests, membership interests, equity interests, participations, rights or other equivalents (however designated) of corporate stock or any of the foregoing issued by any such entity. "Volume Weighted Market Value" means, at any date, the price per share of Common Stock which equals (i) the sum of the products, for each of the prior 20 trading days, of the Closing Market Price on such day, multiplied by the volume of shares traded on such day, (ii) divided by the total volume of shares traded the prior 20 trading days. If no Closing Market Price for shares of Common Stock can be determined, the Volume Weighted Market Value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. For purposes of this definition, "Closing Market Price" means, on any trading day, the last sale price for shares of Common Stock on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. (d) "Fundamental Changes". In case of any Fundamental Change, this Warrant shall be exercisable for the kind and amount of stock, other securities, cash and assets that it would have been exercisable for prior thereto (or anything that such stock, other securities or assets are later converted or changed into); provided, however, that in the event such Fundamental Change shall result in a successor entity to the Company, at the option of such successor entity, such Warrant shall immediately become exercisable at the time of such Fundamental Change for the -4- aggregate number of shares of Common Stock represented by this Warrant notwithstanding the provisions of Schedule A. In the event a successor entity does not elect to fully vest the Warrant as provided in the proviso of the immediately preceding sentence, such successor entity shall assume in writing all of the obligations of the Company under this Warrant (in form and substance reasonably satisfactory to the Holder). In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5 with respect to the rights of the Holder of the Warrant after the Fundamental Change to the end that the provisions of this Section 5 shall be applicable after that event in a manner as nearly equivalent as practicable as before the Fundamental Change. "Fundamental Change" means any transaction or event, including, without limitation, any merger, consolidation, sale of assets, reclassification, recapitalization, compulsory share exchange or liquidation, in which all or substantially all outstanding shares of the Company's common stock are converted into or exchanged for stock, other securities or assets. (e) "Adjustment of Exercise Price Upon Issuance of Additional Shares of Common Stock". (i) In the event the Company shall issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 5(e)(ii)), without consideration or for a consideration per share less than the Exercise Price in effect on the date of and immediately prior to such issue, then, and in each such event, the Exercise Price will be recalculated in accordance with the following formula: the Exercise Price then in effect shall be multiplied by a fraction, (x) the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance ("Outstanding Common Stock") plus the number of shares of Common Stock that the aggregate consideration (determined in the manner provided in Section 5(e)(iii)) received by the Company for such issuance would purchase at the Exercise Price in effect immediately prior to such issuance; and (y) the denominator of which shall be the number of shares of Outstanding Common Stock plus the number of Additional Shares of Common Stock. For purposes of the foregoing calculation, the term "Outstanding Common Stock" shall include, without limitation, shares of Common Stock issued or issuable upon the exercise, exchange or conversion of outstanding securities, excluding Common Stock issuable upon the exercise, exchange or conversion of options, warrants or similar rights to acquire Common Stock, at a price greater than the Volume Weighted Market Value as of the date of adjustment. "Additional Shares of Common Stock" means any shares of Common Stock issued (or deemed to have been issued pursuant to Section 5(e)(ii)) by the Company other than: (a) Common Stock issued pursuant to a transaction described in Section 5(a) or 5(b), (b) shares of Common Stock issued or issuable upon conversion of the Company's Series A Convertible Preferred Stock, (c) in addition to the shares of Common Stock described in (d) below, shares of Common Stock or options, warrants or similar rights to purchase shares of Common Stock, which shares are issuable or issued to employees, consultants or directors of the Company directly or pursuant to a stock option, restricted stock, employee stock purchase or similar plan approved by the Board of Directors of the Company, and (d) shares of Common Stock issued or issuable upon conversion of all securities convertible, exchangeable or exercisable for, or rights to purchase, shares of Common Stock validly issued and outstanding as of the Closing Date. -5- (ii) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms or by agreement with the Company convertible into or exchangeable for Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall be taken into account in making the adjustment: (A) The shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Section 5(e)(iii)), if any, received by the Company upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby. (B) The aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange (assuming the satisfaction of any condition to convertibility or exchangeability, including without limitation, the passage of time, but without taking into account potential antidilution adjustments, accrual of dividends or payment of any premiums or preferences conditioned upon the occurrence of specified transactions) for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Company (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Section 5(e)(iii)). (iii) In the case of the issuance of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and sale thereof. In the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors of the Company irrespective of any accounting treatment. (iv) Notwithstanding any other provisions of this Section 5(e), no adjustment of the Exercise Price pursuant to this Section 5(e) shall have the effect of increasing the Exercise Price above the Exercise Price in effect immediately prior to such adjustment. (f) "Number of Shares Upon Adjustment of Exercise Price". Upon each adjustment of the Exercise Price, the Holder of a Warrant shall thereafter be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of shares -6- obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares purchasable pursuant to such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. 6. TAXES. The issuance of any Common Stock or other certificate upon the exercise of this Warrant shall be made without charge to the registered Holder hereof, or for any tax in respect of the issuance of such certificate, unless such tax is imposed by law upon the Holder (including, without limitation, Federal, state or local income taxes), in which case such taxes shall be paid by the Holder. The obligations of the parties under this Section shall survive any redemption, repurchase or acquisition of this Warrant or the Common Stock issued upon exercise of this Warrant by the Company, and any cancellation or termination of this Warrant. 7. TRANSFER. Except as otherwise provided under the Agreement, this Warrant and all options and rights hereunder are transferable, as to all or any part of the number of shares of Common Stock purchasable upon its exercise, by the Holder hereof in person or by its duly authorized attorney on the books of the Company upon surrender of this Warrant at the principal offices of the Company, together with the "Assignment Form" attached hereto duly executed. The Company shall deem and treat the registered Holder of this Warrant at any time as the absolute owner hereof for all purposes and shall not be affected by any notice to the contrary. If this Warrant is transferred in part, the Company shall, at the time of surrender of this Warrant, issue to the transferee a Warrant covering the number of shares of Common Stock transferred and to the transferor a Warrant covering the number of shares not transferred. 8. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon the exercise of this Warrant and, in lieu thereof, any fractional shares shall be rounded down to the nearest whole. 9. REGISTRATION RIGHTS. The Common Stock into which this Warrant is exercisable is subject to that certain Investor Rights Agreement by and among the Company and certain other parties dated as of March 6, 2002, as such agreement may be amended from time to time. 10. RESERVATION OF SHARES. The Company shall, at all times after the Consent Effectiveness Date (as defined in the Agreement) prior to the Expiration Date, reserve and keep available such number of authorized shares of its Common Stock, solely for the purpose of effecting the exercise of this Warrant, as may from time to time be issuable upon exercise of this Warrant. If, at any time, the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the exercise of the Warrant or otherwise to comply with the terms of the Agreement, the Company shall forthwith use commercially reasonable efforts to take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. The Company shall use commercially reasonable efforts to obtain any authorization, consent, approval or other action by or make any filing with any court or administrative body that may be required under applicable state securities laws in connection with the issuance of shares of Common Stock upon exercise of the Warrant. 11. APPLICABLE LAW. THIS WARRANT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK -7- WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF. EACH OF THE PARTIES HEREBY SUBMITS TO PERSONAL JURISDICTION AND WAIVES ANY OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. SERVICE OF PROCESS ON THE PARTIES IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE EFFECTIVE IF MAILED TO THE PARTIES IN ACCORDANCE WITH SECTION 8.04 OF THE AGREEMENT. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS HEREUNDER. 12. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby shall inure to the benefit of, and be binding upon, the successors and assigns of the Holder hereof and shall be enforceable by any such Holder. In the event this Warrant is sold, transferred or assigned, the transferor will give written notice to the Company within fifteen (15) days following such sale, transfer or assignment and in such notice designate the name and address of the transferee. 13. EXCHANGE OF CERTIFICATES FOR WARRANTS. This Warrant may be exchanged, at the option of the Holder, and upon surrender of such Warrant to the Company, for another Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of shares of Common Stock. The Holder shall make such request in a writing delivered to the Company, and must surrender the Warrant to be so exchanged. Thereupon, the Company will execute and deliver to the Holder the new Warrants so requested. The Warrant surrendered for exchange will be cancelled by the Company. 14. REPLACEMENT OF INSTRUMENTS. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any certificate or instrument evidencing this Warrant, and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the Holder is an institutional lender or investor, its own agreement of indemnity shall be deemed to be satisfactory), or (b) in the case of mutilation, upon surrender or cancellation thereof, the Company, at its expense, shall execute, register and deliver, in lieu thereof, a new certificate or instrument for (or covering the purchase of) an equal number of shares of Common Stock. 15. INFORMATION RIGHTS; INSPECTION RIGHTS. Within ten (10) days of the end of every calendar month, the Company shall provide the Holder with a written report detailing the progress of the Constellation Entities towards achieving the revenue targets set forth on Schedule A. The Holder shall have the right, at any time, upon reasonable notice and during normal business hours, to audit the books and records of the Company to confirm the information set forth in the Company's monthly reports. 16. NOTICES OF CERTAIN EVENTS. (a) In the event of (i) any setting by the Company of a record date with respect to the holders of any class of securities of the Company for the purpose of determining which of such holders are entitled to dividends or other distributions, or any right to subscribe for, purchase or otherwise acquire any shares of Common Stock or any other securities or property, or to receive any other right; (ii) any capital reorganization of the Company, or reclassification or -8- recapitalization of the Common Stock of the Company or any transfer of all or substantially all of the assets of the Company to, or consolidation or merger of the Company with or into, any other entity or Person; or (iii) any involuntary dissolution, liquidation or winding-up of the Company; then, and in each such event, the Company will mail or cause to be mailed to the Holder of the Warrant at the time (as reflected in the records of the Company), a notice specifying, as the case may be: (A) the date on which any such record is to be set for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right; or (B) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is to take place and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other Capital Stock or securities receivable upon the exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other Capital Stock or securities) for securities or other property deliverable upon such event. Any such notice shall be given, as provided in Section 8.04 of the Agreement, at least fifteen (15) days prior to the date therein specified and the Holder of the Warrant may exercise its Warrant at any time within the fifteen (15) day period from the date of mailing of such notice. (b) If there shall be any adjustment as provided in Section 5, or if the securities or property other than shares of Common Stock of the Company shall become purchasable in lieu of shares of such Common Stock upon exercise of the Warrant, the Company shall forthwith cause written notice thereof to be sent, as provided in Section 8.04 of the Agreement, to the Holder of the Warrant at the address of such Person shown on the books of the Company, which notice shall be accompanied by a certificate of the chief financial officer of the Company setting forth in reasonable detail the basis for the Holder becoming entitled to purchase such shares and the number of shares that may be purchased and the Exercise Price thereof, or the facts requiring any such adjustment and the Exercise Price and the number of shares purchasable after such adjustment, or the kind and amount of any such securities or property so purchasable upon the exercise of the Warrant, or the number of shares issued to the Holder as ownership protection, as the case may be. At the request of the Holder and upon surrender of the Warrant, the Company shall reissue the Warrant in a form conforming to such adjustments. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -9- IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and issued on its behalf. DATED as of June 28, 2002. SAVVIS COMMUNICATIONS CORPORATION A DELAWARE CORPORATION By: /s/ Lane H. Blumenfeld ---------------------- Name: Lane H. Blumenfeld Title: Vice President and Acting General Counsel -10- SUBSCRIPTION FORM (To be executed only upon exercise of Warrant) The undersigned registered owner of this Warrant irrevocably exercises this Warrant for and purchases ________ shares of Common Stock of SAVVIS Communications Corporation, a Delaware corporation, purchasable with this Warrant, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant and requests that certificates for the shares of Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to __________________________________ whose address is ___________________________, and if such shares of Common Stock shall not include all of the shares of Common Stock issuable as provided in this Warrant, that a new Warrant of like tenor and date for the balance of the shares of Common Stock issuable thereunder to be delivered to the undersigned. DATED: __________________, __________________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ Address: _______________________ _______________________ _______________________ ASSIGNMENT FORM FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under this Warrant, with respect to the number of shares of Common Stock set forth below: Name and Address of Assignee No. of Shares ---------------------------- Common Stock ------------- and does hereby irrevocably constitute and appoint as Attorney__________________________ to register such transfer on the books of ________________________________ maintained for the purpose, with full power of substitution in the premises. DATED: _________________, _____. ____________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatever. ACKNOWLEDGMENT BY ASSIGNEE The undersigned Assignee hereby acknowledges receipt of the Warrant Agreement, and agrees to be bound by its terms. __________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ SCHEDULE A At all times on and after the first date that the Company and its Subsidiaries have, in the aggregate, [**] determined in accordance with GAAP of at least (i) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall equal [**] (subject to adjustment in accordance with Section 5), (ii) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5) and (iii) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5), in each case from any combination of the following: (a) [**] in which any of the [**] directly or indirectly, [**] to the Company or its Subsidiaries or otherwise [**] (b) [**] and (c) [**] (collectively, (a) through (c) are the "Covered Transactions"); provided, however, that (x) there shall be excluded from such [**] and (y) for the avoidance of doubt, there shall be included in such [**] with respect to any entity which is a part of the same organization as an entity whose [**] would be included in a Covered Transaction, such as a subsidiary, parent company, division or business unit of any such entity. "Affiliate" means, as to any Person, any other Person (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with such Person. For purposes of this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. In the event the Company and the Constellation Entities are unable to reach agreement within twenty (20) days of a transaction as to whether such transaction is a Covered Transaction, this determination shall be made in arbitration pursuant to the then-current Commercial Rules and supervision of the American Arbitration Association (the "AAA"). The arbitration shall be held in New York, New York. The Company , on the one hand, and the Constellation Entities, on the other hand, shall appoint one arbitrator within twenty (20) days of receipt by the respondent of the notice of arbitration. The two arbitrators appointed by such parties shall, within twenty (20) days after their appointment, appoint a third, presiding arbitrator. If either such party fails to nominate an arbitrator, or the two arbitrators appointed by such parties are unable to appoint a presiding arbitrator within the stated periods, the second or presiding arbitrator, as the case may be, shall be appointed by the AAA. All arbitrators shall be fluent in English and all hearings shall be conducted in the English language. The arbitrators shall, by majority vote, render a written decision stating reasons therefor. The arbitrators' decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The costs and expenses of the arbitration shall be paid by the losing party. The parties hereto will use their reasonable best efforts to cause the arbitrators hereunder to render a final and binding decision within ninety (90) days following the commencement of any such proceeding. [**] CONFIDENTIAL TREATMENT REQUESTED EX-4.9 5 ex4-9.txt EXHIBIT 4.9 EXHIBIT 4.9 CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND THE STATE ACTS. 2,094,914 Shares of Common Stock Warrant No. 5 WARRANT To Purchase Common Stock of SAVVIS Communications Corporation, a Delaware corporation 1. GRANT OF WARRANT. THIS IS TO CERTIFY THAT The BSC Employee Fund IV, L.P., a Delaware limited partnership, or its registered assigns (the "Holder"), is entitled to exercise this Warrant to purchase from SAVVIS Communications Corporation, a Delaware corporation (the "Company"), up to an aggregate of 2,094,914 shares of common stock, par value $0.01 per share, of the Company (the "Common Stock"), subject to adjustment as set forth in accordance with Section 5 and exercisable in accordance with Section 3, all on the terms and conditions and pursuant to the provisions hereinafter set forth. This Warrant is being granted pursuant to the terms of that certain Securities Purchase Agreement dated as of June 28, 2002, (the "Agreement") by and among the Company and Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P. and CVC II Partners, L.L.C. (the "Constellation Entities"), and the Company and the Constellation Entities intend to be legally bound hereby and thereby. Any capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Agreement. 