Exhibit 4.4
F IFTH A MENDED AND R ESTATED I NVESTORS A GREEMENT
A MONG
S WITCH & D ATA F ACILITIES C OMPANY ,
I NC .,
S WITCH AND & D ATA ,
I NC .,
A ND
C ERTAIN S ECURITYHOLDERS T HEREOF
F EBRUARY 13,
2007
FIFTH AMENDED AND
RESTATED
INVESTORS
AGREEMENT
This FIFTH
AMENDED AND RESTATED INVESTORS AGREEMENT (as amended and
restated from time to time, this “Agreement) is entered into
as of this 13 th
day of
February, 2007 by and among Switch & Data Facilities
Company, Inc., a Delaware corporation (the
“Corporation“), Switch and Data, Inc., a Delaware
corporation (the “Successor” ) and the
Securityholders and will be effective immediately prior to the
consummation of the Merger.
RECITALS
WHEREAS , the Successor filed a registration statement
on Form S-1 (file number 333-137607, as it may be amended from time
to time, the “ Initial Registration Statement
“) with the SEC to effect an initial public offering of
Common Stock (the “ Initial IPO
“);
WHEREAS , in order to facilitate the Initial IPO, the
Successor and the Corporation agreed to affect a merger (the
“ Merger “), whereby the Corporation will
merge with and into the Successor, with the Successor being the
surviving corporation;
WHEREAS , the Corporation and certain of the
Securityholders are a party to that certain Fourth Amended and
Restated Investors Agreement, as amended (the “ Prior
Agreement “), which established certain rights and
obligations with respect to the ownership, voting, registration
rights, and transfer of capital stock of the Corporation and
certain other matters related thereto;
WHEREAS , in connection with the Merger and in order to
facilitate the Initial IPO, a requisite percentage of the
Securityholders to the Prior Agreement have agreed to amend and
restate the Prior Agreement and in its entirety as set forth in
place, this Agreement; and
NOW, THEREFORE
, for and in consideration of the
premises and other mutual benefits, the sufficiency of which are
hereby acknowledged and confessed, the signatories hereto, being
the requisite percentage of the Securityholders to the Prior
Agreement that have the power to amend and restate the Prior
Agreement, agree as follows:
AGREEMENTS
ARTICLE 1
DEFINITIONS
1.1 Defined Terms; Glossary . In
addition to terms defined in the body of this Agreement,
capitalized terms used herein shall have the meanings given to them
in Exhibit A . The Glossary, which follows the Table of
Contents, sets forth the location in this Agreement of the
definition for each capitalized term used herein.
1.2 Construction . Unless the context
requires otherwise: (a) the gender (or lack of gender) of all
words used in this Agreement includes the masculine, feminine, and
neuter; (b) references to Articles and Sections refer to
articles and sections of this Agreement;
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(c) references to Exhibits and Schedules
are to exhibits and schedules attached to this Agreement, each of
which is made a part of this Agreement for all purposes;
(d) references to money refer to legal currency of the United
States of America; and (e) the word “including”
means “including without limitation.”
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 Representations and Warranties .
Each of the Securityholders (as to itself only) represents and
warrants to the Corporation, the Successor and the other
Securityholders that:
(a) such Person, if such Person is
an Entity, is duly organized, validly existing and in good standing
under the Laws of the jurisdiction of its organization;
(b) such Person has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder, and the execution, delivery, and performance
by such Person of this Agreement have been duly authorized by all
necessary action;
(c) this Agreement has been duly and
validly executed and delivered by such Person and constitutes the
binding obligation of such Person enforceable against such Person
in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy and other Laws of general application
relating to creditor’s rights or general principles of
equity;
(d) the execution, delivery and
performance by such Person of this Agreement will not, with or
without the giving of notice or the lapse of time, or both,
(i) violate any provision of Law to which such Person is
subject, (ii) violate any order, judgment or decree applicable
to such Person or (iii) conflict with, or result in a breach
or default under, any term or condition of its certificate of
incorporation or by-laws, certificate of limited partnership or
partnership agreement, certificate of formation or limited
liability company agreement, as applicable, or any agreement or
other instrument to which such Person is a party; and
(e) such Person understands that the
Registrable Securities shall, without any further action on the
part of the Corporation or such Person, be subject to the terms,
conditions and restrictions contained in this Agreement.
