Form 10-Q EQUINIX INC For: Mar 31
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E-mail Exhibit 10.11
Equinix, Inc. 2020 Equity Incentive Plan
Notice of Restricted Stock Unit Award
For Executives
You have been granted the number of restricted stock units (“Restricted Stock Units”) indicated below by Equinix, Inc. (the “Company”) on the following terms:
Name:
Employee Id #:
Restricted Stock Unit Award Details:
Date of Grant:
Award Number:
Minimum Restricted Stock Units (0%):
Target Restricted Stock Units (100%):
Max Restricted Stock Units (120%):
Each Restricted Stock Unit represents the right to receive one share of the Common Stock of the Company, and any Dividend Equivalents thereon prior to settlement, subject to the terms and conditions contained in this Notice of Restricted Stock Unit Award for Executives and the Restricted Stock Unit Agreement (together, the “Agreement”). Capitalized terms not otherwise defined in this Agreement shall have the meaning set forth in the 2020 Equity Incentive Plan (the “Plan”).
Vesting Schedule:
Vesting is dependent upon continuous active service as an employee, consultant or director of the Company or a subsidiary of the Company (“Service”) throughout the vesting period. The Restricted Stock Units shall become eligible to vest upon a determination by the Board or Committee that the Company has achieved revenue and/or AFFO/Share goals for 2021 (the “Performance Goals”) of greater than $____ million and/or $____ per share, respectively, as set forth on the attached Exhibit A, and if achieved, then the Restricted Stock Units, and any Dividend Equivalents thereon, shall vest in a number of shares determined based on the degree of achievement of the revenue and AFFO/Share targets as set forth on the matrix attached as Exhibit A, and at the following times:
•with respect to 50% of those units on the date upon which the Board or Committee certifies that the Company has achieved revenue and/or AFFO/Share goals of greater than $____ million and/or $____ per share, respectively, for 2021;
•with respect to 25% of those units on February 15, 2023; and
•with respect to the remaining 25% of those units on February 15, 2024.
For purposes of this Agreement, AFFO/Share means the Company’s adjusted funds from operations (“AFFO”) for the year ending December 31, 2021 divided by the weighted average number of diluted shares of common stock outstanding on December 31, 2021 as set forth in the Company’s audited financial statements for the year ended December 31, 2021.
The Board or Committee, in its sole discretion, may provide that one or more objectively determinable adjustments shall be made to the determination of the attainment of one or more of the Performance Goals. Such adjustments may include, but are not limited to, one or more of the following: (i) items related to a change in Applicable Accounting Standards; (ii) items relating to financing activities; (iii) expenses for restructuring or productivity initiatives; (iv) other non-operating items; (v) items related to acquisitions or joint ventures; (vi) items attributable to the business operations of any entity acquired by the Company during the Performance Period; (vii) items related to the sale or disposition of a business or segment of a business; (viii) items related to discontinued operations that do not qualify as a segment of a business under Applicable Accounting Standards; (ix) items attributable to any stock dividend, stock split, combination or exchange of stock occurring during the Performance Period; (x) any other items of significant income or expense which are determined to be appropriate adjustments; (xi) items relating to unusual or extraordinary corporate transactions, events or developments, (xii) items related to amortization of acquired intangible assets; (xiii) items that are outside the scope of the Company’s core, on-going business
activities; (xiv) items related to acquired in-process research and development; (xv) items relating to changes in tax laws; (xvi) items relating to major licensing or partnership arrangements; (xvii) items relating to asset impairment charges; (xviii) items relating to gains or losses for litigation, arbitration and contractual settlements; (xix) items attributable to expenses incurred in connection with a reduction in force or early retirement initiative; (xx) items relating to foreign exchange or currency transactions and/or fluctuations; or (xxi) items relating to any other unusual, infrequently occurring or nonrecurring events or changes in applicable law or business conditions. The Board or Committee may make such adjustments to the determination of attainment of one or more of the Performance Goals as the Board or Committee in its sole discretion deems appropriate.
Any Restricted Stock Units, and Dividend Equivalents thereon, that fail to vest based on the Company’s achievement of revenue and AFFO goals based on the matrix set forth on Exhibit A hereto shall be forfeited to the Company immediately following the certification by the Board or Committee of the Company’s achievement of the revenue and AFFO/Share goals for 2021.
