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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(AMENDMENT NO. 9)
------------------------------
SAVVIS, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE 805423 10 0
(Title of class of securities) (CUSIP number)
NANCY C. GARDNER, ESQ.
REUTERS AMERICA LLC.
GENERAL COUNSEL
THE REUTERS BUILDING
3 TIMES SQUARE
NEW YORK, NEW YORK 10036
(646) 223-4203
(Name, address and telephone number of person authorized
to receive notices and communications)
JUNE 3, 2005
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule
13d-7 for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 7 Pages)
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CUSIP No. 805423 10 0 13D Page 2 of 7
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- --------------------- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON REUTERS GROUP PLC
I.R.S. IDENTIFICATION NO. IRS NO.
OF ABOVE PERSON
- --------------------- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
- --------------------- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: Not Applicable
- --------------------- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- --------------------- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: England and Wales
- --------------------- ---------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER: 0
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
---------------------- ------------------------------------------------------------------------------
8 SHARED VOTING POWER: 0
---------------------- ------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER: 0
---------------------- ------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER: 0
- --------------------- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 0
- --------------------- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- --------------------- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0%
(see Item 5)
- --------------------- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: HC; CO
- --------------------- ---------------------------------------------------------------------------------------------------------
2
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CUSIP No. 805423 10 0 13D Page 3 of 7
- ---------------------------------------------------------------- ---------------------------------------------------
- --------------------- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON REUTERS S.A.
I.R.S. IDENTIFICATION NO. IRS NO.
OF ABOVE PERSON
- --------------------- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
- --------------------- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: WC
- --------------------- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- --------------------- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Switzerland
- --------------------- ---------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER: 0
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
---------------------- ------------------------------------------------------------------------------
8 SHARED VOTING POWER: 0
---------------------- ------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER: 0
---------------------- ------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER: 0
- --------------------- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 0
- --------------------- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- --------------------- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0%
(see Item 5)
- --------------------- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- --------------------- ---------------------------------------------------------------------------------------------------------
3
This Amendment No. 9 amends the Schedule 13D dated May 14, 2001, as
amended, filed by Reuters Group PLC ("RGPLC") and Reuters S.A., a Swiss
corporation that is a subsidiary of RGPLC and the successor by merger to Reuters
Holdings Switzerland S.A. ("RSA" and, together with RGPLC, the "Reporting
Persons"), with respect to the common stock, par value $.01 per share ("Common
Stock"), of SAVVIS, Inc. ("SAVVIS").
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 is hereby amended and supplemented as follows:
(a) The responses of the Reporting Persons to Rows (11) through (13)
of the cover pages of this Amendment No. 9 are incorporated herein by reference.
None of the Reporting Persons beneficially owns, and, to the best of
their knowledge, none of their directors or executive officers beneficially
owns, any shares of Common Stock.
(b) The responses of the Reporting Persons to (i) Rows (7) through
(10) of the cover pages of this Amendment No. 9 and (ii) Item 5(a) hereof are
incorporated herein by reference.
(c) On June 3, 2005, subsidiaries of RGPLC acquired substantially all
the businesses and operations of Moneyline Telerate Holdings, Inc., a Delaware
corporation ("MTH"), for purchase consideration consisting of $145 million in
cash, subject to adjustment, and 40,870 shares of Series A Convertible Preferred
Stock of SAVVIS (the "Preferred Stock") previously owned by RSA.
(d) Not applicable.
(f) On June 3, 2005, the Reporting Persons ceased to be the
beneficial owners of more than five percent of the Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Item 6 is hereby amended and supplemented as follows:
The 40,870 shares of Preferred Stock were transferred to MTH pursuant
to a Stock and Asset Purchase Agreement, dated as of December 20, 2004, as
amended, by and among Reuters Limited, RSA, MTH, the subsidiaries of MTH named
therein and One Equity Partners LLC (the "Purchase Agreement"). In connection
therewith, 21,239 shares of Preferred Stock were delivered into escrow pursuant
to an Escrow Agreement, dated as of June 3, 2005 (the "Escrow Agreement"), to
fund certain potential post-closing liabilities of MTH and its affiliates to the
RGPLC affiliates party to the Purchase Agreement. The Purchase Agreement and the
Escrow Agreement are filed as Exhibits hereto.
4
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 22. Stock and Asset Purchase Agreement, dated as of December 20,
2004 (the "Purchase Agreement"), by and among Reuters Limited,
Reuters S.A., Moneyline Telerate Holdings, Inc., the
subsidiaries of Moneyline Telerate Holdings, Inc. named therein
and One Equity Partners LLC (incorporated by reference to
Exhibit 4.13 of Reuters Group PLC's Annual Report on Form 20-F,
filed on March 9, 2005, File No. 333-08354).
Exhibit 23. Amendment No. 1 to the Purchase Agreement, dated as of May 20,
2005.
Exhibit 24. Amendment No. 2 to the Purchase Agreement, dated as of June 3,
2005.
Exhibit 25. Escrow Agreement, dated as of June 3, 2005, by and among
Moneyline Telerate Holdings, Inc., Reuters Limited, and The Bank
of New York.
Exhibit 26. Power of Attorney, dated March 15, 2004, by Reuters Group PLC.
Exhibit 27. Power of Attorney, dated May 27, 2005, by Reuters S.A.
5
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 7, 2005
REUTERS GROUP PLC
By: /s/ Stephen Lehman
--------------------------------
Name: Stephen Lehman
Title: Attorney-in-Fact
REUTERS S.A.
By: /s/ Stephen Lehman
--------------------------------
Name: Stephen Lehman
Title: Attorney-in-Fact
6
EXHIBIT INDEX
Exhibit 22. Stock and Asset Purchase Agreement, dated as of December 20,
2004 (the "Purchase Agreement"), by and among Reuters Limited,
Reuters S.A., Moneyline Telerate Holdings, Inc., the
subsidiaries of Moneyline Telerate Holdings, Inc. named therein
and One Equity Partners LLC (incorporated by reference to
Exhibit 4.13 of Reuters Group PLC's Annual Report on Form 20-F,
filed on March 9, 2005, File No. 333-08354).
Exhibit 23. Amendment No. 1 to the Purchase Agreement, dated as of May 20,
2005.
Exhibit 24. Amendment No. 2 to the Purchase Agreement, dated as of June 3,
2005.
Exhibit 25. Escrow Agreement, dated as of June 3, 2005, by and among
Moneyline Telerate Holdings, Inc., Reuters Limited, and The Bank
of New York.
Exhibit 26. Power of Attorney, dated as of March 15, 2004, by Reuters Group
PLC.
Exhibit 27. Power of Attorney, dated as of May 27, 2005, by Reuters S.A.
7
Exhibit 23
EXECUTION COPY
AMENDMENT NO. 1
TO
STOCK AND ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to Stock and Asset Purchase Agreement (this
"Amendment") is entered into as of this 20th day of May, 2005, by and among
MONEYLINE TELERATE HOLDINGS, INC., a Delaware corporation ("MTH"), REUTERS
LIMITED, a corporation organized under the laws of England and Wales
("Limited"), REUTERS S.A., a corporation organized under the laws of Switzerland
("RSA"; Limited and RSA being referred to collectively as "Reuters").
W I T N E S S E T H:
WHEREAS, MTH, Limited and RSA and certain other parties have
previously entered into that certain Stock and Asset Purchase Agreement by and
among them dated December 20, 2004 (the "Purchase Agreement");
WHEREAS, pursuant to Section 10.9 of the Purchase Agreement, such
Purchase Agreement may be amended by a written instrument signed on behalf of
MTH and Reuters; and
WHEREAS, MTH and Reuters wish to amend the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein
shall have the meaning given to them in the Purchase Agreement.
SECTION 2. Amendments to Purchase Agreement. The Purchase Agreement,
including the Exhibits thereto, and the Sellers' Disclosure Schedules are hereby
amended as of the date hereof as follows:
(a) Section 1.1 of the Purchase Agreement is hereby amended to add
the following definition:
""Hyperfeed License Agreement" means the Trading Room System Software
License Agreement, dated May 20, 2005, by and among Limited, MTH and
Hyperfeed Technologies, Inc."
(b) The definition of "Ancillary Agreements" contained in Section 1.1
of the Purchase Agreement is hereby amended and restated in its entirety to
state as follows:
""Ancillary Agreements" means the Escrow Agreement, the Blanket
Assignment of Leases, any Local Assignment of Leases, the
Intellectual Property Assignments, the Bill of Sale, Assignment and
Assumption Agreements, the Hyperfeed License Agreement and any and
all other agreements to be executed by the Sellers and the Purchasers
or, as applicable, their respective Affiliates in connection with
consummating the transactions contemplated by this Agreement."
(c) Section 3.16 of the Purchase Agreement is hereby amended to add
the following sentence at the end of such section:
"The representations and warranties made by MTH in the Hyperfeed
License Agreement are true and correct in all respects."
(d) Section 3.16(b) of the Sellers' Disclosure Schedule is hereby
amended to add the following item:
"The Hyperfeed License Agreement"
(e) A new Section 6.30 is added to state as follows:
"Section 6.30 Intellectual Property Matters. MTH and Reuters agree
that:
6.30.1 MTH shall promptly commence all necessary work
under the project plan attached hereto as Exhibit A (the "Active8
Project Plan") to create the Licensee Desktop as specified in the
Hyperfeed License Agreement, including modifing Version 2.11 of the
Telerate Active8 software to (i) remove any remote upgrade
functionality ("Upgrade Removal"), (ii) work only with MTH's TRS
Platform (the "TRS Platform") and (iii) remove all references to the
term "Active8" or any other Mark or any term similarly confusing
thereto; provided that each of Reuters and MTH shall bear fifty
percent of all out-of-pocket costs and expenses reasonably documented
by invoices, receipts or other evidence that: (i) are incurred in
connection with implementing the Active8 Project Plan (including all
agreed upon modifications thereto) and (ii) are not the
responsibility of Hyperfeed Technologies, Inc. pursuant to the terms
of the Hyperfeed License Agreement.
MTH shall notify Reuters, on a weekly basis or more frequently as
Reuters may reasonably request, of the progress under the Active8
Project Plan and Reuters shall have the right to perform such
inspections or other reviews during normal business hours as it may
reasonably request, upon reasonable advance notice to MTH, in order
to verify the progress under the Active8 Project Plan.