2. EXERCISE PRICE. The purchase price payable for each of the shares of Common Stock sold upon exercise of this Warrant shall be $0.75 (the "Exercise Price"). Such Exercise Price and the number of shares of Common Stock into which this Warrant is exercisable are subject to adjustment from time to time as provided in Section 5. 3. EXERCISE. This Warrant may be exercised in whole or in part at any time prior to January 28, 2007 (the "Expiration Date") with respect to that number of shares of Common Stock indicated on Schedule A hereto, subject to adjustment in accordance with Section 5. In order to exercise this Warrant, in whole or in part, the Holder hereof shall deliver to the Company at its principal office at 12851 World Gate Drive, Herndon, Virginia 20170, or at such other office as shall be designated by the Company pursuant to the Agreement: (a) written notice of the Holder's election to exercise this Warrant, which notice shall be substantially in the form of the attached "Subscription Form" and shall specify the number of shares of Common Stock to be purchased pursuant to such exercise; (b) either (i) a wire transfer of immediately available funds to the Company or (ii) notice that the Exercise Price is satisfied by reduction of the number of shares to be received by the Holder upon exercise of this Warrant as provided in Section 4 below, with the amount of such reduction specified in such notice; in each case such wire transfer or reduction in the number of shares shall be in an amount equal to the aggregate purchase price for all shares of Common Stock to be purchased pursuant to such exercise; and (c) this Warrant, properly endorsed. Upon receipt thereof, the Company shall, as promptly as practicable, and in any event within ten (10) days thereafter, execute or cause to be executed and delivered to the Holder a certificate or certificates representing the aggregate number of full shares of Common Stock issuable upon such exercise. The stock certificate or certificates so delivered shall be registered in the name of the Holder or such other name as shall be designated in said notice. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a Holder of record of such shares for all purposes, as of the date of that said notice, together with said payment and this Warrant, is received by the Company as aforesaid (the "Exercise Date"). Except as otherwise provided in the Agreement or this Warrant, the Holder of this Warrant shall not, by virtue of its ownership of this Warrant, be entitled to any rights of a stockholder in the Company, either at law or in equity; provided, however, that the Holder shall, for all purposes, be deemed to have become the Holder of record of such shares on the Exercise Date. If the exercise is for less than all of the shares of Common Stock issuable as provided in this Warrant, the Company shall issue a new Warrant of like tenor and date for the balance of such shares issuable hereunder to the Holder. The Holder of this Warrant, by its acceptance hereof, consents to and agrees to be bound by and to comply with all of the provisions of this Warrant. 4. "CASHLESS" EXERCISE. At the option of the Holder, the Holder may exercise this Warrant without a cash payment of the Exercise Price, by designating that the number of the shares of -2- Common Stock issuable to the Holder upon such exercise shall be reduced by the number of shares having a Current Market Value as of the Exercise Date equal to the amount of the total Exercise Price for such exercise. In such instance, no cash or other consideration will be paid by the Holder in connection with such exercise other than the surrender of the Warrant itself, and no commission or other remuneration will be paid or given by the Holder or the Company in connection with such exercise. If such exercise results in only a partial exercise of this Warrant, then the Company shall deliver to the Holder a new Warrant evidencing the remaining rights under the Warrant, as provided in Section 3 above. "Current Market Value" means, on any date, the average of the daily closing market prices for each day for five trading days ending one business day before such date as of which such a price can be established in the manner set forth below. The closing market price for each such trading day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. If there is no active public market, the value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. 5. ADJUSTMENTS. If any of the following events shall occur at any time or from time to time prior to the exercise of the Warrant, the following adjustments shall be made in the Exercise Price and/or the number of shares then purchasable upon the exercise of the Warrant, as appropriate: (a) "Stock Splits and Combinations". In case the Company shall at any time or from time to time after the Closing Date (i) subdivide or split the outstanding shares of Common Stock, (ii) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares or (iii) issue by reclassification of the shares of Common Stock any shares of capital stock of the Company, then, and in each such case, the Exercise Price in effect immediately prior to such event or the record date therefor, whichever is applicable, shall be proportionately increased or reduced, as applicable, and the aggregate number of shares for which the Warrant shall be exercisable shall be proportionately increased or reduced, as applicable, so that the Holder of the Warrant thereafter surrendered for exercise shall be entitled to receive the number of shares of Common Stock or other securities of the Company which such Holder would have owned or have been entitled to receive after the occurrence of any of the events described above, had such Warrant been surrendered for conversion immediately prior to the occurrence of such event or the record date therefor, whichever is applicable. An adjustment made pursuant to this subparagraph (a) shall become effective at the close of business on the day upon which such corporate action becomes effective. Such adjustment shall be made successively whenever any event listed above shall occur. (b) "Dividends and Distributions in Common Stock". In case the Company shall at any time or from time to time after the Closing Date pay a dividend or make a distribution payable in shares of Common Stock on any class of Capital Stock of the Company other than dividends or distributions of shares of Common Stock or other securities with respect to which adjustments are provided in paragraph (a) above, the Exercise Price shall be reduced to the price -3- determined by multiplying (i) the applicable Exercise Price by (ii) a fraction, the numerator of which shall be the number of shares of Common Stock theretofore outstanding and the denominator of which shall be the sum of such number of shares and the total number of shares issuable in such dividend or distribution. The provisions of this clause shall similarly apply to successive distributions. (c) "Distribution of Indebtedness, Securities or Assets". In case the Company shall at any time or from time to time after the Closing Date distribute to any holders of Common Stock (whether by dividend or in a merger, amalgamation, consolidation or otherwise) evidences of indebtedness, shares of Capital Stock of any class or series, other securities, cash or assets (other than securities referred to in subparagraph (b) above or (e) below or a dividend payable exclusively in cash and other than as a result of a Fundamental Change) in respect of such holder's Common Stock, the Exercise Price in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such distribution shall be reduced by multiplying such Exercise Price by a fraction, the numerator of which is the Volume Weighted Market Value on such record date less the fair market value (as determined by the Board of Directors of the Company, whose determination in good faith shall be conclusive) of the portion of such evidences of indebtedness, shares of Capital Stock, other securities, cash and assets so distributed applicable to one share of Common Stock and the denominator of which is the Volume Weighted Market Value. Such adjustment shall be made successively whenever any such event shall occur. "Capital Stock" means as to any entity (whether a corporation, partnership or another entity), corporate stock and any and all shares, partnership interests, limited partnership interests, limited liability company interests, membership interests, equity interests, participations, rights or other equivalents (however designated) of corporate stock or any of the foregoing issued by any such entity. "Volume Weighted Market Value" means, at any date, the price per share of Common Stock which equals (i) the sum of the products, for each of the prior 20 trading days, of the Closing Market Price on such day, multiplied by the volume of shares traded on such day, (ii) divided by the total volume of shares traded the prior 20 trading days. If no Closing Market Price for shares of Common Stock can be determined, the Volume Weighted Market Value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. For purposes of this definition, "Closing Market Price" means, on any trading day, the last sale price for shares of Common Stock on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. (d) "Fundamental Changes". In case of any Fundamental Change, this Warrant shall be exercisable for the kind and amount of stock, other securities, cash and assets that it would have been exercisable for prior thereto (or anything that such stock, other securities or assets are later converted or changed into); provided, however, that in the event such Fundamental Change shall result in a successor entity to the Company, at the option of such successor entity, such Warrant shall immediately become exercisable at the time of such Fundamental Change for the aggregate number of shares of Common Stock represented by this Warrant notwithstanding the provisions of Schedule A. In the event a successor entity does not elect to fully vest the Warrant -4- as provided in the proviso of the immediately preceding sentence, such successor entity shall assume in writing all of the obligations of the Company under this Warrant (in form and substance reasonably satisfactory to the Holder). In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5 with respect to the rights of the Holder of the Warrant after the Fundamental Change to the end that the provisions of this Section 5 shall be applicable after that event in a manner as nearly equivalent as practicable as before the Fundamental Change. "Fundamental Change" means any transaction or event, including, without limitation, any merger, consolidation, sale of assets, reclassification, recapitalization, compulsory share exchange or liquidation, in which all or substantially all outstanding shares of the Company's common stock are converted into or exchanged for stock, other securities or assets. (e) "Adjustment of Exercise Price Upon Issuance of Additional Shares of Common Stock". (i) In the event the Company shall issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 5(e)(ii)), without consideration or for a consideration per share less than the Exercise Price in effect on the date of and immediately prior to such issue, then, and in each such event, the Exercise Price will be recalculated in accordance with the following formula: the Exercise Price then in effect shall be multiplied by a fraction, (x) the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance ("Outstanding Common Stock") plus the number of shares of Common Stock that the aggregate consideration (determined in the manner provided in Section 5(e)(iii)) received by the Company for such issuance would purchase at the Exercise Price in effect immediately prior to such issuance; and (y) the denominator of which shall be the number of shares of Outstanding Common Stock plus the number of Additional Shares of Common Stock. For purposes of the foregoing calculation, the term "Outstanding Common Stock" shall include, without limitation, shares of Common Stock issued or issuable upon the exercise, exchange or conversion of outstanding securities, excluding Common Stock issuable upon the exercise, exchange or conversion of options, warrants or similar rights to acquire Common Stock, at a price greater than the Volume Weighted Market Value as of the date of adjustment. "Additional Shares of Common Stock" means any shares of Common Stock issued (or deemed to have been issued pursuant to Section 5(e)(ii)) by the Company other than: (a) Common Stock issued pursuant to a transaction described in Section 5(a) or 5(b), (b) shares of Common Stock issued or issuable upon conversion of the Company's Series A Convertible Preferred Stock, (c) in addition to the shares of Common Stock described in (d) below, shares of Common Stock or options, warrants or similar rights to purchase shares of Common Stock, which shares are issuable or issued to employees, consultants or directors of the Company directly or pursuant to a stock option, restricted stock, employee stock purchase or similar plan approved by the Board of Directors of the Company, and (d) shares of Common Stock issued or issuable upon conversion of all securities convertible, exchangeable or exercisable for, or rights to purchase, shares of Common Stock validly issued and outstanding as of the Closing Date. (ii) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms or by agreement with the Company convertible into or -5- exchangeable for Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall be taken into account in making the adjustment: (A) The shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Section 5(e)(iii)), if any, received by the Company upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby. (B) The aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange (assuming the satisfaction of any condition to convertibility or exchangeability, including without limitation, the passage of time, but without taking into account potential antidilution adjustments, accrual of dividends or payment of any premiums or preferences conditioned upon the occurrence of specified transactions) for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Company (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Section 5(e)(iii)). (iii) In the case of the issuance of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and sale thereof. In the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors of the Company irrespective of any accounting treatment. (iv) Notwithstanding any other provisions of this Section 5(e), no adjustment of the Exercise Price pursuant to this Section 5(e) shall have the effect of increasing the Exercise Price above the Exercise Price in effect immediately prior to such adjustment. (f) "Number of Shares Upon Adjustment of Exercise Price". Upon each adjustment of the Exercise Price, the Holder of a Warrant shall thereafter be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of shares obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares purchasable pursuant to such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. -6- 6. TAXES. The issuance of any Common Stock or other certificate upon the exercise of this Warrant shall be made without charge to the registered Holder hereof, or for any tax in respect of the issuance of such certificate, unless such tax is imposed by law upon the Holder (including, without limitation, Federal, state or local income taxes), in which case such taxes shall be paid by the Holder. The obligations of the parties under this Section shall survive any redemption, repurchase or acquisition of this Warrant or the Common Stock issued upon exercise of this Warrant by the Company, and any cancellation or termination of this Warrant. 7. TRANSFER. Except as otherwise provided under the Agreement, this Warrant and all options and rights hereunder are transferable, as to all or any part of the number of shares of Common Stock purchasable upon its exercise, by the Holder hereof in person or by its duly authorized attorney on the books of the Company upon surrender of this Warrant at the principal offices of the Company, together with the "Assignment Form" attached hereto duly executed. The Company shall deem and treat the registered Holder of this Warrant at any time as the absolute owner hereof for all purposes and shall not be affected by any notice to the contrary. If this Warrant is transferred in part, the Company shall, at the time of surrender of this Warrant, issue to the transferee a Warrant covering the number of shares of Common Stock transferred and to the transferor a Warrant covering the number of shares not transferred. 8. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon the exercise of this Warrant and, in lieu thereof, any fractional shares shall be rounded down to the nearest whole. 