In the event of a Change in Control before the end of the 2021 fiscal year, vesting of these Restricted Stock Units, and any Dividend Equivalent thereon, shall no longer be dependent on achievement of the revenue and AFFO/Share goals described above. Instead, subject to your continued Service through the applicable vesting date, 50% of the Target Restricted Stock Units, and any Dividend Equivalent thereon, will vest on February 15, 2022, 25% of the Target Restricted Stock Units, and any Dividend Equivalent thereon, will vest on February 15, 2023 and the remaining 25% of the Target Restricted Stock Units, and any Dividend Equivalent thereon, will vest on February 15, 2024. The remaining Restricted Stock Units, and any Dividend Equivalents thereon, shall be forfeited to the Company (and such forfeited Restricted Stock Units, and any Dividend Equivalents thereon, will not accelerate in the event this Award is not assumed or substituted with a new award).
By your signature and the signature of the Company’s representative below, you and the Company agree that the Restricted Stock Units, and any Dividend Equivalents thereon, are granted under and governed by the terms and conditions of the Plan and the Agreement that is attached to and made a part of this document.
You further agree that the Company may deliver by email all documents relating to the Plan or this Award (including, without limitation, prospectuses required by the U.S. Securities and Exchange Commission) and all other documents that the Company is required to deliver to its security holders (including, without limitation, annual reports and proxy statements). You also agree that the Company may deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a web site, it will notify you by email.
By your signature below, you further agree to cover all Tax-Related Items as defined in the Agreement.
Recipient: Equinix, Inc.
Signature: By: /s/ Charles Meyers
Print Name: Title: CEO & President
Date:___________________________
| EQUINIX, INC. 2020 EQUITY INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT | |||||
| Payment for Shares | No payment is required for the Restricted Stock Units, and any Dividend Equivalents thereon, you receive. | ||||
| Vesting | The Restricted Stock Units, and any Dividend Equivalents thereon, that you are receiving will vest in accordance with the Vesting Schedule stated in the Notice of Restricted Stock Unit Award for Executives; provided, however, that if your Service terminates due to your death, then the portion of the Restricted Stock Units, and any Dividend Equivalents thereon, that would have become vested on the next scheduled vesting date will become vested and the underlying shares (and cash equal to the Dividend Equivalents thereon) will be released to your estate not later than December 31 of the calendar year following your death. | ||||
| No additional Restricted Stock Units, or any Dividend Equivalents thereon, vest after your Service has terminated for any reason other than death, as determined in accordance with subsection (h) of the provision below titled “No Retention Rights.” It is intended that vesting in the Restricted Stock Units, and any Dividend Equivalents thereon, is commensurate with a full-time work schedule and adjustments to vesting may be made for a part-time or reduced work schedule. For possible adjustments that may be made by the Company, see the provision below titled “Leaves of Absence and Part-Time Work.” | |||||
| Dividend Equivalents | You will be credited with Dividend Equivalents equal to the dividends you would have received if you had been the record owner of the Common Stock underlying the Restricted Stock Units on each dividend record date on or after the Date of Award and through the date you receive a settlement pursuant to the provision below titled “Settlement of Units” (the “Dividend Equivalent”). Dividend Equivalents shall be subject to the same terms and conditions as the Restricted Stock Units originally awarded pursuant to this Agreement, and they shall vest (or, if applicable, be forfeited) as if they had been granted at the same time as the original Restricted Stock Unit award. If a dividend on the Common Stock is payable wholly or partially in Common Stock, the Dividend Equivalent representing that portion shall be in the form of additional Restricted Stock Units, credited on a one-for-one basis. If a dividend on the Common Stock is payable wholly or partially in cash, the Dividend Equivalent representing that portion shall be in the form of cash, which will be paid to you, without interest, as described below in the provision “Settlement of Units;” provided, however, that the Administrator may, in its discretion, provide that the cash portion of any extraordinary distribution on the Common Stock shall be in the form of additional Restricted Stock Units. If a dividend on the Common Stock is payable wholly or partially in other than cash or Common Stock, the Administrator may, in its discretion, provide for such Dividend Equivalents with respect to that portion as it deems appropriate under the circumstances. | ||||
| Settlement of Units | Each Restricted Stock Unit, and any Dividend Equivalents thereon, will be settled on the first Trading Day that occurs on or after the day when the Restricted Stock Unit vests. However, each Restricted Stock Unit, and any Dividend Equivalents thereon, must be settled not later than March 15 of the calendar year after the calendar year in which the Restricted Stock Unit vests (or December 31 of such calendar year in the case of your death, as described above in the provision titled “Vesting”). | ||||