6.30.2 (a) Pursuant to the project plan attached hereto as
Exhibit B (the "TRS Project Plan"), MTH will use its commercially
reasonable efforts to deliver to Reuters, as promptly as practicable,
(i) a reasonably detailed written description of the required
2
environment (including, without limitation, hardware, third party and
software) necessary to create the object code for the TRS Software as
set forth on the Schedule A of the Hyperfeed License Agreement (as
may be modified pursuant to this paragraph, the "Hyperfeed TRS
Software") and (ii) the collection of files (including, without
limitation, source code, configuration and scripts) comprising the
Hyperfeed TRS Software, including any modifications necessary to
ensure that the Hyperfeed TRS Software (excluding feedhandlers) works
only with the TRS Platform.
(b) MTH shall notify Reuters, on a weekly basis or more
frequently as Reuters may reasonably request, of the progress being
made under the TRS Project Plan. Where possible, Reuters will be
provided with copies of the Hyperfeed Software materials identified
in 6.30.2(a)(ii) during the modification process such that Reuters
may perform validation work. Any review of the Hyperfeed TRS Software
by Reuters will take place at a Reuters location and only on a
stand-alone machine(s) not connected to any Reuters network of
systems.
6.30.3 The Hyperfeed TRS Software and any other
information or software delivered to Reuters under this Section 6.30
will be used only by Reuters and its employees for the limited
purposes described in this Section 6.30 and will be returned or
destroyed at the election of MTH upon any termination of this
Agreement. The parties agree that each of Reuters and MTH shall bear
fifty percent of all out-of-pocket costs and expenses reasonably
documented by invoices, receipts or other evidence that: (i) are
incurred in connection with implementing the TRS Project Plan,
including making any modifications to the Hyperfeed TRS Software in
accordance herewith and performing all testing of the Hyperfeed TRS
Software and (ii) are not the responsibility of Hyperfeed
Technologies, Inc. pursuant to the terms of the Hyperfeed License
Agreement.
(f) A new Section 7.2.9 is added to state as follows:
"Prior to the Closing, MTH shall have delivered the Hyperfeed TRS
Software to Reuters complying with the requirements of the Hyperfeed
License Agreement and Reuters shall have had a reasonable
opportunity, but at least one week, to confirm the same."
(g) A new Section 7.2.10 is added to state as follows:
"Prior to the Closing, either (i) the Licensee Desktop shall have
been created or (ii) the Upgrade Removal shall have been completed
and in view of the progress on the Active8 Project Plan to date, all
remaining work on the Active8 Project Plan and to create the Licensee
Desktop in conformance with the terms of the Hyperfeed License
Agreement shall be reasonably expected to be accomplished within four
3
weeks of the Closing Date, and in either case Reuters shall have had
a reasonable opportunity to confirm the same."
(h) Section 9.1.3 of the Purchase Agreement is hereby amended by
adding the following at the end of such section:
"; (i) fifty percent of any Liabilities consisting of out-of-pocket
costs and expenses reasonably documented by invoices, receipts or
other evidence that are incurred by Reuters subsequent to the Closing
Date to create the Licensee Desktop which are not the responsibility
of Hyperfeed Technologies, Inc. pursuant to the terms of the
Hyperfeed License Agreement; and (j) fifty percent of all fees, costs
and expenses of or relating to the "Monitoring Trustee" under and as
defined in the Commitments Letter, dated 20 May 2005 (the
"Commitments Letter"), from Reuters Limited and Moneyline Telerate
Holdings, Inc. to the European Commission (such fees, costs and
expenses, the "Monitoring Trustee Fees"), to the extent such
Monitoring Trustee Fees are incurred on or before the thirty (30)
month anniversary of the Closing Date and exceed $500,000 up to a
maximum of $2,000,000 (for the avoidance of doubt, the Sellers'
maximum indemnification obligation under this clause (j) shall be
$750,000)."
(i) The first sentence of Section 9.1.6 of the Purchase Agreement is
hereby amended and restated in its entirety to state as follows:
"The Sellers' indemnification obligations contained in clause (a) of
Section 9.1.3, other than for a breach of a representation or
warranty contained in Sections 3.1, 3.2.1, 3.2.3, 3.3, 3.14 and
3.15.5 (collectively, the "Sellers' Unlimited Warranties"), shall not
apply to any claim for Damages until the aggregate amount of all
Claims under clause (a) of Section 9.1.3 totals $2,000,000 (the
"Basket Amount"), in which event the Sellers' indemnification
obligations contained in clause (a) of Section 9.1.3 shall only apply
to the amount of such Damages in excess of the Basket Amount, subject
to a maximum liability to Purchasers and the Indemnified Parties for
aggregate Damages equal to the Cap Amount; provided, that the
Sellers' indemnification obligations contained in clause (a) of
Section 9.1.3 for a breach of a representation or warranty contained
in Sections 3.4.2 and 3.16 (in either case, solely with respect to
the Hyperfeed License Agreement) shall not be subject to the Basket
Amount limitations set forth in the foregoing sentence of this
Section 9.1.6, but shall be subject to a maximum liability to
Purchasers and the Indemnified Parties for aggregate Damages equal to
the Cap Amount."
4
(j) A new Section 9.1.10 is added to state as follows:
"It is hereby agreed that Reuters shall be entitled to submit a Claim
Notice (as defined in the Escrow Agreement) in accordance with the
provisions of the Escrow Agreement on the second anniversary of the
Closing Date (the "Second Anniversary Date") in respect of Monitoring
Trustee Fees that may be incurred following the Second Anniversary
Date in an amount (the "Monitoring Trustee Claim Amount") equal up
to, at Reuters discretion, $750,000 less the aggregate amount of
Monitoring Trustee Fees previously paid by MTH in the event that the
Monitoring Trustee shall not have ceased to act as Monitoring Trustee
pursuant to the Commitments Letter on or prior to the Second
Anniversary Date; provided, that MTH and Limited agree to deliver
joint written instructions to the Escrow Agent promptly after the
thirty (30) month anniversary of the Closing Date to disburse to MTH
an amount equal to the remainder of the Monitoring Trustee Claim
Amount after payment of the portion of all Monitoring Trustee Fees
incurred on or before the thirty (30) month anniversary of the
Closing Date for which MTH is responsible."
(k) Section (f) of Exhibit X of the Purchase Agreement is hereby
amended and restated in its entirety to state as follows:
"(f) any and all Liabilities related to any of the matters
set forth on Section 3.13.1 of the Sellers' Disclosure Schedule,
except with respect to Liabilities arising out of the Real Property
Lease located at 7-9 Harrison Street, New York, NY in an amount up to
and including $750,000 in the aggregate;"
SECTION 3. No Implied Amendments. Except as herein provided, the
Purchase Agreement shall remain in full force and effect and is ratified in all
respects. On and after the effectiveness of this Amendment, each reference in
the Purchase Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import, and each reference to the Purchase Agreement in any other
agreements, documents or instruments executed and delivered pursuant to the
Purchase Agreement, including without limitation, the Ancillary Agreements,
shall mean and be a reference to the Purchase Agreement, as amended by this
Amendment.
SECTION 4. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[Signatures Follow]
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MONEYLINE TELERATE HOLDINGS, INC.,
for itself and on behalf of the other Sellers
By: /s/ Bernard F. Battista
--------------------------------------------
Name: Bernard F. Battista
Title: President
REUTERS LIMITED
By: /s/ Stephen Lehman
--------------------------------------------
Name: Stephen Lehman
Title: Attorney-in-Fact
REUTERS S.A.
By: /s/ Stephen Lehman
--------------------------------------------
Name: Stephen Lehman
Title: Attorney-in-Fact
SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE SHARE AND ASSET PURCHASE AGREEMENT
TELERATE EXHIBIT B
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"TRS SOLARIS CODE RELEASE" SCHEDULE
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DESCRIPTION DATE
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PROJECT PLAN SIGNOFF
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TASKS
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Update build docs to incorporate feedback/details from escrow verification COMPLETED
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Re-run testing on clean trstest and mcttest boxes Fri 20 May
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TRS Beta build Tue 24 May
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Final update and packaging of CDs and docs Fri 27 May
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20 May 2005 Confidential
Exhibit 24
EXECUTION COPY
AMENDMENT NO. 2
TO
STOCK AND ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 to the Stock and Asset Purchase Agreement (this
"Amendment") is entered into as of this 3rd day of June, 2005, by and among
MONEYLINE TELERATE HOLDINGS, INC., a Delaware corporation ("MTH"), REUTERS
LIMITED, a corporation organized under the laws of England and Wales
("Limited"), REUTERS S.A., a corporation organized under the laws of Switzerland
("RSA"; Limited and RSA being referred to collectively as "Reuters").
W I T N E S S E T H:
WHEREAS, MTH, Reuters and certain other parties have previously
entered into that certain Stock and Asset Purchase Agreement by and among them
dated December 20, 2004, as amended (the "Purchase Agreement");
WHEREAS, pursuant to Section 10.9 of the Purchase Agreement, the
Purchase Agreement may be amended by a written instrument signed on behalf of
MTH and Reuters; and
WHEREAS, MTH and Reuters wish to amend the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein
shall have the meaning given to them in the Purchase Agreement.
SECTION 2. Amendments to Purchase Agreement. The Purchase Agreement,
including the Exhibits and Schedules thereto, is hereby amended as of the date
hereof as follows:
(a) Section 1.1 is hereby amended to add the following definition:
""Calculation Date" means June 1, 2005."
(b) Section 1.1 is hereby amended to add the following definition:
""Closing Balance Sheet Date" means May 31, 2005."
(c) The definition of "Escrow Amount" contained in Section 1.1 of the
Purchase Agreement is hereby amended and restated in its entirety to state as
follows:
""Escrow Amount" means (i) an amount in cash equal to
$30,000,000, (ii) the Disputed WC Escrow Amount, if any, (iii) the
Retention Bonuses Escrow Amount, and (iv) one or more stock
certificates, together with stock powers executed in blank,
representing the SAVVIS Escrow Shares."
