EXHIBIT 10.7
AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
This AMENDMENT NO. 1 to the Amended and Restated Investors' Rights
Agreement dated as of November 30, 1999 (the "Investors' Rights Agreement") and
the Amended and Restated Voting Agreement (the "Voting Agreement"), each dated
August 26, 1999, by and among Equinix, Inc., a Delaware corporation (the
"Company"), Xxxxxx X. Xxxxx, XX and Xxx X. Xxxxxxx (the "Common Holders") and
the investors listed on Schedule A thereto, each of which is herein referred to
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as an "Investor," is entered into by the Company, the Common Holders and the
Investors whose names are set forth on the signature pages hereto.
WITNESSETH:
WHEREAS, the parties hereto are parties to the Investors' Rights
Agreement and the Voting Agreement;
WHEREAS, the parties hereto desire to amend the Investors' Rights
Agreement and the Voting Agreement to clarify that the piggyback rights set
forth in the Investors' Rights Agreement and the termination of the Voting
Agreement are triggered by the filing of a registration statement solely related
to the Company's common stock and that the Board may approve the grant of
additional registration rights;
WHEREAS, the parties hereto for purposes of amending said agreements: (i)
with respect to the Investors' Rights Agreement, constitute the holders of a
majority of the Registrable Securities (as defined in the Investors' Rights
Agreement) and (ii) with respect to the Voting Agreement, constitute the holders
of a majority of the currently outstanding voting securities held by the Party
or Parties (as defined in the Voting Agreement) for whose benefit such term has
been included.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, intending to be
legally bound, agree as follows:
ARTICLE I
Amendment to the Investors' Rights Agreement
1. Section 1.3(a) is hereby deleted and replaced in its entirety, as
follows:
If (but without any obligation to do so) the Company
proposes to register (including for this purpose a
registration effected by the Company for stockholders other
than the Holders) any of its Common Stock under the
Act in connection with the public offering of such
securities (other than a registration relating solely to
the sale of securities to participants in a Company stock
plan, a registration relating to a corporate reorganization
or other transaction under Rule 145 of the Act, a
registration on any form that does not include
substantially the same information as would be required to
be included in a registration statement covering the sale
of the Registrable Securities, a registration in which the
only Common Stock being registered is Common Stock issuable
upon conversion of debt securities that are also being
registered, or a registration of debt securities relating
to a registered exchange offer), the Company shall, at such
time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given
within twenty (20) days after mailing of such notice by the
Company in accordance with Section 3.5, the Company shall,
subject to the provisions of Section 1.3(c), use all
reasonable best efforts to cause to be registered under the
Act all of the Registrable Securities that each such Holder
has requested to be registered.
2. Section 1.14 is hereby deleted and replaced in its
entirety, as follows:
Unless unanimously approved by the Board of Directors, from
and after the date of this Agreement, the Company shall
not, without the prior written consent of the Holders of a
majority of the Registrable Securities, enter into any
agreement with any holder or prospective holder of any
securities of the Company that would allow such holder or
prospective holder (a) to include such securities in any
registration filed under Section 1.3 hereof, unless under
the terms of such agreement, such holder or prospective
holder may include such securities in any such registration
only to the extent that the inclusion of such securities
will not reduce the amount of the Registrable Securities of
the Holders that are included or (b) to demand registration
of their securities.
ARTICLE II
Amendment to the Voting Agreement
1. Section 14 is hereby deleted and replaced in its entirety,
as follows:
Term. This Agreement shall terminate and be of no further
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force or effect upon (a) the consummation of the Company's
sale of its Common Stock pursuant to a registration
statement under the Securities Act of 1933, as amended
(other than a registration statement relating either to
sale of securities to employees of the Company pursuant to
its stock option, stock purchase or similar plan or a SEC
Rule 145 transaction), (b) the
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acquisition of the Company by another entity by means of
any transaction or series of related transactions
(including, without limitation, any reorganization, merger
or consolidation) that results in the transfer of fifty
percent (50%) or more of the outstanding voting power of
the Company or a sale of all or substantially all of the
assets of the Company, (c) such time as the Investors
(together with their respective affiliates and partners)
shall own less than twenty-five percent (25%) of the
outstanding voting Preferred Stock of the Company (as
adjusted for stock splits and other recapitalizations), (d)
August 26, 2009 or (e) the written consent of the holders
of a majority of the then outstanding Founders Shares and
the holders of a majority of the then outstanding Preferred
Shares.