| At the time of settlement, you will receive one share of the Company’s Common Stock for each vested Restricted Stock Unit (no fractional shares will be issued) and an amount of cash, without additional earnings or interest and rounded to the nearest whole cent, equal to (i) the value of any fractional share and (ii) the cash portion of the accumulated Dividend Equivalents applicable to the vested Restricted Stock Units, less any withholding obligations for Tax-Related Items. Any cash may be distributed to you directly or may be used to offset any withholding obligation for Tax-Related Items at the time of the vesting/settlement of the Restricted Stock Units and any Dividend Equivalents thereon. | |||||
| “Trading Day” | “Trading Day” means a day that satisfies each of the following requirements: The Nasdaq Global Market is open for trading on that day; •You are permitted to sell Shares on that day without incurring liability under Section 16(b) of the Securities Exchange Act; •Either (a) you are not in possession of material non-public information that would make it illegal for you to sell shares of the Company’s Common Stock on that day under Rule 10b-5 of the U.S. Securities and Exchange Commission or (b) this Award Agreement continues to comply with the requirements of Rule 10b5-1(c)(1) of the Securities Exchange Act; •Under the Company’s Insider Trading Policy, you are permitted to sell Shares on that day; and •You are not prohibited from selling Shares on that day by a written agreement between you and the Company or a third party. | ||||
| Change in Control | Except to the extent set forth in the Notice of Restricted Stock Unit Award for Executives, in the event of any Change in Control, the vesting of the Target Restricted Stock Units, and any Dividend Equivalents thereon, will not automatically accelerate unless this Award is, in connection with the Change in Control, not to be assumed by the successor corporation (or its parent) or to be replaced with a comparable award for shares of the capital stock of the successor corporation (or its parent). The determination of award comparability will be made by the Administrator, and its determination will be final, binding and conclusive. | ||||
| In addition, you will vest as to 100% of the unvested Target Restricted Stock Units, and any Dividend Equivalents thereon, if the Company is subject to a Change in Control before your Service terminates, and you are subject to a Qualifying Termination (as defined below) within 12 months after the Change in Control. | |||||
| Notwithstanding the foregoing, any action taken in connection with a Change in Control must either (a) preserve the exemption of the Restricted Stock Units, and any Dividend Equivalents thereon, from Section 409A of the Code or (b) comply with Section 409A of the Code. | |||||
| Qualifying Termination | A Qualifying Termination means a Separation (as defined below) resulting from: (a) involuntary discharge for any reason other than Cause (as defined below) within 12 months after a Change in Control; or (b) your voluntary resignation for Good Reason (as defined below), between the date that is four months following a Change in Control and the date that is 12 months following a Change in Control; provided, however, that the grounds for Good Reason may arise at any time within the 12 months following the Change in Control. | ||||
| Cause means your unauthorized use or disclosure of trade secrets that causes material harm to the Company, your conviction of, or a plea of “guilty” or “no contest” to, a felony or your gross misconduct. | |||||
| Good Reason means: (i) a material diminution in your authority, duties or responsibilities; (ii) a material reduction in your level of compensation (including base salary and target bonus) other than pursuant to a Company-wide reduction of compensation where the reduction affects the other executive officers and your reduction is substantially equal, on a percentage basis, to the reduction of the other executive officers; or (iii) a relocation of your place of employment by more than 30 miles, provided and only if such change, reduction or relocation is effected by the Company without your consent. | |||||
| For vesting to accelerate as a result of a voluntary resignation for Good Reason, all of the following requirements must be satisfied: (1) you must provide notice to the Company of your intent to assert Good Reason within 120 days of the initial existence of one or more of the conditions set forth in (i) through (iii) of the preceding paragraph; (2) the Company will have 30 days from the date of such notice to remedy the condition and, if it does so, you may withdraw your resignation or may resign with no acceleration benefit; and (3) any termination of employment under this provision must occur within 18 months of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii). Should the Company remedy the condition as set forth above and then one or more of the conditions arises again within 12 months following the occurrence of a Change in Control, you may assert Good Reason again subject to all of the conditions set forth herein. | |||||
| Separation means a “separation from service,” as defined in the regulations under Section 409A of the Code | |||||
| Forfeiture | If your Service terminates for any reason, then your Restricted Stock Units, and any Dividend Equivalents thereon, will be forfeited to the extent that they have not vested before the termination date (as determined in accordance with subsection (h) of the provision titled “No Retention Rights” below), unless there is vesting acceleration in the event of a Qualifying Termination or in the event of your death. Forfeiture means that the Restricted Stock Units, and any Dividend Equivalents thereon, will immediately revert to the Company. You receive no payment for Restricted Stock Units, and any Dividend Equivalents thereon, that are forfeited. | ||||