(d) The definition of "SAVVIS Escrow Shares" contained in Section 1.1
of the Purchase Agreement is hereby amended and restated in its entirety to
state as follows:
""SAVVIS Escrow Shares" means such number of shares of
SAVVIS Stock as shall have an aggregate SAVVIS Stock Fair Market
Value on the Calculation Date of $15,000,000."
(e) Section 9.8 and the definition of "SAVVIS Stock" contained in
Section 1.1 are each hereby amended to substitute the phrase "Series A
Convertible Preferred Stock" for each occurrence of the phrase "Series A
Convertible Redeemable Preferred Stock" in such Section and definition.
(f) Section 2.3.16 is hereby amended and restated in its entirety to
state as follows:
2.3.16 Reuters shall deliver to OEP the Letter of Credit,
together with a certificate executed by a Director of Limited and
addressed to OEP and JP Morgan Chase Bank, N.A., dated the Closing
Date, certifying that no request for a draw under the Letter of
Credit was made and requesting immediate termination of the Letter of
Credit.
(g) Section 2.5.1 is hereby amended and restated in its entirety to
state as follows:
"2.5.1 No later than one hundred twenty (120) days after
the Closing Date (subject to the Sellers providing the access
described below), Reuters shall cause to be prepared and delivered to
MTH, an unaudited consolidated balance sheet of the Business as of
the close of business on the Closing Balance Sheet Date (the "Closing
Balance Sheet") and the Closing Statement (as defined below) setting
forth Reuters' calculation of Closing Working Capital derived from
the Closing Balance Sheet and prepared in accordance with Exhibit XI.
The closing statement (the "Closing Statement") shall present the Net
Working Capital as of the close of business on the Closing Balance
Sheet Date ("Closing Working Capital") as derived from the Closing
Balance Sheet, and the Closing Statement shall have been audited in
accordance with auditing standards generally accepted in the United
States and in accordance with the accounting principles set forth on
Exhibit XI (the "Agreed Principles") by a nationally recognized
independent accounting firm experienced in audit projects. "Net
Working Capital" means those consolidated current assets of the
Business, reduced by those consolidated current liabilities of the
Business, in each case as determined in accordance with the Agreed
Principles. The preparation of the Closing Balance Sheet and the
2
Closing Statement shall be for the sole purpose of determining Net
Working Capital as of the close of business on the date immediately
prior to the Calculation Date. Attached hereto as Exhibit XI is a
schedule intended to show an illustrative calculation of Net Working
Capital after giving effect to the adjustments required in the Agreed
Principles ("Reference Statement"). Following the Closing, the
Sellers shall give Reuters and its independent auditors sufficient
access to their books, records and personnel to allow them to prepare
and audit the Closing Balance Sheet and the Closing Statement of
Closing Working Capital. The Sellers and the Sellers' accountants
shall (subject to execution by the Sellers and the Sellers'
accountants of such documents as reasonably requested by such
accountants) have sufficient access to Reuters' personnel and
Reuters' accountants and to examine the work papers, schedules and
other documents prepared or reviewed by Reuters' accountants in
connection with the preparation of their report on the Closing
Statement of Closing Working Capital and Reuters' personnel and
Reuters' accountants shall cooperate with Sellers in connection
therewith. Any disputes with respect to the Net Working Capital
calculation shall be resolved as set forth in Section 2.5.3.2.
(h) A new Section 6.31 is added to state as follows:
"Section 6.31 Restriction on Distributions. Without limiting the
obligations of the Sellers under Section 6.3, between the close of
business the date immediately prior to on the Calculation Date and
the Closing, the Sellers shall not make or cause to be made any
payment or distribution of any nature whatsoever from the Purchased
Subsidiaries to the Sellers or from the Sellers to any Affiliates of
the Sellers, other than distributions of any Excluded Assets and
distributions expressly contemplated to be made pursuant to Sections
2.3.2 and 2.3.3, and as set forth on Schedule F."
(i) A new Section 6.32 is added to state as follows:
"Section 6.32 Retention Bonuses Escrow Amount. MTH and Reuters agree
that:
6.32.1 An amount equal to $9,522,385, representing the sum
of (a) estimates of the aggregate maximum amount of retention bonuses
to which the Business Employees specified by MTH to Reuters in
writing prior to the Closing Date may be entitled after the Closing
pursuant to the Moneyline Telerate Retention Bonus Plan (the "MTH
Retention Plan"), based upon the retention bonus amounts awarded to
such Business Employees by MTH as specified by MTH to Reuters in
writing prior to the Closing Date, plus (b) estimates of the
aggregate amount of all Taxes payable thereon by Reuters or any of
their Subsidiaries including the Purchased Subsidiaries, shall be
3
delivered by the Purchasers to the Escrow Agent in cash at the
Closing (the "Retention Bonuses Escrow Amount").
6.32.2 Upon or as soon as practicable after the thirty
(30) day anniversary of the Closing Date, Reuters shall confirm to
MTH the aggregate amount of retention bonuses paid to those Business
Employees specified by MTH to Reuters in writing prior to the Closing
Date who have satisfied the conditions under the MTH Retention Plan
for payment of the retention bonus amounts awarded to such Business
Employees by MTH as specified by MTH to Reuters in writing prior to
the Closing Date, together with the aggregate amount of all Taxes
payable thereon by Reuters or any of their Subsidiaries including the
Purchased Subsidiaries (the "MTH Retention Payments"), and MTH and
Limited shall deliver joint written instructions to the Escrow Agent
(a) to disburse to or as directed by Limited an amount equal to the
MTH Retention Payments from the Retention Bonuses Escrow Amount, and
(b) to disburse to MTH an amount equal to the remainder, if any, of
the Retention Bonuses Escrow Amount after deducting the payments
under clause (a) of this Section 6.32.2."
(j) A new Section 6.33 is added to state as follows:
"Section 6.33 Post-Closing Obligations Relating to Trademark Chain of
Title and Domain Names. Following the Closing, the Sellers agree to
take the following measures: (a) to complete the recordations and/or
registrations necessary to reflect a clear and unbroken chain of
title from the original applicants to the Sellers of the TELERATE
Marks, (i) in connection with recordation and/or registration
documentation already provided by the Sellers to their local
trademark agents but not yet filed, instructing their local trademark
agents to accept instructions from the Purchasers in completing such
filing at the Sellers' expense, (ii) in connection with recordation
and/or registration documentation collected and prepared by the
Sellers but not yet provided to their local trademark agents for
filing, providing the Purchasers with such documentation for the
Purchasers' local trademark agents to file, and (iii) using
commercially reasonable efforts to provide the Purchasers with powers
of attorney for all current and former Affiliates of the Sellers that
are in the chain of title to such TELERATE Marks whose ownership
interest has not yet been recorded; and (b) to use their commercially
reasonable efforts to undertake and complete the transfer procedure
of the Sellers' domain names, whether online or otherwise, as
required by the relevant domain name registrars, and provide the
Purchasers with any and all related user names and passwords for the
relevant domain name accounts such that the Purchasers will have
direct access to such accounts."
4
(k) A new Section 6.34 is added to state as follows:
"Section 6.34. Exchange Fee Accruals. It is agreed by the parties
that the exchange fee accruals of $3,700,000, reduced by cash
payments made or agreed settlement amounts set forth in reasonable
binding documentation entered into from October 31, 2004 through the
close of business on the Closing Balance Sheet Date in an aggregate
amount of $1,300,000, are deemed adequate as of the Closing Balance
Sheet Date, and such reduced accruals will not be disputed in the
determination of Final Working Capital pursuant to Section 2.5."
(l) Clause (e) of Section 9.1.3 is hereby amended in its entirety to
state as follows:
"(e) any Liabilities in respect of fees or payments owed by the
Business Entities to Data Providers in excess of $3,700,000 in the
aggregate for content provided to the Business prior to the date
hereof which are determined to be due pursuant to audit or similar
procedures; provided, that any such amounts are payable in respect of
Liabilities of the Business Entities incurred prior to the Closing;"
(m) Section 9.1.3 is hereby amended by adding the following at the
end of such Section:
"; and (k) any claims against Reuters and its Affiliates (including
the Purchased Subsidiaries) in respect of the MTH Retention Plan."
(n) Sections 9.1.6, 9.1.7, 9.1.9 and 9.8 are each hereby amended to
substitute the phrase "SAVVIS Stock Fair Market Value as of the Calculation
Date" for each occurrence of the phrase "SAVVIS Stock Fair Market Value as of
the Closing Date" or "SAVVIS Stock Fair Market Value on the Closing Date" in
such Sections.
(o) Exhibit X of the Purchase Agreement is hereby amended by adding
the following at the end of such Exhibit:
"(l) any and all obligations, expenses or exposures with
respect to termination of employees in France by the Business
Entities or in which the Business Entities were involved prior to the
Closing."
(p) Exhibit XI of the Purchase Agreement is hereby amended and
restated in its entirety as set forth in Annex A hereto.
(q) A new Schedule F - "Sellers' Closing Plan of Action", attached
hereto as Annex B, is hereby added to the Schedules annexed to the Purchase
Agreement.
5
SECTION 3. No Implied Amendments. Except as herein provided, the
Purchase Agreement shall remain in full force and effect and is ratified in all
respects. On and after the effectiveness of this Amendment, each reference in
the Purchase Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import, and each reference to the Purchase Agreement in any other
agreements, documents or instruments executed and delivered pursuant to the
Purchase Agreement, including without limitation, the Ancillary Agreements,
shall mean and be a reference to the Purchase Agreement, as amended by this
Amendment.
SECTION 4. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[Signatures Follow]
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
MONEYLINE TELERATE HOLDINGS, INC.,
for itself and on behalf of the other Sellers
By: /s/ Bernard F. Battista
-----------------------------------------
Name: Bernard F. Battista
Title: President
REUTERS LIMITED
By: /s/ Eric Lint
-----------------------------------------
Name: Eric Lint
Title: Attorney-in-Fact
REUTERS S.A.