ARTICLE 3
REGISTRATION
RIGHTS
3.1 Registrations Rights.
(a) Initial Demand
Registrations . Each Securityholder that at the effective time
of this Agreement is a holder of Series D-1 Preferred Stock of the
Corporation and is set forth on Schedule I (each, a “
Demand Rights Holder “) may make a written
request for registration and the filing of a registration statement
(a “ Registration Statement “) under the
Securities Act of all or a portion of the Registrable Securities
owned by them (each, an “Initial Demand
Registration “); provided that Initial Demand
Registrations shall be granted on not more than four occasions, and
only after the date which is six months after the closing of the
Initial IPO. Following the Corporation’s receipt of such a
request, the Corporation shall give written notice of such request
to all of the Demand Rights Holders
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and such Demand Rights Holders shall have 10
Business Days to notify the Corporation of their desire to
participate in the registration. The Corporation shall include in
the registration in respect of which such notice has been given all
Registrable Securities with respect to which the Corporation has
received timely written requests from the Demand Rights Holders for
inclusion therein. Notwithstanding the foregoing, the Demand Rights
Holders acknowledge and agree that their rights to Initial Demand
Registrations set forth in this Section 3.1(a) will terminate
once the Corporation is eligible to register securities on Form S-3
(or any successor form) under the Securities Act.
(b) Subsequent Demand
Registrations . Following the Initial IPO and during such
period as the Corporation is subject to periodic reporting
requirements of Section 13 or 15(d) of the Exchange Act, the
Corporation shall use commercially reasonable efforts to qualify
and remain qualified to register securities on Form S-3 (or any
successor form) under the Securities Act. After the Corporation is
eligible to register securities on Form S-3 (or any successor
form), all Demand Rights Holders shall have unlimited rights to
request registrations with respect to their Registrable Securities
(the “Subsequent Demand Registrations “,
referred to collectively, with the Initial Demand Registrations, as
the “Demand Registrations “), including
registrations for the sale of such Registrable Securities on a
delayed or continuous basis pursuant to Rule 415 under the
Securities Act. Following the Corporation’s receipt of a
request for a Subsequent Demand Registration, the Corporation shall
give written notice of such request to all other Demand Rights
Holders and such other Demand Rights Holders shall have 10 Business
Days to notify the Corporation of their desire to participate in
the registration. The Corporation shall include in the registration
in respect of which notice has been given all Registrable
Securities with respect to which the Corporation has received
timely written requests from the Demand Rights Holders for
inclusion therein.
(c) Limitations on Demand
Registrations . Notwithstanding the foregoing, (i) in no
event shall the Corporation be required to file more than one
Registration Statement in any six-month period in response to the
exercise of Subsequent Demand Registrations initiated by the
request of one or more Demand Rights Holders, (ii) the
Corporation need not register any Registrable Securities pursuant
to a Demand Registration, unless the good faith estimated size of
the offering is (A) greater than $10 million with respect to
any Initial Demand Registration or (B) greater than
$2.5 million with respect to any Subsequent Demand
Registration and (iii) all parties granted registration rights
will be subject to the customary lock-up provisions set forth in
Section 3.5 below that would restrict the sales of Registrable
Securities during specified periods (including sales pursuant to
the exercise of demand rights).
(d) Effecting a Demand
Registration . Any request for a Demand Registration will
specify the aggregate number of Registrable Securities proposed to
be sold by the Demand Rights Holders exercising their respective
registration rights under Section 3.1(a) or
Section 3.1(b) (the “Requesting Holders
“) and will also specify the intended method of disposition
thereof (including whether such offering shall be a firm commitment
underwritten offering). A registration will not count as a Demand
Registration until it has become effective. Should a Demand
Registration not become effective due to the failure of a
Requesting Holder to perform its obligations under this Agreement
or, if an underwritten offering, the inability of the Requesting
Holders to reach agreement with the underwriters for the proposed
sale on price or other customary terms for such transaction, or in
the event the Requesting Holders withdraw or do not pursue the
request for the Demand Registration (in each of the foregoing
cases, provided that
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Investors Agreement
at such time the Corporation is in compliance in
all material respects with its obligations under this Agreement),
then, subject to Section 3.1(e), such Demand Registration
shall be deemed to have been effected ( provided that
(i) if the Demand Registration does not become effective
because an adverse change has occurred, or is reasonably likely to
occur, in (A) the condition (financial or otherwise),
business, assets or results of operations of the Corporation and
its Subsidiaries taken as a whole subsequent to the date of the
written request made by the Requesting Holders or (B) if it is
an underwritten offering, in the market conditions generally such
that the managing underwriter of such offering, determines in good
faith that an underwritten offering is not possible, (ii) if
the Corporation withdraws the Demand Registration for any reason or
preempts the request for the Demand Registration, (iii) if,
after the Demand Registration has become effective, an offering of
Registrable Securities pursuant to a registration is interfered
with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court or (iv) if the
Demand Registration is withdrawn at the request of the Requesting
Holders pursuant to Section 3.1(g) or Section 3.2(a)(i),
then the Demand Registration shall not be deemed to have been
effected and will not count as a Demand Registration).