| Leaves of Absence and Part-Time Work | For purposes of this Award, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company or a Subsidiary of the Company in writing. But your Service terminates when the approved leave ends, unless you immediately return to active work. | ||||
| The Company’s Chief Human Resources Officer or any other person(s) appointed by the Administrator to make determinations under this provision shall have the discretion to determine whether vesting will be suspended during a leave of absence. Such determination will be made on a case-by-case basis and in accordance with Applicable Law. Upon your return to active work (as determined by the Company), vesting will resume; however, unless otherwise provided by the Chief Human Resources Officer or other person(s) appointed by the Administrator or if otherwise required by Applicable Law, you will not receive credit for any vesting until you work an amount of time equal to the period of your leave. | |||||
| If you and the Company or a Subsidiary of the Company agree to a reduction in your scheduled work hours, then the Company reserves the right to modify the rate at which the Restricted Stock Units, and any Dividend Equivalents thereon, vest, so that the rate of vesting is commensurate with your reduced work schedule, provided such modification to your vesting schedule is in accordance with Applicable Law. Any such adjustment shall be consistent with the Company’s policies for part-time or reduced work schedules or shall be pursuant to the terms of an agreement between you and the Company or a Subsidiary of the Company pertaining to your reduced work schedule. | |||||
| The Company shall not be required to adjust any vesting schedule pursuant to this provision. Further, the vesting schedule shall not be adjusted as described in this provision to the extent that the adjustment would cause the Restricted Stock Units to be subject to, or to violate, Section 409A of the Code. | |||||
| Section 409A | This provision applies only to the extent you are a U.S. taxpayer, and only if the Company determines that you are a “specified employee,” as defined in the regulations under Section 409A of the Code, at the time of your “separation from service,” as defined in those regulations. If this paragraph applies, then any Restricted Stock Units, and any Dividend Equivalents thereon, that otherwise would have been settled or paid during the first six months following your separation from service will instead be settled or paid on the first business day following the six-month anniversary of your separation from service, unless the settlement of those units is exempt from Section 409A of the Code. | ||||
| Settlement / Stock Certificates | No Shares shall be issued to you prior to the settlement date. At settlement, the Company shall promptly cause to be issued in book-entry form, registered in your name or in the name of your legal representatives or heirs, as the case may be, the number of Shares representing your vested Restricted Stock Units. No fractional shares shall be issued. | ||||
| Stockholder Rights | The Restricted Stock Units do not entitle you to any of the rights of a stockholder of the Company. Your rights, including rights to any Dividend Equivalents, shall remain forfeitable at all times prior to the date on which you vest in your Award. Upon settlement of the Restricted Stock Units into Shares, you will obtain full voting and other rights as a stockholder of the Company. | ||||
| Units Restricted | You may not sell, transfer, pledge or otherwise dispose of any Restricted Stock Units or rights under this Agreement other than by will or by the laws of descent and distribution. | ||||
| Responsibility for Taxes | Regardless of any action the Company and/or, if different, the Subsidiary of the Company which employs you (the “Employer”) take with respect to any or all income tax (including U.S. federal, state and local tax and/or non-U.S. tax), social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount, if any, actually withheld by the Company and/or the Employer. You further acknowledge that the Company and/or the Employer: (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the award of the Restricted Stock Units, the vesting of the Restricted Stock Units, the issuance of Shares in settlement of the Restricted Stock Units, the subsequent sale of shares acquired at vesting, the receipt of any Dividend Equivalents and the receipt of any dividends; and (b) do not commit to and are under no obligation to structure the terms of this Award or any aspect of the Restricted Stock Units to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you become subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. | ||||
| Prior to any relevant tax withholding event, you authorize the Company and/or the Employer, or their respective agents, at their discretion, to satisfy any withholding obligation by withholding from any cash payment for Dividend Equivalents or from the proceeds of the sale of the Shares issued upon vesting of your Restricted Stock Units through a mandatory sale arranged by the Company (on your behalf pursuant to this authorization and without further consent) (the “Mandatory Sale”). If such sale of shares is prohibited by a legal, contractual or regulatory restriction, or the obligation for withholding of Tax-Related Items arises at a time other than the settlement of the Restricted Stock Units, then in addition to, in lieu of or in combination with the above withholding method, you authorize the Company and/or the Employer, or their respective agents, at their discretion, to satisfy any applicable withholding obligations for Tax-Related Items by: (i) withholding from your wages or other cash compensation payable to you by the Company and/or the Employer; or (ii) withholding in Shares to be issued upon vesting of your Restricted Stock Units. With respect to subsection (ii) of this provision, this form of withholding must be authorized by the Administrator if you are a Section 16 officer of the Company. | |||||