By: /s/ Eric Lint
-----------------------------------------
Name: Eric Lint
Title: Attorney-in-Fact
SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE SHARE AND ASSET PURCHASE AGREEMENT
ANNEX A
EXHIBIT XI
AGREED PRINCIPLES
The Closing Balance Sheet and the Closing Statement of Closing Working Capital
shall: (a) each be prepared (i) in accordance with GAAP applied in a manner
consistent with the preparation of the Balance Sheet and (ii) using the same
accounting methods, policies, practices and procedures, with consistent
classifications, judgments and estimation methodology, as were used in the
preparation of the Financial Statements to the extent the same were in
accordance with GAAP, as such principles, accounting methods, policies,
practices, procedures, classifications, judgments and estimation methodology are
modified by the Agreed Principles; and (b) in the case of the Closing Statement
of Closing Working Capital, fairly present, in all material respects, the
consolidated working capital position of the Business, excluding the Excluded
Assets and Excluded Liabilities, as of the close of business on the Closing
Balance Sheet Date without giving effect to any purchase accounting adjustments
arising from the sales of Transferred Assets and Purchased Subsidiaries as
contemplated by the Agreement. Notwithstanding any provision of this Exhibit XI
or the Agreement to the contrary, the Agreed Principles shall govern in the
event and to the extent the Agreed Principles are in conflict with GAAP or the
accounting methods, policies, practices, procedures, classifications, judgments
and estimation methodology used in the preparation of the Financial Statements.
The Reference Statement represents solely a good faith attempt by the parties to
illustrate a calculation of Net Working Capital as of the date of such statement
as if it were the close of business on the Closing Balance Sheet Date on the
basis set forth herein and is intended as an aid in interpreting these Agreed
Principles (including especially as to the general categories of items
specifically enumerated as included) but shall not be binding, and shall not be
deemed to modify in any respect the Agreed Principles, GAAP and the accounting
methods, policies, practices, procedures, classifications, judgments and
estimation methodology used in the preparation of the Financial Statements.
Notwithstanding any provision of the Agreement to the contrary (except as
provided in Section c below), the parties hereto agree and acknowledge that the
Closing Balance Sheet and the Closing Statement of Closing Working Capital shall
not reflect any Tax assets or Tax liabilities (to the extent a Seller or its
Affiliate has indemnified or is obligated to indemnify the Purchasers or their
Affiliates therefor), in each case, whether current, deferred or otherwise.
The following accounting policies apply to the determination of
Closing Working Capital.
A. TRADE AND DISTRIBUTOR RECEIVABLE RESERVE
The trade and distributor accounts receivable reserve shall equal the
sum of (i) specific gross trade and distributor accounts receivable identified
as being uncollectible and (ii) the remaining gross trade and distributor
accounts receivable greater than 180 days past due and 50% of the remaining
gross trade and distributor accounts receivable greater than 90 days past due
but less than 180 days past due. For the avoidance of doubt, all reserves for
trade and distributor receivables shall be reflected on a gross basis with
respect to value added taxes, goods and services taxes, and similar taxes.
A-1
B. EXCLUDED ASSETS
All Excluded Assets shall be excluded from the Closing Statement of Closing
Working Capital.
C. EXCLUDED LIABILITIES
All Excluded Liabilities shall be excluded from the Closing Statement of Closing
Working Capital with the exception of sales tax accrued and unpaid at the close
of business on the Closing Balance Sheet Date for the Purchased Subsidiaries.
D. LEASE ACCRUAL
The current liability for the lease termination accrual shall only include the
amounts due within the succeeding twelve months.
E. ACCRUED VACATION
Closing Working Capital shall include an accrual for unused vacation (based on
actual time accrued by each individual Transferred Employee) in accordance with
the Business Entities' HR policy.
F. BONUSES
Closing Working Capital shall include liabilities for employee bonuses based
upon the Business Entities' existing plans and practices, and individual
contracts, in each case, as such plans, practices and contracts relate only to
Transferred Employees, to the extent the Purchased Subsidiaries, the Purchasers
or any Affiliate thereof has liability therefor. For purposes of the computation
of Closing Working Capital, the discretionary portion of the bonus accrual set
forth on the Reference Statement shall only be reduced for cash payments or
agreed settlement amounts set forth in reasonable binding documentation prior to
the close of business on the date immediately prior to the Calculation Date.
G. COMMISSIONS
Closing Working Capital shall include an accrual for commissions (based upon
actual amounts payable to employees) in accordance with the Business Entities'
commission plan. For purposes of the computation of Closing Working Capital, the
commission accrual set forth on the Reference Statement shall only be reduced
for cash payments or agreed settlement amounts set forth in reasonable binding
documentation prior to the close of business on the date immediately prior to
the Calculation Date.
H. DATA FEES AND COMMUNICATION ACCRUALS
The accruals for the obligations to pay fees or other amounts to data providers,
SAVVIS or other network, field service or communication providers shall provide
for (i) all outstanding and unpaid invoices for periods up to the close of
business on the Closing Balance Sheet Date and, if the latest period invoiced
for each such provider ends before the close of business on the date immediately
prior to the Calculation Date, an estimate from the end of such period through
A-2
the close of business on the Closing Balance Sheet Date and (ii) an estimate of
the fees due to data providers, SAVVIS or other network, field service or
communication providers, which were not invoiced prior to the close of business
on the date immediately prior to the Calculation Date. For purposes of the
computation of Closing Working Capital, the data fees (including the exchange
fee audits) and communication accruals set forth on the Reference Statement
shall only be reduced for cash payments or agreed settlement amounts set forth
in reasonable binding documentation prior to the close of business on the date
immediately prior to the Calculation Date.
I. TRANSITION SERVICES AGREEMENT ASSETS AND LIABILITIES
Current assets and current liabilities related to the Transition Services
Agreement included in the Closing Statement of Closing Working Capital shall be
limited to amounts invoiced, but unpaid, with respect to periods up until the
close of business on the date immediately prior to the Calculation Date,
including invoices, with respect to the period ending on the close of business
on the date immediately prior to the Calculation Date, to be issued after the
close of business on the Closing Balance Sheet Date but prior to the delivery by
the Purchasers of the Closing Statement of Closing Working Capital pursuant to
Section 2.5.1. Moneyline Deferred Amounts and Reuters Deferred Amounts under and
as defined in the TSA Amendment, and any interest in respect thereof, shall not
be included on the Closing Statement of Closing Working Capital.
J. SELLER RESTRUCTURING ACTIONS
No current asset or current liabilities shall be included for any items which
would constitute "Restructuring Cost Savings" under Section 2.6 of the Agreement
provided that such amount was not included in the adjustment to the Preliminary
Purchase Price actually made pursuant to Section 2.6.
K. ADVANCE PURCHASE PRICE LIABILITY
No advance Purchase Price liability resulting from the Interim Funding or any
accrued interest thereon shall be included on the Closing Statement of Closing
Working Capital.
L. ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE
Accounts receivable and accounts payable shall be reflected on a gross basis
with respect to value added taxes, goods and services taxes, and similar taxes.
A-3
ANNEX B
SCHEDULE F (SELLERS' CLOSING PLAN OF ACTION)
B-1
CLOSING PLAN OF ACTION
REUTERS ACQUISITION OF MONEYLINE TELERATE
June 3, 2005
The following actions shall be deemed to occur simultaneously at the Closing,
except for items 21 through 24, which shall occur sequentially and shall be
taken immediately following the other actions set forth below.
1. Moneyline Telerate Holdings, Inc. shall terminate the employment by Moneyline
Telerate Holdings, Inc. of certain employees identified by the Purchasers (as
defined in the Purchase Agreement) to be terminated.
2. Moneyline Telerate shall distribute to Moneyline Telerate Holdings, Inc. all
intercompany accounts receivables and notes receivable from any direct or
indirect subsidiary of Moneyline Telerate Holdings, Inc. (each, an "Affiliate").
Moneyline Telerate Holdings, Inc. shall acquire such intercompany accounts and
notes receivable.
3. Moneyline Telerate Holdings, Inc. shall contribute to the capital of
Moneyline Telerate or assume, as appropriate, any intercompany accounts payable
and notes payable from Moneyline Telerate to an Affiliate.
4. Moneyline Telerate International shall distribute to Moneyline Telerate
Holdings, Inc. all intercompany accounts receivables and notes receivable from
any Affiliate. Moneyline Telerate Holdings, Inc. shall acquire such intercompany
accounts and notes receivable.
5. Moneyline Telerate Holdings, Inc. shall contribute to the capital of
Moneyline Telerate International or assume, as appropriate, any intercompany
accounts payable and notes payable from Moneyline Telerate International to an
Affiliate.
6. Moneyline Network, Inc. shall distribute to Moneyline Telerate Holdings, Inc.
all intercompany accounts receivables and notes receivable from any Affiliate.
Moneyline Telerate Holdings, Inc. shall acquire such intercompany accounts and
notes receivable.
7. Moneyline Telerate Holdings, Inc. shall contribute to the capital of
Moneyline Network, Inc. or assume, as appropriate, any intercompany accounts
payable and notes payable from Moneyline Network, Inc. to an Affiliate.
8. Moneyline Network, Inc. shall effect a distribution of Moneyline Network,
Inc.'s entire equity interest in MarketAxess Holdings Inc. to Moneyline Telerate
Holdings, Inc.
9. Moneyline Telerate shall effect a distribution of Moneyline Telerate's entire
equity interest in CanDeal.ca Inc. to Moneyline Telerate Holdings, Inc.
10. Moneyline Telerate shall execute, and shall obtain execution by Moneyline
Telerate Holdings, Inc., Moneyline Telerate International, Moneyline Network,
Inc. and One Equity Partners LLC, of an Agreement of Modification of Contract,
whereby Moneyline Telerate will be released from all of its rights and
obligations in the Term Loan and Guarantee Agreement, dated as of September 26,
2003, as amended by the Second, Third, Fourth, Fifth and Sixth Amendments
thereto, between Moneyline Telerate Holdings, Inc., Moneyline Telerate,
Moneyline Telerate International, Moneyline Network, Inc., Moneyline Networks,
LLC and One Equity Partners LLC.
11. Moneyline Telerate International shall execute, and shall obtain execution
by Moneyline Telerate Holdings, Inc., Moneyline Telerate, Moneyline Network,
Inc. and One Equity Partners LLC, of an Agreement of Modification of Contract,
whereby Moneyline Telerate International will be released from all of its rights
and obligations in the Term Loan and Guarantee Agreement, dated as of September
26, 2003, as amended by the Second, Third, Fourth, Fifth and Sixth Amendments
thereto, between Moneyline Telerate Holdings, Inc., Moneyline Telerate,
Moneyline Telerate International, Moneyline Network, Inc., Moneyline Networks,
LLC and One Equity Partners LLC.