(e) Withdrawal. If the
Requesting Holders withdraw or do not pursue a request for a Demand
Registration and, pursuant to Section 3.1(d) hereof, such
Demand Registration is deemed to have been effected, then the
Requesting Holders may reinstate such Demand Registration (such
that the withdrawal or failure to pursue a request will not count
as a Demand Registration hereunder) if the Requesting Holders
reimburse the Corporation for any and all Registration Expenses
incurred by the Corporation in connection with such request for a
Demand Registration that was withdrawn or not pursued.
(f) Preemption . The
Corporation will have the right to preempt any Demand Registration
with a primary registration by delivering written notice (within
seven Business Days after the Corporation has received a request
for such Demand Registration) of such intention to the Requesting
Holders indicating that the Corporation has identified a specific
business need and use for the proceeds of the sale of such
securities and had contemplated such sale of securities prior to
receiving the Requesting Holders’ notice, in which case the
Corporation shall use its commercially reasonable efforts to effect
a primary registration within 90 days of such notice. In the
ensuing primary registration, the Requesting Holders will have such
Piggyback Registration rights as are set forth in
Section 3.1(i) hereof. Upon the Corporation’s preemption
of a requested Demand Registration, such requested registration
will not count as a Demand Registration. If the Corporation
thereafter decides to abandon its intention to pursue such sale of
securities, it shall give notice thereof to any preempted
Requesting Holders within two Business Days following the
Corporation’s decision. The Corporation may exercise the
right to preempt a Demand Registration only once in any 360-day
period; provided , that during any 360-day period the
Corporation shall use its commercially reasonable efforts to permit
a period of at least 180 consecutive days during which the
Requesting Holders may effect a Demand Registration.
(g) Underwritten Offering .
Common Stock to be sold for the account of any Person (including
the Corporation) other than a Requesting Holder shall not be
included in a Demand Registration if the managing underwriter or
underwriters shall advise the Corporation and the Requesting Holder
in writing that the inclusion of such securities should be limited
due to market conditions.
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Company, Inc.
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Investors Agreement
Furthermore, if the managing underwriter or
underwriters shall advise the Corporation and the Requesting
Holders that even after exclusion of all securities of other
Persons (including the Corporation) pursuant to the immediately
preceding sentence, the amount of Registrable Securities proposed
to be included in such Demand Registration by such Requesting
Holders should be limited due to market conditions, then the
Registrable Securities of the Requesting Holders to be included in
such Demand Registration shall equal the number of Registrable
Securities which the Corporation and the Requesting Holders are
advised is satisfactory by such underwriters, and such Registrable
Securities shall be allocated pro rata among such Requesting
Holders on the basis of the number of Registrable Securities
requested to be included in such registration by each such
Requesting Holder.
(h) Selection of Underwriters
. The managing underwriters (including the book running lead
managing underwriters) and any additional investment bankers and
managers to be used in connection with the offering shall be
selected, in the case of an Initial Demand Registration or
Subsequent Demand Registration, by a majority in interest (based on
the number of shares requested to be registered) of the Demand
Rights Holders, considered together as a single class, requesting
such Demand Registration; provided that the lead managing
underwriter must be reasonably satisfactory to the
Corporation.