| The Company may withhold or account for Tax-Related Items by considering statutory withholding amounts or other applicable withholding rates, including maximum rates applicable in your jurisdiction(s). In the event of over-withholding you may receive a refund of any over-withheld amount in cash through the Employer’s normal payroll processes (with no entitlement to the equivalent in Shares) or, if not refunded, you may seek a refund from the local tax authorities. In the event of under-withholding, you may be required to pay additional Tax-Related Items directly to the applicable tax authority or to the Company and/or the Employer. If the Company satisfies the obligation for Tax-Related Items by withholding a number of Shares as described above, for tax purposes, you are deemed to have been issued the full number of shares subject to the award of Restricted Stock Units, notwithstanding that a number of the shares is held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of your participation in the Plan. Finally, you must pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your award of Restricted Stock Units, vesting of the Restricted Stock Units, settlement of Dividend Equivalents or the issuance of Shares in settlement of vested Restricted Stock Units that cannot be satisfied by the means previously described. The Company may refuse to deliver the Shares or the proceeds of the sale of Shares to you if you fail to comply with your obligations in connection with the Tax-Related Items. | |||||
| Restrictions on Resale | You agree not to sell any Shares you receive under this Award Agreement at a time when Applicable Laws, regulations, Company trading policies (including the Company’s Insider Trading Policy, a copy of which can be found on the Company’s intranet) or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
| No Retention Rights | In accepting this Award, you acknowledge that: (a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent provided in the Plan; (b) the Award is exceptional, voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, and any Dividend Equivalents thereon, or benefits in lieu of Restricted Stock Units, and any Dividend Equivalents thereon, even if Restricted Stock Units have been granted in the past; (c) all decisions with respect to future awards, if any, will be at the sole discretion of the Company; (d) the grant of Restricted Stock Units and your participation in the Plan is voluntary; (e) your participation in the Plan shall not create a right to further employment with the Employer and shall not interfere with the ability of the Employer to terminate your Service at any time; (f) the Award and your participation in the Plan will not be interpreted to form or amend an employment or service contract or relationship with the Company; (g) the future value of the underlying Shares is unknown and cannot be predicted with certainty; (h) in the event of your termination of Service (whether or not in breach of local labor laws and whether or not later found to be invalid), except in the case of your death, your right to vest in the Restricted Stock Units, and any Dividend Equivalents thereon, under the Plan, if any, will terminate effective as of the date that you are no longer actively employed and will not be extended by any notice period (e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law); the Company’s Chief Human Resources Officer, or any other person(s) appointed by the Administrator or secondary committee appointed by the Board to make determinations under this provision, as applicable, shall have the exclusive discretion to determine when you are no longer actively employed for purposes of this Award (including whether you may still be considered to be providing services while on a leave of absence); (i) the Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan or your acquisition or sale of the underlying Shares; and (j) you should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. | ||||
| If you reside outside the U.S., the following additional provisions shall apply: (k) the Award is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments; (l) the Award is not intended to replace any pension rights or compensation; (m) unless otherwise agreed with the Company, the Award and the Shares subject to the Award, and the income and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of a Subsidiary of the Company; (n) the Award is an extraordinary item that does not constitute compensation of any kind for services of any kind rendered to the Employer, the Company or any other Subsidiary of the Company, and that is outside the scope of your employment or service contract, if any; (o) no claim or entitlement to compensation or damages shall arise from forfeiture of the Award resulting from termination of Service (for any reason whatsoever and whether or not in breach of local labor laws and whether or not later found to be invalid); and (p) neither the Company, the Employer nor any of the other Subsidiary of the Company shall be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the value of the Restricted Stock Units, and any Dividend Equivalents thereon, or of any amount due to you pursuant to the vesting of the Restricted Stock Units, and any Dividend Equivalents thereon, under the Plan or the subsequent sale of the Shares acquired by you under the Plan. | |||||