12. Moneyline Network, Inc. shall execute, and shall obtain execution by
Moneyline Telerate Holdings, Inc., Moneyline Telerate International, Moneyline
Telerate and One Equity Partners LLC, of an Agreement of Modification of
Contract, whereby Moneyline Network, Inc. will be released from all of its
rights and obligations in the Term Loan and Guarantee Agreement, dated as of
September 26, 2003, as amended by the Second, Third, Fourth, Fifth and Sixth
Amendments thereto, between Moneyline Telerate Holdings, Inc., Moneyline
Telerate, Moneyline Telerate International, Moneyline Network, Inc., Moneyline
Networks, LLC and One Equity Partners LLC.
13. Moneyline Telerate shall execute, and shall obtain execution by Moneyline
Telerate Holdings, Inc., Moneyline Telerate International, Moneyline Network,
Inc. and One Equity Partners LLC, of an Agreement of Modification of Contract,
whereby Moneyline Telerate will be released from all of its rights and
obligations in the Security Agreement, dated as of September 26, 2003, as
amended by the Second, Third, Fourth, Fifth and Sixth Amendments thereto,
between Moneyline Telerate Holdings, Inc., Moneyline Telerate, Moneyline
Telerate International, Moneyline Network, Inc., Moneyline Networks, LLC and One
Equity Partners LLC.
14. Moneyline Telerate International shall execute, and shall obtain execution
by Moneyline Telerate Holdings, Inc., Moneyline Telerate, Moneyline Network,
Inc. and One Equity Partners LLC, of an Agreement of Modification of Contract,
whereby Moneyline Telerate International will be released from all of its rights
and obligations in the Security Agreement, dated as of September 26, 2003, as
amended by the Second, Third, Fourth, Fifth and Sixth Amendments thereto,
between Moneyline Telerate Holdings, Inc., Moneyline Telerate, Moneyline
Telerate International, Moneyline Network, Inc., Moneyline Networks, LLC and One
Equity Partners LLC.
2
15. Moneyline Network, Inc. shall execute, and shall obtain execution by
Moneyline Telerate Holdings, Inc., Moneyline Telerate International, Moneyline
Telerate and One Equity Partners LLC, of an Agreement of Modification of
Contract, whereby Moneyline Network, Inc. will be released from all of its
rights and obligations in the Security Agreement, dated as of September 26,
2003, as amended by the Second, Third, Fourth, Fifth and Sixth Amendments
thereto, between Moneyline Telerate Holdings, Inc., Moneyline Telerate,
Moneyline Telerate International, Moneyline Network, Inc., Moneyline Networks,
LLC and One Equity Partners LLC.
16. Moneyline Telerate International shall execute, and shall obtain execution
by Moneyline Telerate Holdings, Inc. and One Equity Partners LLC, of an
Agreement of Modification of Contract, whereby Moneyline Telerate International
will be released from all of its rights and obligations in the Pledge Agreement,
dated as of September 26, 2003, as amended by the Second, Third, Fourth, Fifth
and Sixth Amendments thereto, between Moneyline Telerate Holdings, Inc.,
Moneyline Telerate International and One Equity Partners LLC.
17. Moneyline Telerate International shall execute, and shall obtain execution
by Moneyline Telerate Holdings, Inc. and One Equity Partners LLC, of an
Agreement of Modification of Contract, whereby Moneyline Telerate International
will be released from all of its rights and obligations in the Grant of Security
Interest In and Mortgage of United States Trademarks and Patents, dated as of
September 26, 2003, as amended by the Second, Third, Fourth, Fifth and Sixth
Amendments thereto, between Moneyline Telerate Holdings, Inc., Moneyline
Telerate International and One Equity Partners LLC.
18. Moneyline Telerate Holdings, Inc. shall deliver to Reuters the resignations
of all of the directors and officers of the Purchased Subsidiaries (as defined
in the Purchase Agreement).
19. The Sellers shall deliver to the appropriate Purchaser or Purchasers, an
Assignment of Leases (as defined in the Purchase Agreement) for each Leased Real
Property (as defined in the Purchase Agreement) that is a Transferred Asset (as
defined in the Purchase Agreement).
20. The Sellers shall terminate any and all written or unwritten tax sharing,
allocation, indemnity and similar agreements or arrangements between or among
the Sellers on the one hand and any Purchased Subsidiary (as defined in the
Purchase Agreement), on the other hand.
21. The Sellers (as defined in the Purchase Agreement) shall execute,
acknowledge and deliver to the Purchasers bills of sale, endorsements and other
instruments of sale, conveyance, transfer and assignment.
22. Moneyline Telerate International shall effect a distribution of Moneyline
Telerate International's entire equity interest in Moneyline Telerate (Canada),
Inc., Moneyline Telerate (Global) SARL, Moneyline Telerate (Australia) Pty. Ltd.
and Moneyline Telerate (Thailand) Ltd. to Moneyline Telerate Holding, Inc.
3
23. Moneyline Network, Inc. shall effect a distribution of the Moneyline
Network, Inc.'s entire equity interest in Moneyline Network U.K./Europe, Ltd. to
Moneyline Telerate Holdings, Inc.
24. Moneyline Telerate Holdings, Inc. shall deliver or cause to be delivered to
the Purchasers one or more stock certificates, together with stock powers
executed in blank, representing all of the issued and outstanding capital stock
of the Purchased Subsidiaries.
4
Exhibit 25
EXECUTION COPY
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Escrow Agreement") is made and entered
into as of this 3rd day of June, 2005, by and among MONEYLINE TELERATE HOLDINGS,
INC. a Delaware corporation ("MTH"), REUTERS LIMITED, a company organized under
the laws of England and Wales ("Limited"), and THE BANK OF NEW YORK, a New York
banking corporation (the "Escrow Agent").
RECITALS
WHEREAS, MTH and Limited are parties to that certain Stock and Asset
Purchase Agreement, dated as of December 20, 2004, as amended on May 20, 2005
and June 3, 2005 (the "Purchase Agreement"), by and among MTH, certain
subsidiaries of MTH (as set forth in the Purchase Agreement and, together with
MTH, the "Sellers"), Limited, Reuters S.A. ("RSA"; RSA together with Limited
being referred to as "Reuters", and Reuters, together with any of their
designated Affiliates, being referred to as the "Purchasers") and One Equity
Partners LLC (for the limited purposes set forth in the Purchase Agreement);
WHEREAS, pursuant to Section 2.3.10 and 2.3.12 of the Purchase
Agreement respectively, (i) the Purchasers agreed to deliver an amount in cash
equal to $39,522,385; and (ii) MTH agreed to deliver to the Escrow Agent at the
Closing (as defined below) the SAVVIS Escrow Shares (as defined below), together
with stock powers duly executed in blank (the $39,522,385 delivered by Purchaser
together with the SAVVIS Escrow Shares, the "Escrow Funds"), which are to be
deposited in escrow (the "Escrow Account") and applied by the Escrow Agent in
accordance with the provisions herein;
WHEREAS, the parties desire to set forth in this Escrow Agreement the
terms and conditions pursuant to which the Escrow Funds will be deposited, held,
and disbursed; and
WHEREAS, MTH and Limited desire to secure the services of the Escrow
Agent, and the Escrow Agent is willing to provide such services, pursuant to the
terms and conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINED TERMS.
As used in this Escrow Agreement, the following terms have the
respective meanings set forth below.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. 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, including the ability
to elect the members of the board of directors or other governing body of a
Person, and the terms "controlled" and "controlling" have correlative meanings.
"Business Day" means a day on which national banks are open for
business in New York, New York and Wilmington, Delaware.
"Closing" means the closing of the transactions contemplated by the
Purchase Agreement.
"Calculation Date SAVVIS Stock Fair Market Value" means $706.26.
"Closing Date" means June 3, 2005.
"Person" means an individual, partnership, corporation, limited
liability company, joint stock company, firm, entity, unincorporated
organization or association, trust or joint venture, or a governmental
authority.
"SAVVIS" means SAVVIS Communications Corporation.
"SAVVIS Escrow Shares" means 21,239 shares of Series A Convertible
Preferred Stock of SAVVIS; provided, that in the event of any merger,
consolidation, reorganization, recapitalization, dividend (including all
paid-in-kind dividends), distribution, stock split, split-up, split-off,
spin-off, combination of shares, exchange of shares or other similar event, or
in the event such shares are converted into common stock or other securities of
SAVVIS or any other entity, "SAVVIS Escrow Shares" shall mean or include, as
appropriate, such securities, cash and/or other property received in respect of
21,239 shares of Series A Convertible Preferred Stock of SAVVIS after such event
or conversion, and this adjustment shall be made successively each time any such
event shall occur (whether before or after any conversion of such shares). In
the event of any such event or conversion, reference to a single SAVVIS Escrow
Share shall be deemed to refer to or include, as appropriate, such other
property received in respect of a single share of Series A Convertible Preferred
Stock of SAVVIS.
"SAVVIS Stock Fair Market Value" means, in respect of each SAVVIS
Escrow Share as of any date, the product of (a) the number of shares of common
stock of SAVVIS into which it is then convertible and (b) 70% (subject to change
as provided below, the "Discount") of the average of the closing prices of such
common stock for the 20 trading days ending with and including the trading day
immediately preceding such date if such common stock is readily tradeable on a
national securities exchange, the National Association of Securities Dealers
Automated Quotation System or other national market system; provided, however,
that if (i) such common stock is not readily tradeable as set forth above, or
any of the events set forth in the proviso of the definition of "SAVVIS Escrow
Shares" shall have occurred and the value of the SAVVIS Escrow Shares shall not
be readily ascertainable on a similar basis, or (ii) Reuters and MTH mutually
agree at any time prior to the Closing to change the Discount or what
constitutes "SAVVIS Stock Fair Market Value", Reuters and MTH shall determine in
good faith the "Discount" or the "SAVVIS Stock Fair Market Value", in any case,
based upon valuations performed by their respective financial advisors;
provided, further, that in the event Reuters and MTH fail or are unable to agree
on such matters within a reasonable period of time not to exceed thirty (30)
2
days, then Reuters and MTH shall jointly select an independent, nationally
recognized investment bank to determine the "Discount" or "SAVVIS Stock Fair
Market Value", as the case may be, and the determination of such investment bank
shall be final and binding upon the parties hereto.