Miscellaneous
1. Except as amended by this Amendment, all terms and provisions of the
Investors' Rights Agreement and the Voting Agreement continue in full force and
effect and unchanged and are hereby confirmed in all respects.
2. This Amendment may be signed in multiple counterparts, each of which
shall be an original, with the same effect as if the signatures were upon the
same instrument.
3
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Amendment to be duly executed by their respective officers on the date first
above written.
EQUINIX, INC.
By: /s/ Xxxxxx X. Xxxxx, XX
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Name: Xxxxxx X. Xxxxx, XX
Title: Chief Executive Officer
COMMON HOLDERS:
/s/ Xxxxxx X. Xxxxx, XX
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Name: Xxxxxx X. Xxxxx, XX
/s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
BENCHMARK CAPITAL PARTNERS II, L.P.
as nominee for
Benchmark Capital Partners, II, L.P.
Benchmark Founders Fund II, L.P.
Benchmark Founders Fund II-A, L.P.
Benchmark Members' Fund, L.P.
By: Benchmark Capital Management Co. II,
L.L.C., its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Managing Member
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
CISCO SYSTEMS, INC.
By: /s/ Xxxxxxxxxxxx Xxxxx
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Name: Xxxxxxxxxxxx Xxxxx
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Title: SVP, Business Development
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
XXXX AND XXXX XXXXXXXX
By: /s/ Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
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Name: ________________________________________
Title: _______________________________________
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
CARLYLE VENTURE PARTNERS, L.P.
By: TCG Ventures, Ltd., as the General Partner
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By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Attorney-in-Fact
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
C/S VENTURE INVESTORS, L.P.
By: TCG Ventures, Ltd., as the General Partner
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By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Attorney-in-Fact
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
CARLYLE VENTURE COINVESTMENT, L.L.C.
By: TCG Ventures, L.L.C., as the Manager
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By: TCG Holdings, L.L.C., as the Manager
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By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Attorney-in-Fact
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
Carlyle U.S. Venture Partners, L.P
By: TCG Ventures, L.L.C., as the General Partner
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By: TCG Holdings, L.L.C., as the Manager
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By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
/s/ Xxxxxxxx X. Xxxxxxxx
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By: Cotsakos Ventures, LLC
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Name: Xxxxxxxx X. Xxxxxxxx
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Title: Manager
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
DELL USA L.P.
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By: /s/ Xxxx X. Xxxxx
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
Xxxx Xxxxxxx
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By: /s/ Xxxx Xxxxxxx
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Name: _______________________________________
Title: _______________________________________
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
______________________________________________
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Consultant
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AND AMENDED AND RESTATED VOTING AGREEMENT
Enron Communications, Inc.
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By: [SIGNATURE ILLEGIBLE]
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Name:____________________
Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
G & H Partners
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By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Partner
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
/s/ Xxxxxxx Xxxxxxx
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By:______________________
Name: Xxxxxxx Xxxxxxx
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Title:___________________
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
___________________________
By:/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title:_____________________
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND
AMENDED AND RESTATED VOTING AGREEMENT
INVESTOR:
/s/ Xxxx Xxxxx
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By:________________________
Name: Xxxx Xxxxx
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Title:_____________________
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc
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By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
North Point
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By: /s/ Xxxxxxx Malaga
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Name: Xxxxxxx Malaga
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Title: Chairman & CEO
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
Reuters Holdings Switzerland S.A.
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By: /s/ Thierry Mabille de Poncheville
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Name: Thierry Mabille de Poncheville
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Title:________________________________
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
Stanford University
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By: /s/ Xxxxx Xxxxxx
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Name:____________________
Title: Gift Administrator
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT AND AMENDED
AND RESTATED VOTING AGREEMENT
INVESTOR:
__________________________
By: /s/ Xxxxxxx X. Xx
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Name: Xxxxxxx X. Xx
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Title:____________________