9. REGISTRATION RIGHTS. The Common Stock into which this Warrant is exercisable is subject to that certain Investor Rights Agreement by and among the Company and certain other parties dated as of March 6, 2002, as such agreement may be amended from time to time. 10. RESERVATION OF SHARES. The Company shall, at all times after the Consent Effectiveness Date (as defined in the Agreement) prior to the Expiration Date, reserve and keep available such number of authorized shares of its Common Stock, solely for the purpose of effecting the exercise of this Warrant, as may from time to time be issuable upon exercise of this Warrant. If, at any time, the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the exercise of the Warrant or otherwise to comply with the terms of the Agreement, the Company shall forthwith use commercially reasonable efforts to take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. The Company shall use commercially reasonable efforts to obtain any authorization, consent, approval or other action by or make any filing with any court or administrative body that may be required under applicable state securities laws in connection with the issuance of shares of Common Stock upon exercise of the Warrant. 11. APPLICABLE LAW. THIS WARRANT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF. EACH OF THE PARTIES HEREBY SUBMITS TO PERSONAL JURISDICTION AND WAIVES ANY OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK, STATE OF -7- NEW YORK. SERVICE OF PROCESS ON THE PARTIES IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE EFFECTIVE IF MAILED TO THE PARTIES IN ACCORDANCE WITH SECTION 8.04 OF THE AGREEMENT. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS HEREUNDER. 12. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby shall inure to the benefit of, and be binding upon, the successors and assigns of the Holder hereof and shall be enforceable by any such Holder. In the event this Warrant is sold, transferred or assigned, the transferor will give written notice to the Company within fifteen (15) days following such sale, transfer or assignment and in such notice designate the name and address of the transferee. 13. EXCHANGE OF CERTIFICATES FOR WARRANTS. This Warrant may be exchanged, at the option of the Holder, and upon surrender of such Warrant to the Company, for another Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of shares of Common Stock. The Holder shall make such request in a writing delivered to the Company, and must surrender the Warrant to be so exchanged. Thereupon, the Company will execute and deliver to the Holder the new Warrants so requested. The Warrant surrendered for exchange will be cancelled by the Company. 14. REPLACEMENT OF INSTRUMENTS. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any certificate or instrument evidencing this Warrant, and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the Holder is an institutional lender or investor, its own agreement of indemnity shall be deemed to be satisfactory), or (b) in the case of mutilation, upon surrender or cancellation thereof, the Company, at its expense, shall execute, register and deliver, in lieu thereof, a new certificate or instrument for (or covering the purchase of) an equal number of shares of Common Stock. 15. INFORMATION RIGHTS; INSPECTION RIGHTS. Within ten (10) days of the end of every calendar month, the Company shall provide the Holder with a written report detailing the progress of the Constellation Entities towards achieving the revenue targets set forth on Schedule A. The Holder shall have the right, at any time, upon reasonable notice and during normal business hours, to audit the books and records of the Company to confirm the information set forth in the Company's monthly reports. 16. NOTICES OF CERTAIN EVENTS. (a) In the event of (i) any setting by the Company of a record date with respect to the holders of any class of securities of the Company for the purpose of determining which of such holders are entitled to dividends or other distributions, or any right to subscribe for, purchase or otherwise acquire any shares of Common Stock or any other securities or property, or to receive any other right; (ii) any capital reorganization of the Company, or reclassification or recapitalization of the Common Stock of the Company or any transfer of all or substantially all of the assets of the Company to, or consolidation or merger of the Company with or into, any other entity or Person; or (iii) any involuntary dissolution, liquidation or winding-up of the Company; -8- then, and in each such event, the Company will mail or cause to be mailed to the Holder of the Warrant at the time (as reflected in the records of the Company), a notice specifying, as the case may be: (A) the date on which any such record is to be set for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right; or (B) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is to take place and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other Capital Stock or securities receivable upon the exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other Capital Stock or securities) for securities or other property deliverable upon such event. Any such notice shall be given, as provided in Section 8.04 of the Agreement, at least fifteen (15) days prior to the date therein specified and the Holder of the Warrant may exercise its Warrant at any time within the fifteen (15) day period from the date of mailing of such notice. (b) If there shall be any adjustment as provided in Section 5, or if the securities or property other than shares of Common Stock of the Company shall become purchasable in lieu of shares of such Common Stock upon exercise of the Warrant, the Company shall forthwith cause written notice thereof to be sent, as provided in Section 8.04 of the Agreement, to the Holder of the Warrant at the address of such Person shown on the books of the Company, which notice shall be accompanied by a certificate of the chief financial officer of the Company setting forth in reasonable detail the basis for the Holder becoming entitled to purchase such shares and the number of shares that may be purchased and the Exercise Price thereof, or the facts requiring any such adjustment and the Exercise Price and the number of shares purchasable after such adjustment, or the kind and amount of any such securities or property so purchasable upon the exercise of the Warrant, or the number of shares issued to the Holder as ownership protection, as the case may be. At the request of the Holder and upon surrender of the Warrant, the Company shall reissue the Warrant in a form conforming to such adjustments. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -9- IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and issued on its behalf. DATED as of June 28, 2002. SAVVIS COMMUNICATIONS CORPORATION A DELAWARE CORPORATION By: /s/ Lane H. Blumenfeld ---------------------- Name: Lane H. Blumenfeld Title: Vice President and Acting General Counsel -10- SUBSCRIPTION FORM (To be executed only upon exercise of Warrant) The undersigned registered owner of this Warrant irrevocably exercises this Warrant for and purchases ________ shares of Common Stock of SAVVIS Communications Corporation, a Delaware corporation, purchasable with this Warrant, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant and requests that certificates for the shares of Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to __________________________________ whose address is ___________________________, and if such shares of Common Stock shall not include all of the shares of Common Stock issuable as provided in this Warrant, that a new Warrant of like tenor and date for the balance of the shares of Common Stock issuable thereunder to be delivered to the undersigned. DATED: _________________, _____. ____________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ Address: ________________________ ________________________ ________________________ ASSIGNMENT FORM FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under this Warrant, with respect to the number of shares of Common Stock set forth below: Name and Address of Assignee No. of Shares ---------------------------- Common Stock ------------- and does hereby irrevocably constitute and appoint as Attorney__________________________ to register such transfer on the books of ________________________________ maintained for the purpose, with full power of substitution in the premises. DATED: _________________, _____. ____________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatever. ACKNOWLEDGMENT BY ASSIGNEE The undersigned Assignee hereby acknowledges receipt of the Warrant Agreement, and agrees to be bound by its terms. __________________________________ By: ____________________________ Name: ____________________________ Title:____________________________ SCHEDULE A At all times on and after the first date that the Company and its Subsidiaries have, in the aggregate, [**] determined in accordance with GAAP of at least (i) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall equal [**] (subject to adjustment in accordance with Section 5), (ii) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5) and (iii) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5), in each case from any combination of the following: (a) [**] in which any of the [**] directly or indirectly, [**] to the Company or its Subsidiaries or otherwise [**] (b) [**]and (c) [**] (collectively, (a) through (c) are the "Covered Transactions"); provided, however, that (x) there shall be excluded from such [**]and (y) for the avoidance of doubt, there shall be included in such [**]with respect to any entity which is a part of the same organization as an entity whose [**] would be included in a Covered Transaction, such as a subsidiary, parent company, division or business unit of any such entity. "Affiliate" means, as to any Person, any other Person (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with such Person. For purposes of this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. In the event the Company and the Constellation Entities are unable to reach agreement within twenty (20) days of a transaction as to whether such transaction is a Covered Transaction, this determination shall be made in arbitration pursuant to the then-current Commercial Rules and supervision of the American Arbitration Association (the "AAA"). The arbitration shall be held in New York, New York. The Company , on the one hand, and the Constellation Entities, on the other hand, shall appoint one arbitrator within twenty (20) days of receipt by the respondent of the notice of arbitration. The two arbitrators appointed by such parties shall, within twenty (20) days after their appointment, appoint a third, presiding arbitrator. If either such party fails to nominate an arbitrator, or the two arbitrators appointed by such parties are unable to appoint a presiding arbitrator within the stated periods, the second or presiding arbitrator, as the case may be, shall be appointed by the AAA. All arbitrators shall be fluent in English and all hearings shall be conducted in the English language. The arbitrators shall, by majority vote, render a written decision stating reasons therefor. The arbitrators' decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The costs and expenses of the arbitration shall be paid by the losing party. The parties hereto will use their reasonable best efforts to cause the arbitrators hereunder to render a final and binding decision within ninety (90) days following the commencement of any such proceeding. [**] CONFIDENTIAL TREATMENT REQUESTED EX-4.10 6 ex4-10.txt EXHIBIT 4.10 EXHIBIT 4.10 CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND THE STATE ACTS. 117,315 Shares of Common Stock Warrant No. 6 WARRANT To Purchase Common Stock of SAVVIS Communications Corporation, a Delaware corporation 1. GRANT OF WARRANT. THIS IS TO CERTIFY THAT CVC II Partners, L.L.C., a Delaware limited liability corporation, or its registered assigns (the "Holder"), is entitled to exercise this Warrant to purchase from SAVVIS Communications Corporation, a Delaware corporation (the "Company"), up to an aggregate of 117,315 shares of common stock, par value $0.01 per share, of the Company (the "Common Stock"), subject to adjustment as set forth in accordance with Section 5 and exercisable in accordance with Section 3, all on the terms and conditions and pursuant to the provisions hereinafter set forth. This Warrant is being granted pursuant to the terms of that certain Securities Purchase Agreement dated as of June 28, 2002, (the "Agreement") by and among the Company and Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund IV, L.P. and CVC II Partners, L.L.C. (the "Constellation Entities"), and the Company and the Constellation Entities intend to be legally bound hereby and thereby. Any capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Agreement. 2. EXERCISE PRICE. The purchase price payable for each of the shares of Common Stock sold upon exercise of this Warrant shall be $0.75 (the "Exercise Price"). Such Exercise Price and the number of shares of Common Stock into which this Warrant is exercisable are subject to adjustment from time to time as provided in Section 5. 3. EXERCISE. This Warrant may be exercised in whole or in part at any time prior to January 28, 2007 (the "Expiration Date") with respect to that number of shares of Common Stock indicated on Schedule A hereto, subject to adjustment in accordance with Section 5. In order to exercise this Warrant, in whole or in part, the Holder hereof shall deliver to the Company at its principal office at 12851 World Gate Drive, Herndon, Virginia 20170, or at such other office as shall be designated by the Company pursuant to the Agreement: (a) written notice of the Holder's election to exercise this Warrant, which notice shall be substantially in the form of the attached "Subscription Form" and shall specify the number of shares of Common Stock to be purchased pursuant to such exercise; (b) either (i) a wire transfer of immediately available funds to the Company or (ii) notice that the Exercise Price is satisfied by reduction of the number of shares to be received by the Holder upon exercise of this Warrant as provided in Section 4 below, with the amount of such reduction specified in such notice; in each case such wire transfer or reduction in the number of shares shall be in an amount equal to the aggregate purchase price for all shares of Common Stock to be purchased pursuant to such exercise; and (c) this Warrant, properly endorsed. Upon receipt thereof, the Company shall, as promptly as practicable, and in any event within ten (10) days thereafter, execute or cause to be executed and delivered to the Holder a certificate or certificates representing the aggregate number of full shares of Common Stock issuable upon such exercise. The stock certificate or certificates so delivered shall be registered in the name of the Holder or such other name as shall be designated in said notice. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a Holder of record of such shares for all purposes, as of the date of that said notice, together with said payment and this Warrant, is received by the Company as aforesaid (the "Exercise Date"). Except as otherwise provided in the Agreement or this Warrant, the Holder of this Warrant shall not, by virtue of its ownership of this Warrant, be entitled to any rights of a stockholder in the Company, either at law or in equity; provided, however, that the Holder shall, for all purposes, be deemed to have become the Holder of record of such shares on the Exercise Date. If the exercise is for less than all of the shares of Common Stock issuable as provided in this Warrant, the Company shall issue a new Warrant of like tenor and date for the balance of such shares issuable hereunder to the Holder. The Holder of this Warrant, by its acceptance hereof, consents to and agrees to be bound by and to comply with all of the provisions of this Warrant. -2- 4. "CASHLESS" EXERCISE. At the option of the Holder, the Holder may exercise this Warrant without a cash payment of the Exercise Price, by designating that the number of the shares of Common Stock issuable to the Holder upon such exercise shall be reduced by the number of shares having a Current Market Value as of the Exercise Date equal to the amount of the total Exercise Price for such exercise. In such instance, no cash or other consideration will be paid by the Holder in connection with such exercise other than the surrender of the Warrant itself, and no commission or other remuneration will be paid or given by the Holder or the Company in connection with such exercise. If such exercise results in only a partial exercise of this Warrant, then the Company shall deliver to the Holder a new Warrant evidencing the remaining rights under the Warrant, as provided in Section 3 above. "Current Market Value" means, on any date, the average of the daily closing market prices for each day for five trading days ending one business day before such date as of which such a price can be established in the manner set forth below. The closing market price for each such trading day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. If there is no active public market, the value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. 