"Value of the Escrow Funds" means, as of any date, the sum of (i) the
fair market value of the cash, securities and other property (other than the
SAVVIS Escrow Shares) then held in the Escrow Account as determined by the
Escrow Agent in accordance with its customary practices and (ii) the product of
the Calculation Date SAVVIS Stock Fair Market Value times the number of SAVVIS
Escrow Shares then held in the Escrow Account or, if such shares are no longer
Series A Convertible Preferred Stock of SAVVIS but other property, cash or
securities as contemplated in the definition of "SAVVIS Escrow Shares", then the
number of SAVVIS Escrow Shares shall be deemed to equal for purposes of this
definition such number of Series A Convertible Preferred Stock of SAVVIS that
were exchanged or converted into such other property, cash or securities.
2. APPOINTMENT OF ESCROW AGENT; RESIGNATION AND SUCCESSOR.
2.1 Appointment of Escrow Agent. MTH and Limited hereby appoint the
Escrow Agent as, and the Escrow Agent hereby accepts its appointment and
designation as, Escrow Agent pursuant to the terms and conditions of this Escrow
Agreement.
2.2 Resignation of Escrow Agent; Appointment of Successor. The Escrow
Agent may resign at any time by giving at least sixty (60) days' prior written
notice of resignation to MTH and Limited, such resignation to be effective on
the date specified in such notice, whereupon the Escrow Agent will be discharged
of and from any and all further obligations arising in connection with this
Escrow Agreement. Upon receipt of such notice, MTH and Limited shall appoint a
bank or trust company as successor Escrow Agent by a written instrument executed
by MTH and Limited delivered to the resigning Escrow Agent. The successor Escrow
Agent shall execute and deliver to the parties to this Escrow Agreement an
instrument accepting such appointment and shall succeed to all of the rights and
obligations of the resigning Escrow Agent as of the effective date of the
resignation as if originally named in this Escrow Agreement. Upon assignment of
this Escrow Agreement, the resigning Escrow Agent shall duly transfer and
deliver to the successor Escrow Agent the Escrow Account at the time held by the
resigning Escrow Agent; provided, that, in the event MTH and Limited do not
select a successor Escrow Agent within such sixty (60) day period, the Escrow
Agent may resign, in which case it shall deposit all property and monies held
hereunder into the registry of any court of competent jurisdiction, with notice
to the other parties hereto and shall thereafter be absolved from any and all
liability in connection with the exercise of its powers and duties as Escrow
Agent hereunder, except for liability arising in connection with its gross
negligence, willful misconduct or bad faith.
3
3. ESTABLISHMENT OF ESCROW.
3.1 Escrow Account.
(a) At the Closing, Reuters shall deposit with the Escrow Agent, in
accordance with Section 2.3.10 of the Purchase Agreement, an amount in cash
equal to $39,522,385, and the Sellers shall deposit with the Escrow Agent, in
accordance with Section 2.3.12 of the Purchase Agreement, the SAVVIS Escrow
Shares. MTH shall execute and deliver to the Escrow Agent, promptly following
the deposit of the SAVVIS Escrow Shares with the Escrow Agent, one or more stock
powers duly executed in blank by MTH, as the Escrow Agent shall request in
writing, with respect to such SAVVIS Escrow Shares. The Escrow Agent shall act
as Escrow Agent and hold, safeguard and disburse the Escrow Funds pursuant to
the terms and conditions of this Escrow Agreement. The Escrow Funds shall not be
subject to any lien or attachment of any creditor of any party to this Escrow
Agreement or of any Seller or Purchaser, and will be used solely for the
purposes and subject to the conditions set forth in this Escrow Agreement.
(b) At all times while any SAVVIS Escrow Shares remain in the Escrow
Account, the Sellers shall be treated as the owner of such SAVVIS Escrow Shares
for all tax purposes and shall pay in a timely fashion all taxes imposed in
respect of the SAVVIS Escrow Shares. The Sellers shall at all times retain full
voting authority with respect to all SAVVIS Escrow Shares in the Escrow Funds.
In the event SAVVIS Escrow Shares are to be converted or exchanged into other
property, cash or securities as contemplated in the definition "SAVVIS Escrow
Shares", the Escrow Agent shall effect such conversion or exchange at the
direction of MTH, and MTH shall direct that such other property, cash or
securities be delivered to the Escrow Agent hereunder as SAVVIS Escrow Shares.
If the Escrow Agent should receive any cash with respect to the SAVVIS Escrow
Shares, the Escrow Agent shall invest, reinvest and/or deposit such cash in
accordance with Section 3.2.
(c) MTH shall have the right and option (the "Cash Substitution
Option"), exercisable as provided in this Section 3.1(c), to at any time cause
the Escrow Agent to assign, transfer and deliver to MTH any or all of the SAVVIS
Escrow Shares (together with stock powers executed in blank relating thereto)
then held in the Escrow Account by depositing with the Escrow Agent, in
substitution therefor, an amount in cash equal to the product of the number of
SAVVIS Escrow Shares to be replaced times the lesser of (a) 130% of the
Calculation Date SAVVIS Stock Fair Market Value and (b) the SAVVIS Stock Fair
Market Value on the date of the Cash Substitution Notice (as defined below). The
Cash Substitution Option shall be exercisable by MTH providing a written notice
of exercise (the "Cash Substitution Notice") to the Escrow Agent and Limited,
which Cash Substitution Notice shall (A) make specific reference to this Section
3.1(c), (B) indicate the SAVVIS Stock Fair Market Value as of the date of the
Cash Substitution Notice, (C) indicate how such value was computed in accordance
with the definition of SAVVIS Stock Fair Market Value, (D) indicate the
aggregate amount of cash to be substituted for the SAVVIS Escrow Shares to be
replaced in accordance with this Section 3.1(c), (E) indicate the precise nature
and amount of the property and/or funds then comprising the SAVVIS Escrow Shares
to be released from the Escrow Account and (F) include a certification of an
officer of MTH that neither it nor any of its affiliates is in possession of
material non-public information with respect to SAVVIS. Unless Limited notifies
4
MTH and the Escrow Agent in writing of any objection to any of the matters
referred to in the Cash Substitution Notice, which objection notice shall
include reasonable detail of the basis for any such objection, within five (5)
Business Days after the date of such notice, the Escrow Agent shall deliver the
SAVVIS Escrow Shares to be replaced, together with the stock powers related
thereto executed in blank, to MTH against receipt of immediately available funds
in the amount set forth in such notice. In the event that Limited objects to any
of the matters set forth in the Cash Substitution Notice, Limited and MTH shall
in good faith seek to resolve such matter or matters (with any issue with
respect to determination of SAVVIS Stock Fair Market Value to be resolved as
provided in the definition thereof) and, promptly following such resolution,
Limited and MTH shall provide joint written instructions to the Escrow Agent
with respect to the delivery of the SAVVIS Escrow Shares to be replaced in
exchange for an amount of immediately available funds based upon such
resolution.
3.2 Investment of Escrow Account. Upon the written direction of MTH
and Limited, the Escrow Agent shall place any funds in the Escrow Account only
into Permitted Investments. For the purposes hereof, "Permitted Investments"
shall mean (i) obligations of or guaranteed by the United States of America or
any agency thereof, either outright or in connection with repurchase agreements
covering such obligations, (ii) obligations of or guaranteed by any state or
political subdivision of the United States of America with a maturity six months
or less, (iii) interest bearing certificates of deposit or bankers' acceptances
issued by any other national or state-chartered bank having capital and surplus
of at least $1,000,000,000 with an investment term of six months or less, (iv)
commercial paper with a maturity of not more than thirty days rated at least P-1
by Moody's Investor Service, Inc. and A-1 by the Standard & Poor's division of
the McGraw Hill Companies, Inc, and (v) money market funds. The Escrow Agent may
liquidate in accordance with its customary procedures any portion of the Escrow
Account invested in a Permitted Investment to provide for payments required to
be made under this Escrow Agreement. For tax purposes, all interest and other
income earned on the Escrow Funds will be income of the Sellers, and all parties
hereto will file all tax returns consistent with such treatment. MTH, on behalf
of the Sellers, agrees to indemnify and hold the Escrow Agent harmless from and
against all such taxes. It is understood that the Escrow Agent will be
responsible for income reporting only with respect to income earned on
investment of Escrow Funds and is not responsible for any other reporting.
4. RELEASE FROM ESCROW.
4.1 Distributions from Escrow Account Pursuant to Section 2.5 of the
Purchase Agreement.
(a) Not later than two (2) Business Days after the delivery to the
Escrow Agent of joint written instructions signed by MTH and Limited specifying
the amount, if any, to which the Purchasers and/or MTH, on behalf of the
Sellers, are entitled from the Escrow Funds pursuant to Section 2.5.2 of the
Purchase Agreement, the Escrow Agent shall disburse to Limited, on behalf of the
Purchasers, and/or MTH, on behalf of the Sellers, from the Escrow Account such
portion(s) of the Escrow Funds as may be necessary to pay such specified
amounts.
5
(b) Not later than two (2) Business Days after the delivery to the
Escrow Agent of joint written instructions signed by MTH and Limited specifying
the amounts, if any, to be paid to the independent accounting firm, if any,
engaged pursuant to Section 2.5.3.3 of the Purchase Agreement, the Escrow Agent
shall disburse to the specified independent accounting firm from the Escrow
Account such portion of the Escrow Funds as may be necessary to pay such
specified amounts.
4.2 Distributions from Escrow Account Pursuant to Article VI and IX
of the Purchase Agreement.