(i) Piggyback Registration
Rights . Securityholders shall have the right to piggyback on
any Registration Statement (except with respect to Registration
Statements on Form S-4, S-8 or another form not available for
registering the shares for sale to the public), filed by the
Corporation on behalf of the Corporation or any Securityholder (a
“Piggyback Registration “). If at any
time or times after the date hereof the Corporation shall seek to
register capital stock of the Corporation for its own account or on
the account of others, the Corporation will promptly give written
notice thereof to all Securityholders that hold Registrable
Securities. Each Securityholder will have 10 Business Days after
receipt of any such notice to notify the Corporation as to whether
it wishes to participate in a Piggyback Registration (which notice
shall not be deemed to be a request for a Demand Registration);
provided that should a Securityholder fail to provide timely
notice to the Corporation, such Securityholder will forfeit any
rights to participate in the Piggyback Registration with respect to
such proposed offering. The Corporation shall use commercially
reasonable efforts to include the requested Registrable Securities
to be registered. However, to the extent the managing underwriter
determines in good faith that the number of Registrable Securities
requested to be included in the registration should be limited due
to market conditions, then the amount of Registrable Securities to
be included in such Piggyback Registration shall equal the number
of Registrable Securities which the Corporation and the
Securityholders are advised is satisfactory by such underwriters,
and then Registrable Securities to be registered for the
Corporation’s account, if any, shall first be included and
thereafter Registrable Securities shall be allocated pro rata among
such Securityholders (i) first to the Demand Rights Holders
pro rata on the basis of the aggregate number of Registrable
Securities which were requested to be included in such registration
by each such Demand Rights Holder and (ii) then to each other
Securityholder, pro rata among such Securityholders on the basis of
the number of Registrable Securities requested to be included in
such registration by each such Securityholder. If the Corporation
or the Demand Rights Holders for whose account such offering is
being made shall determine in its (or their) sole discretion not to
register or to delay the proposed offering, then the Corporation
shall provide written notice of such determination to the
Securityholders and (A) in the case of a determination not to
effect the proposed
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offering, shall thereupon be relieved of the
obligation to register such Registrable Securities in connection
therewith and (B) in the case of a determination to delay a
proposed offering, shall thereupon be permitted to delay
registering such Registrable Securities for the same period as the
delay in respect of the proposed offering. The Corporation shall be
entitled to select the underwriters in connection with any
Piggyback Registration.
(j) Participation in Underwritten
Registrations. No Person may participate in any underwritten
registered offering contemplated hereunder unless such Person
(a) agrees to sell its Registrable Securities on the basis
provided in any underwriting arrangements approved by the
Corporation, (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements and this Agreement and (c) furnishes in writing
to the Corporation such information regarding such Person, the plan
of distribution of the Registrable Securities and other information
as the Corporation may from time to time request or as may be
legally required in connection with such registration, including,
without limitation, opinions of counsel and a custody agreement;
provided, however , that no such Person shall be required to
make any representations, warranties or indemnities in connection
with any such registration other than representations, warranties
and indemnities as to (i) such Person’s ownership of his
or its Registrable Securities to be sold or Transferred free and
clear of all liens, claims and encumbrances, (ii) such
Person’s right, power and authority to effect such Transfer,
(iii) ),each document delivered by or on behalf of such Person
having been duly and validly authorized, executed and delivered by
or on behalf of such Person and being enforceable against such
Person, (iv) the execution, delivery and performance of each
document delivered by or on behalf of such Person not conflicting
with other agreements, regulations or orders binding such Person or
such Person’s property and (v) such matters pertaining
to compliance with securities Laws as may be reasonably requested;
provided further, however , that the obligation of such
Person to indemnify pursuant to any such underwriting agreements
shall be several, not joint and several, among such Persons selling
Registrable Securities and the liability of each such Person will
be in proportion to, and provided further that such
liability will be limited to, the net amount received by such
Person from the sale of such Person’s Registrable Securities
pursuant to such registration.
3.2 Registration
Procedures.