5. ADJUSTMENTS. If any of the following events shall occur at any time or from time to time prior to the exercise of the Warrant, the following adjustments shall be made in the Exercise Price and/or the number of shares then purchasable upon the exercise of the Warrant, as appropriate: (a) "Stock Splits and Combinations". In case the Company shall at any time or from time to time after the Closing Date (i) subdivide or split the outstanding shares of Common Stock, (ii) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares or (iii) issue by reclassification of the shares of Common Stock any shares of capital stock of the Company, then, and in each such case, the Exercise Price in effect immediately prior to such event or the record date therefor, whichever is applicable, shall be proportionately increased or reduced, as applicable, and the aggregate number of shares for which the Warrant shall be exercisable shall be proportionately increased or reduced, as applicable, so that the Holder of the Warrant thereafter surrendered for exercise shall be entitled to receive the number of shares of Common Stock or other securities of the Company which such Holder would have owned or have been entitled to receive after the occurrence of any of the events described above, had such Warrant been surrendered for conversion immediately prior to the occurrence of such event or the record date therefor, whichever is applicable. An adjustment made pursuant to this subparagraph (a) shall become effective at the close of business on the day upon which such corporate action becomes effective. Such adjustment shall be made successively whenever any event listed above shall occur. (b) "Dividends and Distributions in Common Stock". In case the Company shall at any time or from time to time after the Closing Date pay a dividend or make a distribution payable in shares of Common Stock on any class of Capital Stock of the Company other than dividends or distributions of shares of Common -3- Stock or other securities with respect to which adjustments are provided in paragraph (a) above, the Exercise Price shall be reduced to the price determined by multiplying (i) the applicable Exercise Price by (ii) a fraction, the numerator of which shall be the number of shares of Common Stock theretofore outstanding and the denominator of which shall be the sum of such number of shares and the total number of shares issuable in such dividend or distribution. The provisions of this clause shall similarly apply to successive distributions. (c) "Distribution of Indebtedness, Securities or Assets". In case the Company shall at any time or from time to time after the Closing Date distribute to any holders of Common Stock (whether by dividend or in a merger, amalgamation, consolidation or otherwise) evidences of indebtedness, shares of Capital Stock of any class or series, other securities, cash or assets (other than securities referred to in subparagraph (b) above or (e) below or a dividend payable exclusively in cash and other than as a result of a Fundamental Change) in respect of such holder's Common Stock, the Exercise Price in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such distribution shall be reduced by multiplying such Exercise Price by a fraction, the numerator of which is the Volume Weighted Market Value on such record date less the fair market value (as determined by the Board of Directors of the Company, whose determination in good faith shall be conclusive) of the portion of such evidences of indebtedness, shares of Capital Stock, other securities, cash and assets so distributed applicable to one share of Common Stock and the denominator of which is the Volume Weighted Market Value. Such adjustment shall be made successively whenever any such event shall occur. "Capital Stock" means as to any entity (whether a corporation, partnership or another entity), corporate stock and any and all shares, partnership interests, limited partnership interests, limited liability company interests, membership interests, equity interests, participations, rights or other equivalents (however designated) of corporate stock or any of the foregoing issued by any such entity. "Volume Weighted Market Value" means, at any date, the price per share of Common Stock which equals (i) the sum of the products, for each of the prior 20 trading days, of the Closing Market Price on such day, multiplied by the volume of shares traded on such day, (ii) divided by the total volume of shares traded the prior 20 trading days. If no Closing Market Price for shares of Common Stock can be determined, the Volume Weighted Market Value shall be the fair market value thereof as reasonably determined in good faith by the Board of Directors of the Company. For purposes of this definition, "Closing Market Price" means, on any trading day, the last sale price for shares of Common Stock on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. (d) "Fundamental Changes". In case of any Fundamental Change, this Warrant shall be exercisable for the kind and amount of stock, other securities, cash and assets that it would have been exercisable for prior thereto (or anything that such stock, other securities or assets are later converted or changed into); provided, however, that in the event such Fundamental Change shall result in a successor entity to the Company, at the option of such successor entity, such Warrant shall immediately become exercisable at the time -4- of such Fundamental Change for the aggregate number of shares of Common Stock represented by this Warrant notwithstanding the provisions of Schedule A. In the event a successor entity does not elect to fully vest the Warrant as provided in the proviso of the immediately preceding sentence, such successor entity shall assume in writing all of the obligations of the Company under this Warrant (in form and substance reasonably satisfactory to the Holder). In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5 with respect to the rights of the Holder of the Warrant after the Fundamental Change to the end that the provisions of this Section 5 shall be applicable after that event in a manner as nearly equivalent as practicable as before the Fundamental Change. "Fundamental Change" means any transaction or event, including, without limitation, any merger, consolidation, sale of assets, reclassification, recapitalization, compulsory share exchange or liquidation, in which all or substantially all outstanding shares of the Company's common stock are converted into or exchanged for stock, other securities or assets. (e) "Adjustment of Exercise Price Upon Issuance of Additional Shares of Common Stock". (i) In the event the Company shall issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 5(e)(ii)), without consideration or for a consideration per share less than the Exercise Price in effect on the date of and immediately prior to such issue, then, and in each such event, the Exercise Price will be recalculated in accordance with the following formula: the Exercise Price then in effect shall be multiplied by a fraction, (x) the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance ("Outstanding Common Stock") plus the number of shares of Common Stock that the aggregate consideration (determined in the manner provided in Section 5(e)(iii)) received by the Company for such issuance would purchase at the Exercise Price in effect immediately prior to such issuance; and (y) the denominator of which shall be the number of shares of Outstanding Common Stock plus the number of Additional Shares of Common Stock. For purposes of the foregoing calculation, the term "Outstanding Common Stock" shall include, without limitation, shares of Common Stock issued or issuable upon the exercise, exchange or conversion of outstanding securities, excluding Common Stock issuable upon the exercise, exchange or conversion of options, warrants or similar rights to acquire Common Stock, at a price greater than the Volume Weighted Market Value as of the date of adjustment. "Additional Shares of Common Stock" means any shares of Common Stock issued (or deemed to have been issued pursuant to Section 5(e)(ii)) by the Company other than: (a) Common Stock issued pursuant to a transaction described in Section 5(a) or 5(b), (b) shares of Common Stock issued or issuable upon conversion of the Company's Series A Convertible Preferred Stock, (c) in addition to the shares of Common Stock described in (d) below, shares of Common Stock or options, warrants or similar rights to purchase shares of Common Stock, which shares are issuable or issued to employees, consultants or directors of the Company directly or pursuant to a stock option, restricted stock, employee stock purchase or similar plan approved by the Board of Directors of the Company, and (d) shares of Common Stock issued or issuable upon conversion of all securities convertible, exchangeable or exercisable for, or rights to purchase, shares of Common Stock validly issued and outstanding as of the Closing Date. -5- (ii) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms or by agreement with the Company convertible into or exchangeable for Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall be taken into account in making the adjustment: (A) The shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Section 5(e)(iii)), if any, received by the Company upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby. (B) The aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange (assuming the satisfaction of any condition to convertibility or exchangeability, including without limitation, the passage of time, but without taking into account potential antidilution adjustments, accrual of dividends or payment of any premiums or preferences conditioned upon the occurrence of specified transactions) for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Company (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Section 5(e)(iii)). (iii) In the case of the issuance of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and sale thereof. In the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors of the Company irrespective of any accounting treatment. (iv) Notwithstanding any other provisions of this Section 5(e), no adjustment of the Exercise Price pursuant to this Section 5(e) shall have the effect of increasing the Exercise Price above the Exercise Price in effect immediately prior to such adjustment. (f) "Number of Shares Upon Adjustment of Exercise Price". Upon each adjustment of the Exercise Price, the Holder of a Warrant shall thereafter be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of shares obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares purchasable -6- pursuant to such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. 6. TAXES. The issuance of any Common Stock or other certificate upon the exercise of this Warrant shall be made without charge to the registered Holder hereof, or for any tax in respect of the issuance of such certificate, unless such tax is imposed by law upon the Holder (including, without limitation, Federal, state or local income taxes), in which case such taxes shall be paid by the Holder. The obligations of the parties under this Section shall survive any redemption, repurchase or acquisition of this Warrant or the Common Stock issued upon exercise of this Warrant by the Company, and any cancellation or termination of this Warrant. 7. TRANSFER. Except as otherwise provided under the Agreement, this Warrant and all options and rights hereunder are transferable, as to all or any part of the number of shares of Common Stock purchasable upon its exercise, by the Holder hereof in person or by its duly authorized attorney on the books of the Company upon surrender of this Warrant at the principal offices of the Company, together with the "Assignment Form" attached hereto duly executed. The Company shall deem and treat the registered Holder of this Warrant at any time as the absolute owner hereof for all purposes and shall not be affected by any notice to the contrary. If this Warrant is transferred in part, the Company shall, at the time of surrender of this Warrant, issue to the transferee a Warrant covering the number of shares of Common Stock transferred and to the transferor a Warrant covering the number of shares not transferred. 8. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon the exercise of this Warrant and, in lieu thereof, any fractional shares shall be rounded down to the nearest whole. 9. REGISTRATION RIGHTS. The Common Stock into which this Warrant is exercisable is subject to that certain Investor Rights Agreement by and among the Company and certain other parties dated as of March 6, 2002, as such agreement may be amended from time to time. 10. RESERVATION OF SHARES. The Company shall, at all times after the Consent Effectiveness Date (as defined in the Agreement) prior to the Expiration Date, reserve and keep available such number of authorized shares of its Common Stock, solely for the purpose of effecting the exercise of this Warrant, as may from time to time be issuable upon exercise of this Warrant. If, at any time, the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the exercise of the Warrant or otherwise to comply with the terms of the Agreement, the Company shall forthwith use commercially reasonable efforts to take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. The Company shall use commercially reasonable efforts to obtain any authorization, consent, approval or other action by or make any filing with any court or administrative body that may be required under applicable state securities laws in connection with the issuance of shares of Common Stock upon exercise of the Warrant. 11. APPLICABLE LAW. THIS WARRANT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE -7- CONFLICT OF LAWS PROVISIONS THEREOF. EACH OF THE PARTIES HEREBY SUBMITS TO PERSONAL JURISDICTION AND WAIVES ANY OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. SERVICE OF PROCESS ON THE PARTIES IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE EFFECTIVE IF MAILED TO THE PARTIES IN ACCORDANCE WITH SECTION 8.04 OF THE AGREEMENT. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS HEREUNDER. 12. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby shall inure to the benefit of, and be binding upon, the successors and assigns of the Holder hereof and shall be enforceable by any such Holder. In the event this Warrant is sold, transferred or assigned, the transferor will give written notice to the Company within fifteen (15) days following such sale, transfer or assignment and in such notice designate the name and address of the transferee. 13. EXCHANGE OF CERTIFICATES FOR WARRANTS. This Warrant may be exchanged, at the option of the Holder, and upon surrender of such Warrant to the Company, for another Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of shares of Common Stock. The Holder shall make such request in a writing delivered to the Company, and must surrender the Warrant to be so exchanged. Thereupon, the Company will execute and deliver to the Holder the new Warrants so requested. The Warrant surrendered for exchange will be cancelled by the Company. 14. REPLACEMENT OF INSTRUMENTS. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any certificate or instrument evidencing this Warrant, and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the Holder is an institutional lender or investor, its own agreement of indemnity shall be deemed to be satisfactory), or (b) in the case of mutilation, upon surrender or cancellation thereof, the Company, at its expense, shall execute, register and deliver, in lieu thereof, a new certificate or instrument for (or covering the purchase of) an equal number of shares of Common Stock. 15. INFORMATION RIGHTS; INSPECTION RIGHTS. Within ten (10) days of the end of every calendar month, the Company shall provide the Holder with a written report detailing the progress of the Constellation Entities towards achieving the revenue targets set forth on Schedule A. The Holder shall have the right, at any time, upon reasonable notice and during normal business hours, to audit the books and records of the Company to confirm the information set forth in the Company's monthly reports. 16. NOTICES OF CERTAIN EVENTS. (a) In the event of (i) any setting by the Company of a record date with respect to the holders of any class of securities of the Company for the purpose of determining which of such holders are entitled to dividends or other distributions, or any right to subscribe for, purchase or otherwise acquire any shares of Common Stock or any other securities or property, or to receive any other right; (ii) any capital reorganization of the Company, or reclassification -8- or recapitalization of the Common Stock of the Company or any transfer of all or substantially all of the assets of the Company to, or consolidation or merger of the Company with or into, any other entity or Person; or (iii) any involuntary dissolution, liquidation or winding-up of the Company; then, and in each such event, the Company will mail or cause to be mailed to the Holder of the Warrant at the time (as reflected in the records of the Company), a notice specifying, as the case may be: (A) the date on which any such record is to be set for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right; or (B) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is to take place and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other Capital Stock or securities receivable upon the exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other Capital Stock or securities) for securities or other property deliverable upon such event. Any such notice shall be given, as provided in Section 8.04 of the Agreement, at least fifteen (15) days prior to the date therein specified and the Holder of the Warrant may exercise its Warrant at any time within the fifteen (15) day period from the date of mailing of such notice. (b) If there shall be any adjustment as provided in Section 5, or if the securities or property other than shares of Common Stock of the Company shall become purchasable in lieu of shares of such Common Stock upon exercise of the Warrant, the Company shall forthwith cause written notice thereof to be sent, as provided in Section 8.04 of the Agreement, to the Holder of the Warrant at the address of such Person shown on the books of the Company, which notice shall be accompanied by a certificate of the chief financial officer of the Company setting forth in reasonable detail the basis for the Holder becoming entitled to purchase such shares and the number of shares that may be purchased and the Exercise Price thereof, or the facts requiring any such adjustment and the Exercise Price and the number of shares purchasable after such adjustment, or the kind and amount of any such securities or property so purchasable upon the exercise of the Warrant, or the number of shares issued to the Holder as ownership protection, as the case may be. At the request of the Holder and upon surrender of the Warrant, the Company shall reissue the Warrant in a form conforming to such adjustments. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -9- IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and issued on its behalf. DATED as of June 28, 2002. SAVVIS COMMUNICATIONS CORPORATION A DELAWARE CORPORATION By: /s/ Lane H. Blumenfeld Name: Lane H. Blumenfeld Title: Vice President and Acting General Counsel -10- SUBSCRIPTION FORM (To be executed only upon exercise of Warrant) The undersigned registered owner of this Warrant irrevocably exercises this Warrant for and purchases ________ shares of Common Stock of SAVVIS Communications Corporation, a Delaware corporation, purchasable with this Warrant, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant and requests that certificates for the shares of Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to __________________________________ whose address is ___________________________, and if such shares of Common Stock shall not include all of the shares of Common Stock issuable as provided in this Warrant, that a new Warrant of like tenor and date for the balance of the shares of Common Stock issuable thereunder to be delivered to the undersigned. DATED: __________________, __________________________________________ By: -------------------------------- Name: ------------------------------ Title: ----------------------------- Address: --------------------------- --------------------------- --------------------------- ASSIGNMENT FORM FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under this Warrant, with respect to the number of shares of Common Stock set forth below: No. of Shares Name and Address of Assignee Common Stock ---------------------------- ------------- and does hereby irrevocably constitute and appoint as Attorney__________________ to register such transfer on the books of ________________________________ maintained for the purpose, with full power of substitution in the premises. DATED: _________________, _____. ____________________________________ By: -------------------------------- Name: ------------------------------ Title: ----------------------------- NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatever. ACKNOWLEDGMENT BY ASSIGNEE The undersigned Assignee hereby acknowledges receipt of the Warrant Agreement, and agrees to be bound by its terms. ------------------------------------ By: -------------------------------- Name: ------------------------------ Title: ----------------------------- SCHEDULE A At all times on and after the first date that the Company and its Subsidiaries have, in the aggregate, [**] determined in accordance with GAAP of at least (i) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall equal [**] (subject to adjustment in accordance with Section 5), (ii) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5) and (iii) [**] the number of shares of Common Stock issuable upon exercise of this Warrant shall be increased by [**] (subject to adjustment in accordance with Section 5), in each case from any combination of the following: (a) [**] in which any of the [**] directly or indirectly, [**] to the Company or its Subsidiaries or otherwise [**] (b) [**] and (c) [**] (collectively, (a) through (c) are the "Covered Transactions"); provided, however, that (x) there shall be excluded from such [**] and (y) for the avoidance of doubt, there shall be included in such [**] with respect to any entity which is a part of the same organization as an entity whose [**] would be included in a Covered Transaction, such as a subsidiary, parent company, division or business unit of any such entity. "Affiliate" means, as to any Person, any other Person (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with such Person. For purposes of this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. In the event the Company and the Constellation Entities are unable to reach agreement within twenty (20) days of a transaction as to whether such transaction is a Covered Transaction, this determination shall be made in arbitration pursuant to the then-current Commercial Rules and supervision of the American Arbitration Association (the "AAA"). The arbitration shall be held in New York, New York. The Company , on the one hand, and the Constellation Entities, on the other hand, shall appoint one arbitrator within twenty (20) days of receipt by the respondent of the notice of arbitration. The two arbitrators appointed by such parties shall, within twenty (20) days after their appointment, appoint a third, presiding arbitrator. If either such party fails to nominate an arbitrator, or the two arbitrators appointed by such parties are unable to appoint a presiding arbitrator within the stated periods, the second or presiding arbitrator, as the case may be, shall be appointed by the AAA. All arbitrators shall be fluent in English and all hearings shall be conducted in the English language. The arbitrators shall, by majority vote, render a written decision stating reasons therefor. The arbitrators' decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The costs and expenses of the arbitration shall be paid by the losing party. The parties hereto will use their reasonable best efforts to cause the arbitrators hereunder to render a final and binding decision within ninety (90) days following the commencement of any such proceeding. [**] CONFIDENTIAL TREATMENT REQUESTED EX-10.1 7 ex10-1.txt EXHIBIT 10.1 EXHIBIT 10.1 THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of June 28, 2002, is between SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation (the "COMPANY") and 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 "PURCHASERS"). WHEREAS, the Company desires to issue and sell to each Purchaser, and each Purchaser desires to purchase from the Company, shares of the Company's Series A Convertible Preferred Stock, par value $.01 per share (the "SERIES A PREFERRED STOCK") on the terms and subject to the conditions set forth herein; WHEREAS, on March 18, 2002, the Company filed a certificate of designation of the powers, preferences and relative, participating, optional and other special rights and qualifications, limitations and restrictions thereof relating to the Series A Preferred Stock (the "CERTIFICATE OF DESIGNATION"); WHEREAS, the Series A Preferred Stock is convertible into shares (the "CONVERSION SHARES") of the Company's Common Stock, $.01 par value ("COMMON STOCK"); and WHEREAS, as a further inducement to the Purchasers' purchase of shares of Series A Preferred Stock, the Company will issue to the Purchasers warrants to purchase 10,000,000 shares of Common Stock (the "WARRANT SHARES"), in the form attached hereto as Exhibit A (collectively, the "WARRANTS"); NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows: I. PURCHASE AND SALE OF SECURITIES SECTION 1.01 Authorization; Agreements to Sell and to Purchase. (a) On the Closing Date (as defined in Section 1.02) and on the terms and subject to the satisfaction of the applicable conditions set forth in this Agreement, the Company shall issue and sell to each Purchaser, and each Purchaser, severally and not jointly, shall purchase from the Company, that number of shares of Series A Preferred Stock set forth opposite the name of each such Purchaser in Annex I (the "PREFERRED SHARES") and a Warrant for a purchase price per share equal to $1,000 (the "PURCHASE PRICE") payable as provided in Section 1.01(b). (b) Payment. On the Closing Date and on the terms and subject to the satisfaction of the applicable conditions set forth in this Agreement, as payment in full for the Preferred Shares being purchased by each Purchaser on such date and against delivery by the Company of the certificate or certificates representing such Purchaser's Preferred Shares and Warrants being purchased on such date, each of the Purchasers set forth in Annex I shall pay the amount set forth opposite the name of such Purchaser in Annex I by wire transfer of immediately available funds to an account designated by the Company on the day immediately prior to the Closing Date. (c) Provisions of General Application. At the Closing (as defined in Section 1.02), (i) the Company shall issue and deliver to each Purchaser, against payment of the Purchase Price therefore, certificates evidencing the Preferred Shares being purchased by such Purchaser, registered in the name of such Purchaser, free and clear of all liens, charges or other encumbrances of any kind, and (ii) the Company shall issue and deliver to the Purchasers the Warrants registered in the name of the Purchasers, free and clear of all liens, charges or encumbrances of any kind. SECTION 1.02 Closing. The issuance and purchase contemplated by Section 1.01 (the "CLOSING") shall take place on a date (the "CLOSING DATE") to be specified by the Company and the Purchasers, which date shall be no later than the second business day after the date as of which all the conditions set forth in Sections 6.01 and 6.02 have been satisfied (or, to the extent permitted, waived by the parties entitled to the benefit thereof). The Closing shall take place at the offices of Hogan & Hartson L.L.P., 885 Third Avenue, New York, New York 10022, or at such other place as may be mutually agreed upon by the Purchasers and the Company. II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to the Purchasers on the date hereof and on the Closing Date as follows: SECTION 2.01 Organization and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own or lease and operate its properties and assets and to carry on its business as it is now being conducted and as presently proposed to be conducted. The Company is duly qualified as a foreign corporation to do business, and is in good standing, in each jurisdiction in which the character of its properties owned or leased or the nature of its activities makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the properties, assets, financial condition, operating results, business or prospects of the Company and its Subsidiaries (as defined in Section 2.02), taken as a whole (a "MATERIAL ADVERSE EFFECT"). SECTION 2.02 Subsidiaries. Except for the Subsidiaries disclosed in the Company SEC Filings (as defined in Section 2.08), the Company does not own, beneficially or of record, any capital stock or other ownership interest in any other Person. SAVVIS Communications Corporation, a Missouri corporation ("SAVVIS MISSOURI") is a corporation duly organized, validly existing and in good standing under the laws of Missouri. Global Network Assets, LLC, a Delaware limited liability company ("GLOBAL LLC"), is a limited liability company, duly formed, validly existing and in good standing under the laws of Delaware. Savvis Procurement Corporation, a Delaware corporation ("SAVVIS PROCUREMENT"), is a corporation duly organized, validly existing and in good standing under the laws of Delaware. Each of SAVVIS Missouri, Global LLC and Savvis Procurement has all requisite power and authority to own or lease and operate its properties and assets and to carry out its business as it is now being conducted. Each of SAVVIS Missouri, Global LLC and Savvis Procurement is 2 duly qualified as a foreign corporation to do business, and is in good standing, in each jurisdiction in which the character of its properties owned or leased or the nature of its activities makes such qualification necessary, except where the failure to be so qualified would not have a Material Adverse Effect. As used in this Agreement, (i) "PERSON" means any corporation, partnership, limited liability company, trust, joint venture or other entity and (ii) "SUBSIDIARY" means, with respect to any Person, any corporation, association or other business entity of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof. SAVVIS Missouri, Global LLC and Savvis Procurement are the Company's only Significant Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X). SECTION 2.03 Capitalization. (a) As of the date hereof, the authorized capital stock of the Company consists of 250,000,000 shares of Common Stock and 50,000,000 shares of Preferred Stock, $.01 par value ("PREFERRED STOCK"), of which 210,000 have been designated Series A Preferred Stock. As of the date hereof, prior to the issuance of the Preferred Shares, 94,026,666 shares of Common Stock and 158,070 shares of Preferred Stock are issued and outstanding. All outstanding shares of Common Stock and Preferred Stock have been duly authorized and validly issued and are fully paid and non-assessable and have been issued in compliance with all applicable federal and state securities laws. (b) As of the date hereof, except for options granted pursuant to the Company's stock option plan (the "STOCK OPTION PLAN") to purchase an aggregate 34,426,563 shares of Common Stock, and except as set forth on Schedule 2.03(b) of the Disclosure Letter of the Company, dated the date hereof (the "DISCLOSURE LETTER"), no subscription, warrant, option, convertible or exchangeable instrument, stock appreciation or other right (contingent or other) to purchase or acquire any shares of any class of capital stock or other equity interest of the Company or any of its Subsidiaries is authorized or outstanding, and (except as otherwise expressly contemplated by this Agreement) there is not any agreement, arrangement, understanding or commitment of the Company or any of its Subsidiaries to issue any subscription, warrant, option, convertible or exchangeable instrument, stock appreciation or other right (contingent or other) to purchase or acquire any shares of any class of capital stock or other equity interest of the Company or any of its Subsidiaries or any security of any kind convertible into or exercisable or exchangeable for any shares of capital stock or other equity interest of the Company or any Subsidiary or to distribute to holders of any class of its capital stock, any evidences of indebtedness or assets. Except as set forth on Schedule 2.03, there are no preemptive rights, rights of first refusal or other agreements, arrangements, understandings or rights with respect to the issue or sale of the Company's or any Subsidiary's capital stock or securities convertible into, exercisable or exchangeable for capital stock of the Company or any Subsidiary. Except as set forth on Schedule 2.03 and except for the side letter between the Company, certain WCAS Investors (as defined therein) and the Purchasers, dated the date hereof (the "SIDE LETTER") and the Investor Rights Agreement dated as of March 6, 2002 as amended by Amendment No. 1 dated as of June 28, 2002 (as so amended and together with the Side Letter, the "INVESTOR RIGHTS AGREEMENT"), the Company is not a party to or subject to any agreement or understanding, and, to the best knowledge of the Company, there is no agreement or understanding between or among any Persons that affects or relates to the voting, or giving of written consents or nominating directors, with respect to the Company, SAVVIS Missouri, Global LLC or Savvis Procurement. 3 (c) Upon the Closing, the authorized, issued and outstanding capital stock of the Company will be as set forth on Schedule 2.03(c) to the Disclosure Letter. SECTION 2.04 Authorization of Agreements, etc. (a) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Warrants and the Investor Rights Agreement, to consummate the transactions contemplated hereby and thereby, and to conduct its business as now conducted and as proposed to be conducted. Except as set forth on Schedule 2.04(a) of the Disclosure Letter, each of (i) the execution and delivery by the Company of this Agreement, the Warrants and the Investor Rights Agreement and the performance by the Company of its obligations hereunder and thereunder, (ii) the issuance, sale and delivery by the Company of all of the Preferred Shares to be issued and sold to the Purchasers hereunder and (iii) the issuance and delivery by the Company of the Warrants to the Purchasers will be duly and validly authorized prior to the Closing by all requisite corporate and stockholder action and will not violate any provision of applicable law, any order of any Governmental Authority (as defined in Section 2.06), the Certificate of Incorporation or Bylaws of the Company, or any provision of any indenture, agreement or other instrument to which the Company or any of its Subsidiaries or their properties or assets is bound, or conflict with, result in a breach of or constitute (with or without due notice or lapse of time or both) a default, or result in the vesting, acceleration or material modification of any benefits under any such indenture, agreement or other instrument or any compensation agreement or benefit plan, or result in the creation or imposition of any liens, claims, charges, restrictions, rights of others, security interests, prior assignments or other encumbrances in favor of any third Person upon any of the assets of the Company or any of its Subsidiaries. None of the Company, SAVVIS Missouri, Global LLC nor Savvis Procurement is in violation of or default of any provision of its articles or certificate of incorporation or by-laws (or other comparable charter documents). (b) Except as set forth on Schedule 2.04(b) of the Disclosure Letter, the issuance, sale and delivery of the Preferred Shares and the Conversion Shares to the Purchasers and the issuance and delivery of the Warrants and the Warrant Shares to the Purchasers are not and will not be subject to any preemptive rights of stockholders of the Company or to any right of first refusal or other similar right in favor of any Person. (c) The Preferred Shares, when issued in accordance with the terms of this Agreement, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable federal and securities laws and will have the powers, preferences, rights and qualifications set forth in the Certificate of Designation. On the Consent Effectiveness Date (as defined in Section 2.17 below), (i) each of the Conversion Shares into which the Preferred Shares are convertible in accordance with the Certificate of Designation shall have been duly authorized by the Company and duly reserved in contemplation of the conversion of such Preferred Shares and, when issued in accordance with the provisions of the Certificate of Designation, will be validly issued, fully paid and nonassessable shares of capital stock of the Company, issued in compliance with all applicable federal and securities laws and (ii) each Warrant Share into which the Warrants are exercisable shall have 4 been duly authorized by the Company and duly reserved in contemplation of the exercise of such Warrants and, when issued and paid for in accordance with the provisions of the Warrants, will be validly issued, fully paid and non-assessable shares of capital stock of the Company, issued in compliance with all applicable federal and securities laws. SECTION 2.05 Validity. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Warrants, when duly executed and delivered by the Company in accordance with this Agreement, will constitute legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms. The Investor Rights Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. SECTION 2.06 Governmental Approvals; Consents. Subject to the accuracy of the representations and warranties of the Purchasers set forth in Article III and except for (i) the effectiveness of the Written Consent of Stockholders, dated March 6, 2002, and the Written Consent of Stockholders, dated March 18, 2002 (the "WRITTEN CONSENT"), referred to in the Information Statement filed by the Company with the SEC on June 18, 2002 (the "INFORMATION STATEMENT"), (ii) the application for listing the Warrant Shares on the Nasdaq Stock Market, and (iii) the filing with the Secretary of State of Delaware of the amendment to the Company's certificate of incorporation to increase the authorized shares of Common Stock to 900,000,000; no registration or filing with, or consent or approval of, or other action by, any federal, state or other governmental agency, court, instrumentality or securities exchange (each, a "GOVERNMENTAL AUTHORITY") or any other third person or entity is or will be necessary for the valid execution, delivery and performance of this Agreement, the Warrants or the Investor Rights Agreement or the issuance and delivery of the shares of Preferred Shares, the Conversion Shares or the Warrant Shares. SECTION 2.07 Financial Statements. (a) The Company has furnished to the Purchasers the unaudited consolidated balance sheet of the Company and its Subsidiaries as of March 31, 2002 (the "MARCH BALANCE SHEET") and the related consolidated statements of operations, stockholders' equity and cash flows for the three months then ended. All such financial statements (including but not limited to any related schedules and/or notes) have been prepared in accordance with generally accepted accounting principles in the United States ("GAAP") consistently applied and consistent with prior periods, except for normal year-end adjustments and the absence of footnotes. All such financial statements fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of March 31, 2002, and such statements of operations, stockholders' equity and cash flows fairly present in all material respects the consolidated results of operations, stockholders' equity and cash flows of the Company and its Subsidiaries for the three months ended March 31, 2002. (b) Except as and to the extent (i) reflected on the March Balance Sheet, (ii) incurred since March 31, 2002 in the ordinary course of business consistent with past practice, (iii) set forth on Schedule 2.07(b) of the Disclosure Letter, or (iv) as disclosed in the Company SEC Filings, neither the Company nor any of its Subsidiaries has any material debts, liabilities or obligations of any kind or nature, whether known or unknown, secured or 5 unsecured, absolute, accrued, contingent or otherwise, and whether due or to become due, that would be required to be reflected on a balance sheet, or the notes thereto, prepared in accordance with GAAP. (c) Except as disclosed in the Company SEC Filings, since March 31, 2002, neither the Company nor any of its Subsidiaries has suffered any Material Adverse Effect. SECTION 2.08 SEC Filings. The Company has filed all forms, reports and documents required to be filed with the Securities and Exchange Commission (the "SEC") since the completion of the Company's initial public offering on February 18, 2000, and the Company has made available to the Purchasers, as filed with the SEC, complete and accurate copies of (i) the Annual Report of the Company on Form 10-K for the years ended December 31, 1999, 2000 and 2001, and (ii) all other reports, statements and registration statements (including but not limited to Current Reports on Form 8-K and Quarterly Reports on Form 10-Q) filed by the Company with the SEC since December 31, 2000, in each case including but not limited to all amendments and supplements (collectively, the "COMPANY SEC FILINGS"). The Company SEC Filings (i) were prepared in compliance with the requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT"), or the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations thereunder, as the case may be, and (ii) did not at the time of filing (or if amended, supplemented or superseded by a filing prior to the date hereof, on the date of that filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. SECTION 2.09 Absence of Certain Changes or Events. Except as set forth in the Company SEC Filings, and except as otherwise expressly contemplated by this Agreement, since March 31, 2002, neither the Company nor any of its Subsidiaries has (a) issued any stock, bonds or other corporate securities, (b) borrowed or refinanced any indebtedness for borrowed money, (c) discharged or satisfied any material claim or incurred or paid any obligation or liability (absolute or contingent) other than current liabilities shown on the March Balance Sheet and current liabilities incurred since the date of such balance sheet in the ordinary course of business consistent with past practice, (d) in the case of the Company only, declared or made any payment or distribution to stockholders, or purchased or redeemed any shares of its capital stock or other securities, (e) sold, exchanged or otherwise disposed of any material assets except in the ordinary course of business, (f) waived any valuable right or a material debt owed to it, (g) suffered any damage, destruction or loss, whether or not covered by insurance, which has materially and adversely affected its business, (h) made any material change or material amendment to a Material Agreement (as defined in Section 2.12), (i) suffered any Material Adverse Effect or (j) except in connection with this Agreement and the transactions contemplated hereby, entered into any agreement, letter of intent or similar undertaking to take any of the actions listed in clauses (a) through (i) above. SECTION 2.10 Actions Pending. Except as disclosed in the Company SEC Filings or as set forth on Schedule 2.10 of the Disclosure Letter, there is no action, suit, arbitration, investigation or proceeding pending or, to the best knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries or to which the Company's or any of its Subsidiaries' property is subject, before any court or by or before any 6 governmental body or arbitration board or tribunal, which the Company would be required to disclose pursuant to Item 1 of Part II of Form 10-Q if such Form 10-Q were required to be filed on and as of the date hereof. For the purposes of this Agreement, the term "best knowledge of the Company" shall mean the actual knowledge, upon reasonable inquiry, of the executive officers of the Company. SECTION 2.11 Compliance with Law; Permits. Neither the Company nor any of its Subsidiaries is in default under or in violation of, in any respect, any order or decree of any court, Governmental Authority, arbitrator or arbitration board or tribunal or under any laws, ordinances, governmental rules or regulations to which the Company or any of such Subsidiaries or any of their respective properties or assets is subject, except where such default would not have a Material Adverse Effect. The Company possesses all permits, authorizations, approvals, registrations, variances and licenses ("PERMITS") necessary for the Company or its Subsidiaries to own, use and maintain their properties and assets or required for the conduct of its business in substantially the same manner as it is currently conducted, except where the failure to possess any such Permit would not have a Material Adverse Effect. Except to the extent the failure of any of the following to be correct would not have a Material Adverse Effect, each Permit is in full force and effect, and no proceeding is pending or, to the best knowledge of the Company, threatened to modify, suspend, revoke or otherwise limit any Permit, and no administrative or governmental actions have been taken or, to the best knowledge of the Company, threatened in connection with the expiration or renewal of any Permit. SECTION 2.12 Contracts. Except as disclosed in the Company SEC Filings or as set forth on Schedule 2.12.A of the Disclosure Letter, there are no contracts or agreements that are material to the conduct of the Company's business or to the financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, that the Company would be required to disclose pursuant to paragraph 10 of Item 601 of Regulation S-K if a Form 10-Q were required to be filed on and as of the date hereof. Except as set forth in the SEC Filings or on Schedule 2.12.B of the Disclosure Letter, each of the agreements (collectively, the "MATERIAL AGREEMENTS") disclosed as an exhibit in the Company SEC Filings in response to paragraph 10 of Item 601 of Regulation S-K under which there are continuing rights or obligations is a valid and enforceable obligation of the Company and, to the best knowledge of the Company, of the other parties thereto, except where the failure to be valid or enforceable would not have a Material Adverse Effect and provided that no representation is made as to the enforceability of such agreements to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforceability of creditors' rights generally or by general equitable principles. Except as set forth on Schedule 2.12.B of the Disclosure Letter, to the best knowledge of the Company, the Company has not been notified in writing of any claim that any Material Agreement is not valid and enforceable in accordance with its terms for the periods stated therein, or that there is under any such contract any existing default or event of default or event that with notice or lapse of time or both would constitute such a default, except any such failure to be valid or enforceable and any such defaults that, in the aggregate, would not have a Material Adverse Effect. The Company is not a party to any contract or agreement that would result in an obligation of the Company to make any payments under such agreement or contract solely as a result of the execution and delivery of this Agreement or the consummation of any of the transactions contemplated 7 hereby or thereby (including, but not limited to, the issuance or delivery of the Warrants and the issuance, sale and delivery of the Preferred Shares, the Conversion Shares or the Warrant Shares). The Company has heretofore made available true and correct copies of the Material Agreements to the Purchasers. SECTION 2.13 Insurance. The Company maintains insurance with respect to its businesses, properties, officers, directors and employees customary with industry practices. The Company has heretofore made available for inspection by the Purchasers true and complete copies of all such insurance policies. Such policies are, and will be, on the Closing Date, in full force and effect and are, and will be upon the Closing, free from any right of termination or limitation (other than for non-payment) on the part of the insurance carriers. None of the Company or any of its Subsidiaries has received any notice of cancellation or termination in respect of any such policy or is in default thereunder. SECTION 2.14 Offering of the Preferred Shares. Assuming the accuracy of the representations and warranties of the Purchasers set forth in Article III hereof and the accuracy of the representations and warranties of the purchasers under the Securities Purchase Agreement with the Company dated as of March 6, 2002, neither the Company nor any Person acting on the Company's behalf has taken or will take any action (including but not limited to, any offer, issuance or sale of any securities of the Company under circumstances which might require the integration of such transactions with the sale of the Preferred Shares or the Warrants under the Securities Act or the rules and regulations of the SEC thereunder) which would require the offering, issuance or sale of the Preferred Shares or the Warrants to the Purchasers (but not including the resale thereof) pursuant to this Agreement to be registered under the Securities Act. SECTION 2.15 Related-Party Transactions. Except (i) as set forth in the Company SEC Filings or as set forth on Schedule 2.15 of the Disclosure Letter, or (ii) as contemplated hereby, there are no existing material arrangements or proposed material transactions between the Company and any Person or entity that the Company would be required to disclose pursuant to Item 404 of Regulation S-K of the SEC if a proxy statement of the Company were required to be filed on or as of the date hereof, other than arrangements or transactions between the Company and any of the Purchasers. SECTION 2.16 Brokers. All negotiations relative to this Agreement and the transactions contemplated hereby have been carried on by the Company directly with the Purchasers, without the intervention of any other Person on behalf of the Company in such manner as to give rise to any valid claim by any other Person against the Company for a finder's fee, brokerage commission or similar payment. SECTION 2.17 Consent Effectiveness Date. The Written Consent will become effective on July 12, 2002 (the "CONSENT EFFECTIVENESS DATE"), all as described in the Information Statement, without changes or modifications thereto. SECTION 2.18 Registration Rights. Except as set forth in the Investor Rights Agreement, the Company has not granted or agreed to grant any Person any registration rights (including piggyback registration rights) to have any of the presently outstanding securities of the Company or any of its securities that may subsequently be issued registered with the United States Securities and Exchange Commission. 8 SECTION 2.19 Disclosure. Neither the representations and warranties contained in this Agreement, nor any other documents or certificates made or delivered in connection herewith, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements herein, in light of the circumstances in which they were made, not misleading. III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER Each Purchaser, severally and not jointly, represents and warrants to the Company on the date hereof and on the Closing Date, as follows: SECTION 3.01 Organization. Such Purchaser is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite corporate, limited liability or limited partnership power and authority to operate its properties and assets and to carry on its business as it is now being conducted. SECTION 3.02 Authorization. The execution, delivery and performance by such Purchaser of this Agreement, and the purchase and receipt by such Purchaser of the Preferred Shares being acquired by it hereunder, have been duly authorized by all requisite action on the part of such Purchaser and will not violate any provision of applicable law, any order of any court or other agency of government, the charter or other governing documents of such Purchaser. SECTION 3.03 Validity. This Agreement has been duly executed and delivered by such Purchaser and constitutes the legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium, reorganization and similar laws relating to or affecting creditors' rights generally and general equitable principles. SECTION 3.04 Investment Representations. (a) Such Purchaser is acquiring the Preferred Shares and the Warrant for its own account, for investment, and not with a view toward the resale or distribution thereof. (b) Such Purchaser understands that it must bear the economic risk of such Purchaser's investment for an indefinite period of time, because the Preferred Shares and, when issued upon conversion of Preferred Shares, the Conversion Shares, and the Warrant and, when issued upon exercise of the Warrant, the Warrant Shares, are not registered under the Securities Act or any applicable state securities laws and may not be resold unless subsequently registered under the Securities Act and such other laws or unless an exemption from such registration is available. (c) Such Purchaser has the ability to bear the economic risks of such investment in the Preferred Shares and the Warrant being purchased hereunder for an indefinite period of time. Such Purchaser further acknowledges that it has received copies of the Company SEC Filings and has had the opportunity to ask questions of, and receive answers from, officers of the Company with respect to the business and financial condition of the Company and the terms and conditions of the offering of the Preferred Shares and to obtain additional information necessary to verify such information or can acquire it without unreasonable effort or expense. 9 (d) Such Purchaser has such knowledge and experience in financial and business matters that such Purchaser is capable of evaluating the merits and risks of its investment in the Preferred Shares and the Warrants. Such Purchaser further represents that it is an "accredited investor" as such term is defined in Rule 501 of Regulation D of the SEC under the Securities Act with respect to its purchase of the Preferred Shares and acquisition of the Warrant, and that any such Purchaser that is a limited partnership has not been formed solely for the purpose of purchasing the Preferred Shares or the Warrant. SECTION 3.05 Governmental Approvals; Consents. No registration or filing with, or consent or approval of, or other action by, any Governmental Authority is or will be necessary by the Purchaser for the valid execution, delivery and performance of this Agreement. IV. COVENANTS OF THE COMPANY SECTION 4.01 Access to Information. From the date hereof until the Closing Date, the Company will (a) furnish to the Purchasers and their authorized representatives such financial and operating data and other information relating to the Company and its Subsidiaries as such Persons may reasonably request and (b) instruct its counsel, independent accountants and financial advisors to cooperate with the Purchasers and their authorized representatives in their investigation of the Company. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company. SECTION 4.02 Compliance with Conditions; Commercially Reasonable Efforts. The Company shall use all commercially reasonable efforts to cause all conditions precedent to the obligations of the Company and the Purchasers to be satisfied. Upon the terms and subject to the conditions of this Agreement, the Company will use all commercially reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable consistent with applicable laws to consummate and make effective in the most expeditious manner practicable the issuance, sale and delivery of the Preferred Shares to the Purchasers in accordance with the terms of this Agreement. SECTION 4.03 Consents and Approvals. The Company (a) shall use all commercially reasonable efforts to obtain all necessary consents, waivers, authorizations and approvals of all Governmental Authorities, and of all other Persons required in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby; and (b) shall diligently assist and cooperate with the Purchasers in preparing and filing all documents required to be submitted by the Purchasers to any Governmental Authority in connection with the issuance, sale and delivery of the Preferred Shares to the Purchasers (which assistance and cooperation shall include timely furnishing to the Purchasers all information concerning the Company and its Subsidiaries that counsel to the Purchasers reasonably determines is required to be included in such documents or would be helpful in obtaining any such required consent, waiver, authorization or approval). SECTION 4.04 Reservation of Shares. From and after the Consent Effectiveness Date referred to in Section 2.17 and so long as any of the Preferred Shares or the Warrants are outstanding, the Company shall keep reserved for issuance a sufficient number of shares of Common Stock to satisfy its conversion obligations under the Certificate of Designation and its exercise 10 obligations under the Warrants. The Company shall cause to be filed, within 15 days of the Consent Effectiveness Date, an amendment to its certificate of incorporation increasing the authorized number of shares of Common Stock to 900,000,000. SECTION 4.05 Listing of Shares. The Company shall cause the Conversion Shares issuable upon conversion of the Preferred Shares and the Warrant Shares to be issued upon exercise of the Warrants to be listed or otherwise eligible for trading on the NASDAQ Small Cap Market System or such other exchange or market at which the Common Stock is traded at the time of conversion or exercise. SECTION 4.06 Financial Statements and Reports. So long as the Company is no longer subject to the reporting requirements of the Securities and Exchange Act of 1934, as amended, and the Purchasers hold in the aggregate Conversion Shares or Preferred Shares (or any securities into which such shares have been converted into or exchanged for in a recapitalization or otherwise) or convertible into Conversion Shares equal to at least 25% of the number of Conversion Shares the Preferred Shares are convertible into on the Closing Date, the Company shall comply with the provisions of Section 4.06(a) and (e) and shall provide copies of the statements referred to in Sections 4.06(b), (c) and (d) to each Purchaser: (a) Books and Records. The Company shall at all times maintain correct and complete books and records in which full and correct entries shall be made of all its business transactions pursuant to a system of accounting established and administered in accordance with GAAP to the extent applicable and set aside on its books all such proper accruals and reserves as shall be required under GAAP. The Company shall retain an accounting firm of nationally recognized standing for the purpose of auditing its financial statements and reports for each fiscal year. (b) Monthly Statements. As soon as available, and in any event within ten (10) days after the end of each month, copies of the balance sheets of the Company as of the end of such month, and related statements of income and cash flows of the Company for such month, in each case setting forth in comparative form the figures for the corresponding month of the preceding fiscal year, all in reasonable detail, and certified by the chief financial officer of the Company, as being true and correct in all material respects and, except for the lack of notes, as having been prepared in accordance with GAAP, subject to year-end audit adjustments. (c) Quarterly Statements. As soon as available, and in any event within forty-five (45) days after the end of each respective quarterly fiscal period (except the last) of each fiscal year of the Company, copies of the balance sheets of the Company as of the end of such quarterly fiscal period, and the related statements of income and cash flows of the Company for such quarterly fiscal period and for the portion of the fiscal year ending with such period, in each case setting forth in comparative form the figures for the corresponding period of the preceding fiscal year, all in reasonable detail, and certified by the chief financial officer of the Company, as being true and correct in all material respects and, except for the lack of notes, as having been prepared in accordance with GAAP, subject to year-end audit adjustments. (d) Annual Statements. As soon as available and in any event within one hundred twenty (120) days after the close of each respective fiscal year of the Company, copies of the balance sheets of the Company as of the close 11 of such fiscal year and the related statements of income and cash flows of the Company for such fiscal year, in each case, setting forth in comparative form the figures for the preceding fiscal year, all in reasonable detail and accompanied by (i) an opinion thereon of independent public accountants of the Company to the effect that such financial statements have been prepared in accordance with GAAP and fairly present the financial conditions and results of operations of the Company and (ii) such accountant's management letter. (e) Additional Information. The Company shall send to each Purchaser, (i) all written materials and other information given to the directors of the Company at the same time such materials are given to the directors and (ii) promptly upon becoming available, copies of all financial statements, reports, notices, press releases, proxy statements and other documents sent by the Company to its stockholders. V. COVENANTS OF THE PURCHASERS SECTION 5.01 Agreement to Take Necessary and Desirable Actions. Each Purchaser shall (a) subject to the satisfaction of the conditions set forth in Section 6.01, execute and deliver such other documents, certificates, agreements and other writings and (b) take such other actions, in each case, as may be reasonably necessary, desirable or requested by the Company in order to consummate or implement the issuance, sale and delivery of the Preferred Shares to the Purchasers in accordance with the terms of this Agreement. SECTION 5.02 Compliance with Conditions; Commercially Reasonable Efforts. Each Purchaser will use all commercially reasonable efforts to cause all of the obligations imposed upon it in this Agreement to be duly complied with, and to cause all conditions precedent to the obligations of the Company and the Purchasers to be satisfied. Upon the terms and subject to the conditions of this Agreement, each Purchaser will use all commercially reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable consistent with applicable law, to consummate and make effective in the most expeditious manner practicable the issuance, sale and delivery of the Preferred Shares to such Purchaser in accordance with the terms of this Agreement. SECTION 5.03 Consents and Approvals. Each Purchaser (a) shall use all commercially reasonable efforts to obtain all necessary consents, waivers, authorizations and approvals of all Governmental Authorities, and of all other Persons required in connection with the execution, delivery and performance of this Agreement, or the consummation of transactions contemplated hereby and (b) shall diligently assist and cooperate with the Company in preparing and filing all documents required to be submitted by the Company to any Governmental Authority in connection with such transactions (which assistance and cooperation shall include, without limitation, timely furnishing to the Company all information concerning such Purchaser that counsel to the Company reasonably determines is required to be included in such documents or would be helpful in obtaining any such required consent, waiver, authorization or approval). 12 VI. CONDITIONS PRECEDENT SECTION 6.01 Conditions Precedent to the Obligations of the Purchasers in connection with the Closing. With regard to the Closing, the obligations of the Purchasers hereunder are, at their option, subject to the satisfaction of the following conditions: (a) Representations and Warranties to Be True and Correct. The representations and warranties of the Company contained in this Agreement that are qualified as to materiality or Material Adverse Effect shall be true and correct and all other representations and warranties of the Company shall be true and correct in all material respects, each on the Closing Date with the same force and effect as though such representations and warranties had been made on and as of such date. (b) Performance. The Company shall have performed and complied in all material respects with all agreements, covenants and conditions contained herein required to be performed or complied with by it prior to or on the Closing Date. (c) All Proceedings to Be Satisfactory. All corporate and other proceedings to be taken by the Company and all waivers and consents to be obtained by the Company in connection with the transactions contemplated hereby shall have been taken or obtained by the Company. (d) Legal Proceedings. On the Closing Date, no preliminary or permanent injunction or other order, decree or ruling issued by any court of competent jurisdiction nor any statute, rule, regulation or order entered, promulgated or enacted by any governmental, regulatory or administrative agency or authority, or national securities exchange shall be in effect that would prevent the consummation of the transactions contemplated by this Agreement. (e) Governmental Approvals. All necessary governmental and regulatory consents and approvals and necessary third party consents shall have been obtained. (f) No Material Adverse Effect. Except for the effects of the matters disclosed in the Company SEC Filings, there shall have been no Material Adverse Effect since March 29, 2002, the date on which the Company filed its Form 10-K for the year ended December 31, 2001. (g) Opinions of Counsel. The Purchasers shall have received from Hogan & Hartson, L.L.P. and the chief legal officer of the Company two opinions, each dated the Closing Date, substantially in the forms delivered to purchasers of Preferred Stock on March 18, 2002. (h) GECC Waiver. The Purchasers shall have received a copy of a waiver from General Electric Capital Corporation consenting to the issuance of the Preferred Stock and the Warrants to the Constellation Entities. (i) Board Side Letter. The Purchasers shall have received an executed copy the Side Letter dated the date hereof among the Company, the Constellation Entities and certain WCAS Investors (as defined in the Investor Rights Agreement). 13 SECTION 6.02 Conditions Precedent to the Obligations of the Company in Connection with the Closing. With regard to the Closing, the obligations of the Company hereunder are, at its option, subject to the satisfaction of the following conditions: (a) Representations and Warranties to Be True and Correct. The representations and warranties of the Purchasers contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same effect as though such representations and warranties had been made on and as of such date. (b) Performance. The Purchasers shall have performed and complied in all material respects with all agreements, covenants and conditions contained herein required to be performed or complied with by them prior to or on the Closing Date. (c) All Proceedings to Be Satisfactory. All proceedings to be taken by the Purchasers and all waivers and consents to be obtained by the Purchasers in connection with the transactions contemplated hereby shall have been taken or obtained by the Purchasers. (d) Legal Proceedings. On the Closing Date, no preliminary or permanent injunction or other order, decree or ruling issued by any court of competent jurisdiction nor any statute, rule, regulation or order entered, promulgated or enacted by any Governmental Authority shall be in effect that would prevent the consummation of the transactions contemplated by this Agreement. (e) Governmental Approvals. All necessary governmental approvals and regulatory approvals and necessary third party consents shall have been obtained. VII. SURVIVAL OF REPRESENTATIONS; INDEMNITY SECTION 7.01 Survival of Representations. Subject as set forth below, all representations and warranties made by any party hereto in this Agreement or pursuant hereto shall survive for the period commencing on the date hereof and ending on the second anniversary of the date hereof. SECTION 7.02 General Indemnity. (a) Subject to the terms and conditions of this Article, the Company hereby agrees to indemnify, defend and hold the Purchasers harmless from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys' fees and expenses (collectively, "DAMAGES"), asserted against, resulting to, imposed upon or incurred by the Purchasers by reason of or resulting from a breach of any representation, warranty or covenant of the Company contained in or made pursuant to this Agreement. (b) Subject to the terms and conditions of this Article VII, each Purchaser hereby agrees, severally and not jointly, to indemnify, defend and hold the Company harmless from and against all Damages asserted against, resulting to, imposed upon or incurred by the Company by reason of or resulting from a breach of any representation, warranty or covenant of the Purchaser contained in Section 3 and Section 5 this Agreement. 14 SECTION 7.03 Conditions of Indemnification. The respective several obligations and liabilities of the Purchasers, on the one hand, and the Company, on the other hand (the "INDEMNIFYING PARTY"), to the other (the "PARTY TO BE INDEMNIFIED") under Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions: (a) within 20 days after receipt of notice of commencement of any action or the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing; (b) in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such claim at any time prior to settlement, compromise or final determination thereof, provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise; (c) anything in this Section 7.03 to the contrary notwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the party to be indemnified a release from all liability in respect of such claim; and (d) in connection with any such indemnification, the indemnified party will cooperate in all reasonable requests of the indemnifying party. VIII. MISCELLANEOUS SECTION 8.01 Restrictions on Transfer; Legends. (a) The Purchasers agree that they will not sell, transfer, assign, pledge, encumber, distribute or otherwise dispose of the Warrants or any Warrant Shares (a "TRANSFER") 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). (b) The Company agrees, and the Purchasers understand and consent, that the Company will not cause or permit the Transfer of the Warrants or any Warrant Shares 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 15 in accordance with, (x) the terms of this Agreement and (y) all applicable federal and state securities laws. The Purchasers agree that in connection with any Transfer of the Warrants or any Warrant Shares that is not made pursuant to a registered public offering, the Company may request an opinion of legal counsel reasonably acceptable to the Company stating that such transaction is exempt from registration under all applicable laws. Any Transfer of the Warrants or any Warrant Shares other than in accordance with this Section will be void. (c) 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 the Company an opinion of legal counsel reasonably acceptable to the Company to such effect), all certificates representing the Warrants and each certificate representing the Warrant Shares and any shares of capital stock received in respect thereof, whether by reason of a stock split or share reclassification thereof, a stock dividend thereon or otherwise, and each certificate for any such securities issued to subsequent transferees of any such certificate that are held by the Purchasers shall bear legends 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 8.02 Expenses, etc.. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense; provided, that, upon execution of this Agreement, the Company shall pay the reasonable and actual legal, due diligence and other reasonable out of pocket costs and expenses of the Purchasers. SECTION 8.03 Survival of Agreements. All covenants, agreements and representations and warranties (except in the case of representations and warranties, as limited in Section 7.01) made herein shall survive the execution and delivery of this Agreement and the issuance, sale and delivery of the Preferred Shares, notwithstanding any investigation made at any time by or on behalf of any party hereto. All statements contained in any certificate or other instrument delivered by the Company hereunder shall be deemed to constitute representations and warranties made by the Company. SECTION 8.04 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 first class certified mail, postage prepaid, by nationally recognized overnight courier, or by facsimile addressed to such party at the address or facsimile number set forth below or such other address or facsimile number as may hereafter be designated in writing by the addressee to the addressor listing all parties: 16 if to the Company, to SAVVIS Communications Corporation 12851 World Gate Drive Herndon, Virginia 20170 Fax: (703) 234-8315 Attention: General Counsel with a copy to Hogan & Hartson L.L.P. 885 Third Avenue, 26th Floor New York, New York 10022 Fax: (212) 918-6100 Attention: Christine M. Pallares, Esq. if to the Purchaser to: Constellation Venture Capital II, L.P. 383 Madison Avenue 28th Floor New York, New York 10179 Fax: (212) 272-9256 Attention: Ronald Celmer with a copy to: Morgan, Lewis & Bockius LLP 101 Park Avenue New, York, New York 10178 Fax: (212) 309-6273 Attention: Ira White, Esq. or, in any case, at such other address or addresses 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 (a) in the case of personal delivery, on the date of such delivery, (b) in the case of mailing, on the fifth business day following the date of such mailing, (c) in the case of delivery by overnight courier, on the business day following the date of delivery to such courier, and (d) in the case of facsimile, when received. SECTION 8.05 Press Releases and Public Announcements. All public announcements or disclosures relating to this Agreement shall be made only if mutually agreed upon by the Company and the Purchasers except to the extent such disclosure is, in the reasonable good faith opinion of the Company or the Purchasers, required by law or by regulation of any applicable national stock exchange or any SEC recognized trading market or equivalent foreign exchange or trading market; provided that any such required disclosure shall 17 only be made, to the extent consistent with law and regulation of any applicable national stock exchange or SEC recognized trading market or equivalent foreign exchange or trading market, after consultation with and agreement by the Purchasers or the Company as applicable. SECTION 8.06 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles. SECTION 8.07 Entire Agreement. This Agreement (including the Schedules and Exhibits thereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and may not be amended or modified nor any provisions waived except as set forth in Section 8.10. SECTION 8.08 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by the Company without the prior written consent of the Purchasers, and may not be assigned or delegated by the Purchasers without the Company's prior written consent. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and their respective successors and permitted assigns. This Agreement is not intended to confer any rights or benefits on any Persons other than the parties hereto, except as expressly set forth in Section 7.02 or as contemplated by this Section 8.08. Any designee or assignee permitted under this Section 8.08 is referred to herein as a "PERMITTED DESIGNEE." SECTION 8.09 Termination. (a) This Agreement may be terminated at any time prior to the Closing: (i) by mutual written agreement of the Company and the Purchasers; (ii) by either the Company or the Purchasers if the Closing shall not have been consummated on or before August 31, 2002, unless extended by mutual agreement or unless the failure to consummate the Closing is attributable to a failure on the part of the party seeking to terminate this Agreement to perform any obligation required to be performed by such party at or prior to the Closing Date; or (iii) by either the Company or the Purchasers if consummation of the transactions contemplated hereby to be consummated on the Closing Date would violate any nonappealable final order, decree or judgment of any court or Governmental Authority having competent jurisdiction. (b) The party desiring to terminate this Agreement pursuant to Section 8.09(a)(ii) or (iii) hereof shall promptly give notice of such termination to the other party. (c) If this Agreement is terminated as permitted by this Section 8.09, such termination shall be without liability of either party (or any stockholder, director, officer, employee, agent, consultant or representative of such party) to the other parties to this Agreement; provided that if such termination shall result from the willful (i) failure of either party to fulfill a condition to the performance of the obligations of the other party, (ii) failure of either party to perform a covenant of such party in this Agreement or (iii) breach by either party hereto of any representation or 18 warranty or agreement contained herein, such party shall be fully liable for any and all losses incurred or suffered by the other party as a result of such failure or breach. The provisions of Sections 8.02, 8.03, 8.04, 8.05, 8.06, and 8.10 shall survive any termination hereof pursuant to this Section 8.09. SECTION 8.10 Amendments and Waivers. (a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, by the Company and the Purchasers. (b) No failure or delay by any party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege, nor will any waiving of any right power or privilege operate to waive any other subsequent right, power or privilege. The rights and remedies herein provided will be cumulative and not exclusive of any rights or remedies provided by law. SECTION 8.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 8.12 Parties in Interest. All covenants and agreements contained in this Agreement by or on behalf of any party hereto shall bind and inure to the benefit of the respective successors and Permitted Designees of such party hereto whether so expressed or not. 19 IN WITNESS WHEREOF, the Company and the Purchaser have executed this Agreement as of the day and year first above written. SAVVIS COMMUNICATIONS CORPORATION By: /s/ Lane H. Blumenfeld Name: Lane H. Blumenfeld Title: Vice President and Acting General Counsel CONSTELLATION VENTURE CAPITAL II, L.P. By: Constellation Ventures Management, L.L.C., its General Partner By: The Bear Stearns Companies, Inc., its Managing Member By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD CONSTELLATION VENTURE CAPITAL OFFSHORE II, L.P. By: Constellation Ventures Management, L.L.C., its General Partner By: The Bear Stearns Companies, Inc., its Managing Member By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD 20 THE BSC EMPLOYEE FUND IV, L.P. By: Constellation Ventures Management, L.L.C., its General Partner By: The BSCGP, Inc., its Managing Member By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD CVC II PARTNERS, L.L.C. By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD 21 ANNEX I