(a) From time to time prior to the second anniversary of the Closing
Date, the Purchasers may deliver to MTH and the Escrow Agent a written notice (a
"Claim Notice") requesting distribution to Limited, on behalf of the Purchasers,
of a specified portion of the Escrow Funds in full or partial payment of the
indemnification obligations of one or more of the Sellers under the Purchase
Agreement (subject to the limitations therein), which notice shall (i) identify
in reasonable detail the facts and circumstances with respect to the subject
matter of such claim and associated damages and the section of the Purchase
Agreement under which such indemnification is sought and the amount and method
for computing the amount of damages and (ii) shall be accompanied by a delivery
receipt or other appropriate proof of delivery to MTH of such Claim Notice. If
the Escrow Agent has not received a written objection to a Claim Notice within
forty-five (45) days following the date of the Escrow Agent's receipt of such
Claim Notice, MTH shall be deemed to have irrevocably waived the right to object
or otherwise challenge the claim referred to in such Claim Notice without
prejudice to MTH's right to challenge any future claim and the Escrow Agent
shall pay to Limited, on behalf of the Purchasers, the amount specified in the
Claim Notice on the forty-sixth (46th) day following the receipt of such Claim
Notice (or if the forty-sixth (46th) day is not a Business Day, then on the
first Business Day following the forty-sixth (46th) day).
(b) If the Escrow Agent shall have received a written objection from
MTH to a claim referred to in a Claim Notice within forty-five (45) days
following the date of the Escrow Agent's receipt of such Claim Notice, the
Escrow Agent shall not make the payment of the amount specified in the Claim
Notice to Limited pursuant to Section 4.2(a) of this Escrow Agreement, but shall
instead withhold from the amount otherwise distributable hereunder an amount of
the Escrow Funds sufficient to satisfy the claim to which objection has been
made until it has received either (A) joint written instructions signed by MTH
and Limited as to the disposition of the portion of the Escrow Funds in
question, or (B) an order of a court of competent jurisdiction that is final and
not subject to further court proceedings or appeal. Any such court order shall
be accompanied by a legal opinion by counsel for the presenting party reasonably
satisfactory to the Escrow Agent to the effect that the order is final and
non-appealable. Upon receipt of any such written instructions or order, the
Escrow Agent shall, subject to the terms hereof, distribute such Escrow Funds in
accordance therewith. If an objection of MTH to payment of a claim referred to
in a Claim Notice shall prevent timely payment to Limited, on behalf of the
Purchasers, of any amount which is ultimately determined to be distributable in
satisfaction of such claim, the Purchasers shall be entitled to all income
received on such amount by its investment hereunder from and after the
forty-sixth (46th) day following the Escrow Agent's receipt of the applicable
Claim Notice until distribution of such amount to Limited, on behalf of the
6
Purchasers, in payment thereof, and the determination by the Escrow Agent of
such interest amount to which Limited, on behalf of the Purchasers, is entitled
shall be binding on both MTH and the Purchasers. The amount of such interest
shall be paid to Limited, on behalf of the Purchasers, concurrently with the
distribution of the portion of the Escrow Funds to satisfy such Claim.
4.3 Other Distributions from Escrow Account.
(a) Not later than two (2) Business Days after delivery to the Escrow
Agent of joint written instructions signed by MTH and Limited specifying the
amounts, if any, to which Limited, on behalf of the Purchasers, and/or MTH, on
behalf of the Sellers, are entitled from the Escrow Funds pursuant to Section
6.32.2 of the Purchase Agreement, the Escrow Agent shall disburse to Limited, on
behalf of the Purchasers, and/or MTH, on behalf of the Sellers, from the Escrow
Account such portion(s) of the Escrow Funds as may be necessary to pay such
specified amounts.
(b) Promptly following the first anniversary of the Closing Date (the
"First Anniversary Date"), the Escrow Agent shall release to MTH, or its
representative, a portion of the Escrow Funds equal to the amount, if any, by
which the Value of the Escrow Funds on the First Anniversary Date exceeds the
sum of (A) $33,750,000, together with any income received thereon by its
investment hereunder to the First Anniversary Date, and (B) the aggregate of the
amount of the claims set forth in Claim Notices that have not been paid or
otherwise resolved as contemplated in Section 4.2 of this Escrow Agreement,
together with any income received on such aggregate amount by its investment
hereunder to the First Anniversary Date.
(c) Promptly following the second anniversary of the Closing Date
(the "Second Anniversary Date"), the Escrow Agent shall distribute the Escrow
Funds, in accordance with the written instructions of MTH, or its
representative; provided, however, that in the event that, on or prior to the
Second Anniversary Date, Limited delivers any Claim Notices and the claims
related thereto are unresolved as of the Second Anniversary Date, the Escrow
Agent shall not distribute and will continue to hold pursuant to Section 4.2
hereof a portion of the Escrow Funds having a value equal to the damages sought
with respect to unresolved claims under such Claim Notices. The Escrow Agent
shall not make any payment from the Escrow Funds it continues to hold after the
distribution from the Escrow Funds pursuant to the foregoing sentence until it
has received either (A) joint written instructions signed by MTH and Limited as
to the disposition of the portion of the Escrow Funds in question, or (B) an
order of a court of competent jurisdiction accompanied by an opinion of counsel
to the effect that such order is final and not subject to further court
proceedings or appeal.
(d) On January 15th of each year after the Closing Date until the
termination of this Escrow Agreement, the Escrow Agent shall distribute to MTH,
on behalf of the Sellers, an amount equal to 40% of the income from the Escrow
Funds allocated to the Sellers for the prior calendar year.
4.4 Form of Disbursements. Except as may be set forth in joint
written instructions signed by MTH and Limited, (i) all disbursements to be made
to Limited, on behalf of the Purchasers, pursuant to this Escrow Agreement shall
7
be made in cash unless and until all funds and property (other than the SAVVIS
Escrow Shares) held in the Escrow Account have been exhausted and, thereafter,
such disbursements shall be made in the form of SAVVIS Escrow Shares valued at
the Calculation Date SAVVIS Stock Fair Market Value and (ii) all disbursements
and releases to be made to MTH, or its representative, pursuant to this Escrow
Agreement shall be made in SAVVIS Escrow Shares valued at the Calculation Date
SAVVIS Stock Fair Market Value unless and until all SAVVIS Escrow Shares
contained in the Escrow Account have been exhausted and, thereafter, such
disbursements and releases shall be made in the form of cash.
5. THE ESCROW AGENT.
(a) The duties and responsibilities of the Escrow Agent will be
limited to those expressly set forth in this Escrow Agreement and it will not be
subject to, nor obligated to recognize, any provision of any other agreement
between, or direction or instruction of, any or all of the parties to this
Escrow Agreement.
(b) If any Escrow Funds are at any time attached, garnished or levied
upon under any court order or in case the payment of any such Escrow Funds will
be stayed or enjoined by any court order, or in case any order, judgment or
decree will be made or entered by any court affecting such Escrow Funds or any
part thereof, then and in any of such events, the Escrow Agent is authorized, in
its sole discretion, to rely upon and comply with any such order, writ, judgment
or decree which it is advised by legal counsel is binding upon it. If the Escrow
Agent complies with any such order, writ, judgment or decree, it will not be
liable to any of the parties to this Escrow Agreement or to any other Person by
reason of such compliance even though such order, writ, judgment or decree may
be subsequently reversed, modified, annulled, set aside or vacated.
(c) The Escrow Agent will not be liable for any act taken or omitted
under this Escrow Agreement, except for liability arising in connection with its
gross negligence, willful misconduct or bad faith. The Escrow Agent shall not
incur any liability for failure to perform any act or to fulfill any duty,
obligation or responsibility hereunder by reason of any occurrence beyond the
control of the Escrow Agent (including, but not limited to, any act or provision
of any present or future law or regulation or governmental authority, any act of
God or war, or the unavailability of the Federal Reserve Bank wire or telex or
other wire or communication facility). The Escrow Agent will also be fully
protected in relying upon any written notice, demand, certificate or document
that it in good faith believes to be genuine (including facsimiles thereof).
(d) MTH and Limited hereby jointly and severally agree to indemnify
the Escrow Agent and each of its officers, directors, agents and employees from
and against, and to hold the Escrow Agent and such persons harmless against, any
loss, liability, damage or reasonable expense (including reasonable attorneys'
fees) incurred without gross negligence, willful misconduct or bad faith on the
part of the Escrow Agent, arising, directly or indirectly, out of or in
connection with the Escrow Agent's entering into this Escrow Agreement and
carrying out the Escrow Agent's duties hereunder, including costs and reasonable
expenses of successfully defending the Escrow Agent against any claim of
8
liability with respect thereto. The Escrow Agent may consult with counsel of its
own choice and will have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of such counsel. The provisions of this Section 5(d) shall survive
termination of this Escrow Agreement and/or the resignation or removal of the
Escrow Agent.
(e) The Escrow Agent will (a) be paid a fee for its services under
this Escrow Agreement as provided by Exhibit A and (b) be entitled to
reimbursement for reasonable expenses (including the reasonable fees and
disbursements of its counsel) actually incurred by the Escrow Agent in
connection with its duties under this Escrow Agreement (such fees and expenses
being hereinafter referred to collectively as the "Escrow Agent Fees and
Expenses"). All Escrow Agent Fees and Expenses will be paid first out of
interest earned and accrued on the Escrow Funds. The Escrow Agent will not be
entitled to withdraw any amounts from the interest earned and accrued on the
Escrow Funds for reimbursement of Escrow Agent Fees and Expenses until the
expiration of five (5) Business Days following delivery of notice of the amount
of such Escrow Agent Fees and Expenses to MTH and Limited.
6. MISCELLANEOUS.
(a) Notices. All notices, requests, consents or other communications
required or permitted under this Escrow Agreement will be in writing and will be
deemed to have been duly given or delivered by any party (i) when received by
such party if delivered by hand, (ii) upon confirmation when delivered by
facsimile, (iii) within one (1) day after being sent by recognized overnight
delivery service, or (iv) within three (3) Business Days after being mailed by
first-class mail, postage prepaid, and in each case addressed as follows
(provided, however, that notice to the Escrow Agent shall be deemed to have been
duly given only upon the Escrow Agent's receipt thereof, and that the original
of any written notice, request, consent or other communication delivered by
facsimile to the Escrow Agent shall be delivered to the Escrow Agent no later
than five (5) Business Days after the delivery of the facsimile thereof):
(i) if to MTH, to:
Moneyline Telerate Holdings, Inc.
233 Broadway
New York, NY 10279
Facsimile: (212) 553-9698
Attention: Chief Legal Officer
With a required copy to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Facsimile: (212) 751-4864
Attention: R. Ronald Hopkinson, Esq.
David S. Allinson, Esq.