(a) In connection with the
registration of Registrable Securities pursuant to Section 3.1
of this Agreement, the Corporation will use its commercially
reasonable efforts to effect the registration of such Registrable
Securities (the “Registration Shares “)
as promptly as is reasonably practicable, and in connection with
any such request:
(i) The Corporation will
expeditiously prepare and file with the SEC a Registration
Statement under the Securities Act on any form for which the
Corporation then qualifies and which counsel for the Corporation
shall deem appropriate and available for the sale of the
Registration Shares to be registered thereunder in accordance with
the intended method of distribution thereof, and such amendments
and supplements thereto and the prospectus used in connection
therewith, as may be necessary to keep such Registration Statement,
and use its commercially reasonable efforts to cause such filed
Registration Statement to become and remain, effective with respect
to any Demand Registration or Piggyback
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Registration, for such period, not
to exceed 180 days, as may be necessary to effect the sale of such
securities and comply with the provisions of the Securities Act
with respect to the sale of Registration Shares covered by such
Registration Statement for such period; provided that if the
Corporation shall furnish to each Securityholder who is selling
Registration Shares pursuant to a public offering registered
hereunder (a “ Selling Holder “) a
certificate signed by the Corporation’s Chairman, President
or any Executive Vice-President or Vice-President stating that the
Board has determined in good faith that it would be detrimental or
otherwise disadvantageous to the Corporation or its Securityholders
for such a Registration Statement to be filed as expeditiously as
possible because the sale of Registration Shares covered by such
Registration Statement or the disclosure of information in any
related prospectus or prospectus supplement would materially
interfere with any acquisition, financing or other material event
or transaction which is then intended or the public disclosure of
which at the time would be materially prejudicial to the
Corporation, the Corporation may postpone the filing or
effectiveness of a Registration Statement for a period of not more
than 120 days in any 12 month period; provided that if
(y) the effective date of any Registration Statement filed
pursuant to a Demand Registration would otherwise be at least 45
calendar days, but fewer than 90 calendar days, after the end of
the Corporation’s fiscal year, and (z) the Securities
Act requires the Corporation to include audited financials as of
the end of such fiscal year, then the Corporation may delay the
effectiveness of such Registration Statement for such period as is
reasonably necessary to include therein its audited financial
statements for such fiscal year. If the Corporation exercises its
right to postpone the filing or effectiveness of a Registration
Statement, then the applicable Securityholders shall be entitled to
withdraw their request for such Demand Registration and it shall
not count as a Demand Registration.
(ii) Anything in this Agreement to
the contrary notwithstanding, it is understood and agreed that the
Corporation shall not be required to keep any shelf registration
effective or useable for offers and sales of the Registration
Shares, file a post effective amendment to a shelf Registration
Statement or prospectus supplement or to supplement or amend any
Registration Statement if the Corporation is then involved in
discussions concerning, or otherwise engaged in, any material
financing or investment, acquisition or divestiture transaction or
other material business purpose and the Corporation determines in
good faith that the making of such a filing, supplement or
amendment at such time would materially interfere with such
transaction or purpose. The Corporation shall promptly give the
Selling Holders written notice of such postponement containing a
general statement of the reasons for such postponement and an
approximation of the length of the anticipated delay. Upon receipt
by a Selling Holder of notice of an event of the kind described in
this Section 3.2(a)(ii), such Selling Holder shall forthwith
discontinue such Selling Holder’s disposition of Registration
Shares until such Selling Holder’s receipt of notice from the
Corporation that such disposition may continue and of any
supplemented or amended prospectus indicated in such notice. The
Corporation shall use its commercially reasonable efforts to permit
sales of
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Registration Shares on such shelf
Registration Statement for at least 180 days during any 360-day
period. If the Corporation shall give notice of an event of the
kind described in this Section 3.2(a)(ii), then the
Corporation shall extend the period during which the applicable
Registration Statement shall be maintained effective as provided in
Section 3.2(a)(i) by the number of days during the period from
and including the date of the giving of such notice to the date
when the Corporation shall give notice to the Selling Holders that
such dispositions of such Registration Shares may continue and
shall have made available to the Selling Holders any such
supplemented or amended prospectus.
(iii) The Corporation will, if
requested, prior to filing a Registration Statement or any
amendment or supplement thereto, furnish to the Selling Holders,
and each applicable managing underwriter, if any, copies thereof,
and thereafter furnish to the Selling Holders and each such
underwriter, if any, such number of copies of such Registration
Statement, amendments and supplements thereto (in each case
including all exhibits thereto and documents incorporated by
reference therein) and each prospectus used in connection therewith
(including each preliminary prospectus) as the Selling Holders or
each such underwriter may reasonably request in order to facilitate
the sale of the Registration Shares by the Selling
Holders.
(iv) After the filing of the
Registration Statement, the Corporation will promptly notify the
Selling Holders of any stop order issued or, to the
Corporation’s knowledge, threatened to be issued by the SEC
and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered.
(v) The Corporation will use its
commercially reasonable efforts to register or qualify the
Registration Shares for offer and sale under such other
securiti