PURCHASERS PREFERRED SHARES PURCHASE PRICE - ----------------------------------------------- ---------------- -------------- Constellation Venture Capital II, L.P. 10,576 $ 10,576,000 Constellation Venture Capital Offshore II, L.P. 5,000 5,000,000 The BSC Employee Fund IV, L.P. 4,190 4,190,000 CVC II Partners, L.L.C. 234 234,000 ------------ Total $ 20,000,000
EX-10.2 8 ex10-2.txt EXHIBIT 10.2 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, ANDERSON & STOWE 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 2 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: 3 "(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. 4 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 H. Blumenfeld Name: Lane H. Blumenfeld Title: Vice President and Acting General Counsel WELSH, CARSON, ANDERSON & STOWE VIII, L.P. By WCAS VIII Associates LLC, General Partner By: /s/ John Rather Name: John Rather Title: Managing Member REUTERS HOLDINGS SWITZERLAND SA By: /s/ Eric Lint Name: Eric Lint Title: Attorney-In-Fact 5 EX-10.3 9 ex10-3.txt EXHIBIT 10.3 EXHIBIT 10.3 JOINDER AGREEMENT This JOINDER AGREEMENT, dated as of June 28, 2002, between SAVVIS Communications Corporation, a Delaware corporation (the "COMPANY") and Constellation Venture Capital II, L.P., a Delaware limited partnership, Constellation Venture Capital Offshore II, L.P., a Cayman Islands Limited, The BSC Employee Fund IV, L.P., a Delaware limited parntership, and CVC Partners, L.L.C., a Delaware limited liability company (each a "JOINING PARTY" and, collectively, the "JOINING PARTIES"). WHEREAS, the Company and certain other entities are parties to an Investor Rights Agreement dated as of March 6, 2002 (the "INVESTOR RIGHTS AGREEMENT"); WHEREAS, Section 10 of the Investor Rights Agreement provides that upon the express written consent of WCAS and the Company, any other holder of Preferred Stock may become a party to the Investor Rights Agreement and become an "OTHER INVESTOR" thereunder to the extent such other holder agrees in writing to become a party to the Investor Rights Agreement and to assume the rights and obligations of an Other Investor thereunder; and WHEREAS, each of the Joining Parties wishes to join and become a party to the Investor Rights Agreement, and the Company and WCAS have consented to the Joining Parties becoming a party thereto; NOW, THEREFORE, in consideration of the foregoing, the parties hereto hereby agree as follows: 1. Definitions. ----------- Capitalized terms used and not otherwise defined in this Agreement have the meanings attributed to such terms in the Investor Rights Agreement. 2. Joinder; Purchase of Other Preferred Stock. ------------------------------------------ Each of the Joining Parties hereby becomes a party to and assumes the rights and obligations of an Other Investor under the Investor Rights Agreement. The Company and the Joining Parties each acknowledge that the term "Other Investor," as defined in the Investor Rights Agreement, includes the Joining Parties and that the rights and obligations of the Joining Parties as an Other Investor are set forth in the Investor Rights Agreement. 3. Acknowledgment. -------------- Each of the Joining Parties acknowledges that it has received a copy of the Investor Rights Agreement. 4. Notice. ------ For purposes of Section 12(g) of the Investor Rights Agreement, the Joining Parties' addresses and facsimile numbers are: Address: Constellation Venture Capital II, L.P. 383 Madison Avenue 28th Floor New York, New York 10179 Facsimile: (212) 272-9256 Attention: Ronald Celmer with a copy to: Morgan, Lewis & Bockius LLP 101 Park Avenue New, York, New York 10178 Fax: (212) 309-6273 Attention: Ira White, Esq. 5. Governing Law. ------------- This Agreement shall be governed in all respects by the laws of the State of New York, without reference to the conflict of laws principles thereof. 6. Counterparts. ------------ This Agreement may be executed in any number of counterparts, can each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. * * * * * 2 IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above stated. SAVVIS COMMUNICATIONS CORPORATION By: /s/ Lane H. Blumenfeld Name: Lane H. Blumenfeld Title: Vice President and Acting General Counsel CONSTELLATION VENTURE CAPITAL II, L.P. By: Constellation Ventures Management, L.L.C., its General Partner By: The Bear Stearns Companies, Inc., its Managing Member By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD CONSTELLATION VENTURE CAPITAL OFFSHORE II, L.P. By: Constellation Ventures Management, L.L.C., its General Partner By: The Bear Stearns Companies, Inc., its Managing Member By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD 3 THE BSC EMPLOYEE FUND IV, L.P. By: Constellation Ventures Management, L.L.C., its General Partner By: The BSCGP, Inc., its Managing Member By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD CVC II PARTNERS, L.L.C. By: /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD 4 EX-10.4 10 ex10-4.txt EXHIBIT 10.4 EXHIBIT 10.4 June 28, 2002 Constellation Venture Capital II, L.P. Constellation Venture Capital Offshore II, L.P. The BSC Employee Fund IV, L.P. CVC II Partners, L.L.C. 383 Madison Avenue 28th Floor New York, New York 10179 Reference is made to the Investor Rights Agreement dated as of March 6, 2002, as amended by Amendment No. 1 dated as of June 28, 2002 among Savvis, Reuters and WCAS, as such agreement may be further amended, modified or restated from time to time (the "Agreement"). Capitalized terms used and not defined herein have the meanings given to them in the Agreement. In order to induce the Constellation Entities to purchase certain securities of Savvis on the date hereof, (i) if so requested by the Constellation Entities, each of the WCAS Investors set forth below agrees with the Constellation Entities to timely vote or cause to be voted (including by way of execution of written consent if so requested by the Constellation Entities) all of the shares of Savvis Stock of which they have an interest in favor of the Constellation Entities' nominee to the Company's board of directors so long as the Constellation Entities are entitled to nominate a director to the Company's board of directors pursuant to Section 6 of the Investor Rights Agreement and not to remove any such nominee except at the direction of the Constellation Entities and (ii) the Company agrees (x) at its next regularly scheduled meeting of its board of directors, but in no event later than July 24, 2002, to cause its board of directors to be increased to ten members and to fill such then created vacancy with such person nominated by the Constellation Entities and (y) to cause any nominee designated by the Constellation Entities in accordance with Section 6(a) of the Agreement to be submitted to the Company's stockholders for election at any time that any persons are submitted to the Company's stockholders for election to the Company's board of directors. The Constellation Entities agree that any nominee designated by them will be a managing director or senior investment professional of Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore II, L.P. or CVC II Partners, L.L.C. Sincerely, Savvis Communications Corporation By /s/ Lane. H. Blumenfeld Name: Lane. H. Blumenfeld Title: Vice President and Acting General Counsel Welsh, Carson, Anderson & Stowe VIII, L.P. By /s/ Jonathan Rather Name: Jonathan Rather Title: Managing Member Welsh, Carson, Anderson & Stowe VII, L.P. By /s/ Jonathan Rather Name: Jonathan Rather Title: General Partner Welsh, Carson, Anderson & Stowe VI, L.P. By /s/ Jonathan Rather Name: Jonathan Rather Title: Attorney-In-Fact WCAS Management Corporation By /s/ Jonathan Rather Name: Jonathan Rather Title: Treasurer Constellation Venture Capital II, L.P. By /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD Constellation Venture Capital Offshore II, L.P. By /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD CVC II Partners, L.L.C. By /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD The BSC Employee Fund IV, L.P. By /s/ Clifford H. Friedman Name: Clifford H. Friedman Title: SMD EX-99.1 11 ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 SAVVIS SECURES $20 MILLION EQUITY FUNDING, BRINGING NEW INVESTMENT TOTAL TO $178 MILLION CONSTELLATION VENTURES, A BEAR STEARNS ASSET MANAGEMENT FUND, INVESTS IN SAVVIS' APPROACH TO MANAGED IP SERVICES HERNDON, VA, AND ST. LOUIS, MO, -- JUNE 30, 2002 -- Global managed services provider SAVVIS Communications Corp. (NASDAQ: SVVS) today announced that is has secured a $20 million investment from Constellation Ventures, a Bear Stearns Asset Management Fund, in return for preferred stock. Constellation Ventures is a media, communications and technology venture capital fund that manages $450 million. This relationship will facilitate SAVVIS' expansion beyond its stronghold in financial services and mid-market enterprises into growing media-intensive industries. "SAVVIS represents a new breed of managed IP services provider," said Clifford H. Friedman, Senior Managing Director of Constellation Ventures. "At a time when the telecommunications industry is struggling with excessive debt and a glut of commodity-based products, SAVVIS' value-added services are growing and their balance sheet is strong. SAVVIS is delivering the highest availability and quality of service for bandwidth-intensive, mission critical applications - key attributes that are in growing demand by media-focused industries such as advertising, broadcasting, production, cable and publishing." In March of this year, SAVVIS secured $158 million from investors including Welsh, Carson, Anderson & Stowe. Combined with the new investment from Constellation Ventures, SAVVIS has raised $178 million in funding this year. "These investments serve as additional validation of the SAVVIS business model and our ability to win new customers and drive new revenues in IP VPNs and managed hosting," said Rob McCormick, SAVVIS' chairman and chief executive officer. Under terms of the agreement, SAVVIS will issue to Constellation Ventures $20 million of 11.5 percent convertible preferred stock in exchange for cash. The preferred stock will be convertible initially into approximately 26.7 million shares of SAVVIS common stock at a conversion price of $0.75 per share and will have voting rights that allow the holders to vote with the common on an as-if-converted basis. Dividends will be paid quarterly in the form of additional convertible preferred stock. Constellation Ventures will hold approximately 8% percent of SAVVIS' voting stock and Mr. Friedman will join the SAVVIS board of directors. The March funding agreements authorized the company to raise up to an additional $45 million of preferred stock at substantially the same terms and conversion price. In addition, SAVVIS has also agreed to issue five-year warrants to Constellation Ventures to acquire 10 million shares of common stock at $0.75 per share. Constellation Ventures will earn the right to exercise the warrants as it aids SAVVIS in winning new business. "Clearly, there is an increasing migration to IP networking that we believe will reshape the telecommunications sector over the next five years," McCormick said. "We look forward to working with Constellation Ventures as we begin to forge our presence in the media and communications industry." "SAVVIS' growing sales and strong operating performance are what have attracted investor interest," McCormick continued. "Bucking the trend in our industry, we have a robust balance sheet, and only a modest amount of remaining debt, and with over $35 million in cash, we have the funds to accelerate sales of our IP VPN, managed hosting and Internet services." SAVVIS built its global data communications network to meet the demanding standards of Wall Street. Major players in the financial services industry, including banks, brokerage firms and electronic trading networks, have long relied on SAVVIS' IP VPNs. Building on this expertise, the company packaged its Intelligent IP NetworkingSM products for mid-sized enterprises, such as law firms, ad agencies, and real estate companies, two years ago. With growth fueled by these two markets, SAVVIS' Intelligent IP NetworkingSM products now account for 80% of the company's revenue, making SAVVIS one of the world's largest providers of IP VPNs. "The SAVVIS network was built to power Wall Street, and the distinctive benefits of our products are increasingly in demand by businesses on Main Street," said McCormick. "By concentrating on what we do best, providing high quality managed networking solutions to our customers, we believe that the talent and commitment of our employees will continue to drive revenue growth that outpaces the industry." ABOUT CONSTELLATION VENTURES - ---------------------------- Constellation Ventures manages $450 million in venture capital through offices in New York, Los Angeles and Tokyo. The fund invests in early to mid-stage companies that enable the distribution, management and control of information over emerging digital networks. Constellation Ventures provides its portfolio companies strategic value-added services by leveraging its Limited Partners that include Bear Stearns, Sony, Viacom, Young & Rubicam, Tribune, Dai Nippon Printing, NTT Data, Acxiom, Toyota and Singapore Technologies. For more information, please visit http://www.constellationventures.com. ABOUT SAVVIS - ------------ SAVVIS Communications Corp. (NASDAQ: SVVS) is a global managed service provider that delivers IP VPNs (virtual private networks), managed hosting and Internet services to medium-sized enterprises and the financial services market. The mid-market, which is underserved by traditional data communications carriers, is the fastest growing segment of the IP VPN market. In the demanding financial services industry, SAVVIS is a leading provider of high-performance networking services. SAVVIS' Financial XchangeSM, a private IP VPN service platform, connects more than 4,700 financial institutions to financial applications and data worldwide. Financial XchangeSM is also one of the largest carriers of Financial Information eXchange protocol (FIX) traffic in the United States and has partnerships with many FIX application and services providers. Known as "The Network that Powers Wall Street"SM, SAVVIS delivers the reliability, performance and security of traditional private networks, as well as the scalability and flexibility of the Internet, often at a price less than both. As a result, enterprises can connect their offices, partners and remote employees over an affordable private IP network and can also integrate SAVVIS' managed hosting services as well. The editors of Network Magazine named SAVVIS' IP VPNs Product of the Year for 2001. SAVVIS beat out well-known VPN providers such as AT&T (NYSE: T), WorldCom (NASDAQ: WCOM), Sprint (NYSE: FON) and Genuity (NASDAQ: GENU). SAVVIS was ranked the eighth fastest-growing technology company in North America on the 2001 Deloitte & Touche Technology Fast 500, which ranks companies based on five-year percentage revenue growth from 1996 - 2000. For more information about SAVVIS and its Intelligent IP NetworkingSM, visit: http://www.savvis.net FORWARD-LOOKING STATEMENTS - -------------------------- This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Although SAVVIS believes the expectations reflected in such forward-looking statements are based on reasonable assumptions, there can be no assurance that its expectations will be attained. Certain factors that could cause actual results to differ materially from SAVVIS' expectations are set forth as risk factors in SAVVIS' SEC reports and filings, including its annual report on Form 10-K for the year ended December 31, 2001, as filed with the Securities and Exchange Commission on March 29, 2002. Many of these factors are beyond SAVVIS' ability to control or predict. Forward-looking statements are not guarantees of performance. For forward-looking statements herein, SAVVIS claims the protection of the safe harbor for forward- looking statements contained in the Private Securities Litigation Reform Act of 1995. SAVVIS assumes no obligation to update or supplement forward-looking statements that become untrue because of subsequent events. CONTACTS: - --------- Carter B. Cromley SAVVIS Communications Director of Public Relations & Analyst Relations (703) 234-8033 carter.cromley@savvis.net Russell Sherman Bear, Sterns & Co. Inc. (212) 272-5219 russellsherman@bear.com -----END PRIVACY-ENHANCED MESSAGE-----