9
and
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Facsimile: (212) 309-6001
Attention: Ira White, Esq.
(ii) if to Reuters Limited, to
Reuters Limited
85 Fleet Street
London, EC4P 4AJ United Kingdom
Facsimile: 011 44 20 7542 6848
Attention: Group General Counsel
With a required copy to:
Reuters America LLC
3 Times Square
New York, NY 10036
Facsimile: (646) 223-4250
Attention: General Counsel
and
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Facsimile: (212) 310-8007
Attention: David Zeltner, Esq.
(iii) if to the Escrow Agent, to:
The Bank of New York
Insurance Trust & Escrow Unit
101 Barclay Street, 8W
New York, NY 10286
Facsimile: (212) 815-5875/5877
Attention: Thomas Hacker, Vice President
Any party by written notice to the other parties pursuant to this Section 6.1
may change the address or the persons to whom notices or copies thereof will be
directed.
10
(a) Assignment; MTH Representative. This Escrow Agreement and the
rights and duties hereunder will be binding upon and inure to the benefit of the
parties hereto and the successors and assigns of each of the parties to this
Escrow Agreement. No rights, obligations or liabilities hereunder will be
assignable by the Escrow Agent without the prior written consent of MTH and
Limited. MTH shall have the right to appoint a person, with full power of
substitution, as the representative, agent and attorney in fact of and for MTH
in connection with any matters relating to this Agreement, including, without
limitation, with respect to approvals, waivers, consents, instructions and the
enforcement of rights hereunder. In the event of any such appointment, MTH shall
provide written notice to the other parties of the identity and address of such
representative.
(b) Amendment. This Escrow Agreement may be amended or modified only
by an instrument in writing duly executed by each of the parties hereto.
(c) Waivers. Any waiver by any party hereto of any breach of or
failure to comply with any provision of this Escrow Agreement by any other party
hereto will be in writing and will not be construed as, or constitute, a
continuing waiver of such provision, or a waiver of any other breach of, or
failure to comply with, any other provision of this Escrow Agreement.
(d) Construction. This Escrow Agreement will be governed by the laws
of the State of New York as applied to contracts made and performed in such
state. The headings in this Escrow Agreement are solely for convenience of
reference and will not be given any effect in the construction or interpretation
of this Escrow Agreement. Unless otherwise stated, references to Sections and
Exhibits are references to Sections and Exhibits of this Escrow Agreement.
(e) Third Parties. Nothing expressed or implied in this Escrow
Agreement is intended, or will be construed, to confer upon or give any Person
other than the parties hereto any rights or remedies under, or by reason of,
this Escrow Agreement.
(f) Termination. This Escrow Agreement will terminate at the time of
the final distribution by the Escrow Agent of all Escrow Funds in accordance
with the provisions of this Escrow Agreement.
(g) Counterparts. This Escrow Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of which
together will constitute a single instrument.
(h) Severability. If any provision of this Escrow Agreement as
applied to any part or to any circumstance will be held invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions of this Escrow Agreement and the application of such provision to any
other part or to any other circumstance will not be affected or impaired
thereby.
(i) Jury Trial; Counterclaims; Immunity. Each of MTH and Reuters
hereby waives the right to trial by jury. To the extent that in any jurisdiction
MTH or Reuters may be entitled to claim, for itself or its assets, immunity from
suit, execution, attachment (whether before or after judgment) or other legal
11
process, each hereby irrevocably agrees not to claim, and hereby waives, such
immunity.
(j) General. Unless the context otherwise requires, the singular
shall include the plural and vice-versa, each pronoun in any gender shall
include all other genders, and the term "or" shall mean "and/or". The terms and
provisions of this Escrow Agreement constitute the entire agreement among the
parties hereto in respect of the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
12
IN WITNESS WHEREOF, the parties hereto have caused this
Escrow Agreement to be executed by their duly authorized
officers as of the day and year first above written.
ESCROW AGENT
By: /s/ Thomas Hacker
--------------------------------------
Name: Thomas Hacker
Title: Vice-President
MONEYLINE TELERATE HOLDINGS, INC.
By: /s/ Bernard F. Battista
--------------------------------------
Name: Bernard F. Battista
Title: President
REUTERS LIMITED
By: /s/ Rosemary Martin
--------------------------------------
Name: Rosemary Martin
Title: Company Secretary and Director
Signature Page to Escrow Agreement
Exhibit 26
POWER OF ATTORNEY
DATE: MARCH 15, 2004
THIS POWER OF ATTORNEY given by REUTERS GROUP PLC ("the Company"), whose
registered office is 85 Fleet Street, London, EC4P 4AJ, England WITNESSES as
follows:
1. APPOINTMENT
The Company appoints NANCY C GARDNER, ERIC B LINT, STEPHEN P LEHMAN AND NENETTE
P BEMBO, of The Reuters Building, 3 Times Square, New York, New York 10036 USA
(hereinafter referred to individually and jointly as "the Attorney") to be its
Attorney with authority to do on its behalf the acts and things specified in
clause 2.
2. AUTHORITY
The Attorney has authority in the name and on behalf of the Company and on such
terms and conditions as may seem expedient to do the acts and things specified
below, within the policies and guidelines established by the Company:
(a) to sign and file from time to time Form 144 pursuant to Rule 144
promulgated under the Securities Act of 1933 and Forms 3, 4 and 5
under Section 16 of the Securities Exchange Act of 1934 (the "Act")
and Schedules 13D and 13G under Sections 13(d) and 13(g) of the Act,
each regarding SAVVIS COMMUNICATIONS CORPORATION and required to be
filed by the Company with the United States Securities and Exchange
Commission; and
(b) to do appropriate acts and things to give effect to or to further the
actions contemplated by or referred to in paragraph (a) above.
3. INDEMNITY
The Company agrees to ratify whatever the Attorney shall lawfully do or cause to
be done by virtue of this power of attorney and to indemnify the Attorney
against all expenses, losses and liabilities incurred by the Attorney when
acting in pursuance of this power of attorney, except such as arise in
consequence of his negligence, willful default or bad faith.
4. MISCELLANEOUS
This power of attorney shall:
(i) have effect from the date hereof which is (or is deemed to
be) the effective date of entry into force of it and the
Company agrees to ratify and confirm all and any acts and
things lawfully done by the Attorney on behalf of the
Company as from such effective date;
(ii) be binding and conclusive in favour of all third parties
who shall not have received notice of its revocation;
(iii) lapse automatically on the earlier of (a) the date on
which the Attorney ceases to be employed by the Company,
(b) 31 December 2005 and (c) notification in writing by
the Company to the Attorney that this power of attorney is
revoked;
(iv) not be changed orally; and
(v) be construed and interpreted according to the law of
England and Wales.
IN WITNESS WHEREOF the Company has caused its Common Seal to be affixed the 15th
day of March 2004.
The COMMON SEAL )
of REUTERS GROUP PLC )
was hereunto affixed )
in the presence of: )
/s/ Tom Glocer
- -------------------------
Director
/s/ David Grigson
- -------------------------
Director/Secretary
Exhibit 27
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is given by way of deed by REUTERS SA (the "COMPANY"),
whose registered office is at route de Thonon 153, 1245 Collonge - Bellerive GE
WITNESSES as follows:
1. APPOINTMENT
The Company jointly and severally appoints Claire Chapman, currently of Reuters
Limited, 85 Fleet Street, London EC4P 4AJ, England and Eric Lint, Stephen Lehman
and Jenni Neumann, currently of Reuters America LLC, 3 Times Square, New York,
NY 10036, USA, (referred to, jointly and severally, as the "Attorney"), to be
its Attorney with authority to do on its behalf the acts and things specified in
clause 2.
2. AUTHORITY
The Attorney has authority in the name and on behalf of the Company and on such
terms and conditions as may seem expedient to do the acts and things specified
below in connection with the Company's acquisition of the assets of Moneyline
Telerate Holdings Inc., and its subsidiaries, a corporation organised under the
laws of the State of Delaware:
(a) to approve, execute as a deed or sign under hand, complete and
deliver on behalf of the Company and to vary, amend, delete from, add
to, confirm or cancel and to certify any copies or duplications of
any agreements relating to the acquisition, including the Bill of
Sale, Assignment and Assumption Agreement, together with all such
other deeds, instruments, agreements, transfers, applications,
letters, certificates, consents, applications, advertisements,
announcements or any other documents whatsoever as in the Attorney's
opinion are necessary or desirable for effecting, advancing or
completing any of the purposes, functions or matters set out in or
arising from such documents, in each case on such terms and
conditions and subject to such contingencies as the Attorney thinks
fit;
(b) to issue instructions requiring the transfer of funds by or on behalf
of the Company as required or contemplated by any of the agreements
or documents referred to in clause 2(a) above, such instructions to
include the amount of funds to be transferred, the timing and means
of transfer, and the bank account(s) or other destination(s) to which
such funds are to be transferred; and
(c) to do appropriate acts and things to give effect to or to further the
actions contemplated by or referred to in paragraphs (a) and (b)
above.
3. INDEMNITY
The Company agrees to ratify whatever the Attorney shall lawfully do or cause to
be done by virtue of this power of attorney and to indemnify the Attorney
against all expenses, losses and liabilities incurred by the Attorney when
acting in pursuance of this power of attorney, except such as arise in
consequence of his negligence, wilful default or bad faith.
4. MISCELLANEOUS
This power of attorney shall:
(i) have effect from the date hereof which is (or is deemed to
be) the effective date of entry into force of it and the
Company agrees to ratify and confirm all and any acts and
things lawfully done by the Attorney on behalf of the
Company as from such effective date;
(ii) be binding and conclusive in favour of all third parties
who shall not have received notice of its revocation;
(iii) lapse automatically on the earlier of (a) the date on
which the Attorney ceases to be employed by Reuters Group
(as defined in clause 3); (b) revocation by written act of
the Company; or (c) 31st December 2005;
(iv) not be changed orally; and
(v) be construed and interpreted according to the laws of
Switzerland.
IN WITNESS WHEREOF the Company has duly executed this Power as a deed on the
27th day of May 2005.
EXECUTED as a DEED and )
DELIVERED by REUTERS SA )
acting by two Directors )
/s/ Christopher Hagman
- ----------------------------------
Director
/s/ John Reid-Dodick
- ----------------------------------
Director