| Adjustments | In the event of a stock split, a stock dividend or a similar change in Company stock, the number of Restricted Stock Units that will vest in any future installments will be adjusted accordingly, as provided for in the Plan. | ||||
| Repayment/Forfeiture | Any benefits you may receive hereunder shall be subject to repayment or forfeiture as may be required to comply with (i) any applicable listing standards of a national securities exchange adopted in accordance with Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder, (ii) recoupment requirements under any other U.S. laws or under the laws of any other jurisdiction and (iii) any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to you. | ||||
| Data Privacy Notice and Consent | a) Data Collection and Usage. The Company and the Employer collect, process and use certain personal information about you, including, but not limited to, your name, home address and telephone number, email address, date of birth, social insurance, passport or other identification number (e.g., resident registration number), salary, nationality, job title, any Shares or directorships held in the Company, details of all purchase rights or any other entitlement to Shares or equivalent benefits awarded, canceled, exercised, purchased, vested, unvested or outstanding in your favor (“Data”), for the purposes of implementing, administering and managing your participation in the Plan. The legal basis, where required, for the processing of Data is legitimate interest or your consent (where legitimate interest is not applicable). | ||||
b) Stock Plan Administration Service Providers. The Company will transfer Data to E*TRADE Financial Services, Inc. or Morgan Stanley Smith Barney, which are assisting the Company with the implementation, administration and management of the Plan (the “Designated Broker”). The Company may select different or additional service providers in the future and share Data with such other provider(s) serving in a similar manner. You may be asked to agree on separate terms and data processing practices with the Designated Broker, with such agreement being a condition to the ability to participate in the Plan. | |||||
c) International Data Transfers. The Data shall be shared with the Company and the Designated Broker as this is necessary for the purposes of implementing, administering and managing your participation in the Plan. The Company and the Designated Broker are based in the United States. Your country or jurisdiction may have different data privacy laws and protections than the United States. The Company’s legal basis, where required, for the transfer of Data is legitimate interest or your consent (where legitimate interest is not applicable). | |||||
d) Data Retention. The Company will hold and use Data only as long as is necessary to implement, administer and manage your participation in the Plan, or as required to comply with legal or regulatory obligations, including under tax, exchange control, labor and securities laws. | |||||
e) Voluntariness and Consequences of Consent Denial or Withdrawal (This section only applies where legitimate interest is not applicable as the Company’s legal basis for the data processing practices described herein). Participation in the Plan is voluntary, and you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your salary from or employment and career with the Employer will not be affected; the only consequence of refusing or you withdrawing consent is that the Company would not be able to grant the Restricted Stock Units or other equity awards to you or administer or maintain such awards. | |||||
f) Data Subject Rights. You may have a number of rights under data privacy laws in your jurisdiction. Depending on where you are based, such rights may include the right to (i) request access or copies of Data the Company processes, (ii) rectification of incorrect Data, (iii) deletion of Data, (iv) restrictions on processing of Data, (v) portability of Data, (vi) lodge complaints with competent authorities in your jurisdiction, and/or (vii) receive a list with the names and addresses of any potential recipients of Data. To receive clarification regarding these rights or to exercise these rights, you can contact the Company’s Privacy Office via the Company’s Privacy Hub intranet page. | |||||
| g) By accepting the Restricted Stock Units via the Company’s acceptance procedure, you are declaring agreement with the data processing practices described herein on the Company’s legal basis of (1) legitimate interest or (2) consent (where legitimate interest is not applicable), to the collection, processing and use of Data by the Company and the transfer of Data to the recipients mentioned above, including recipients located in countries which do not adduce an adequate level of protection from a European (or other non-U.S.) data protection law perspective, for the purposes described above. | |||||
| Finally, you understand that the Company may rely on a different basis for the processing or transfer of Data in the future and/or request that you provide another data privacy consent. If applicable, you agree that upon request of the Company or the Employer, you will provide an executed acknowledgement or data privacy consent form (or any other agreements or consents) that the Company and/or the Employer may deem necessary to obtain from you for the purpose of administering your participation in the Plan in compliance with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to participate in the Plan if you fail to provide any such consent or agreement requested by the Company and/or the Employer. | |||||
| Insider Trading Restrictions / Market Abuse Laws | You acknowledge that, depending on your or your broker’s country or the country in which Shares are listed, you may be subject to insider trading restrictions and/or market abuse laws, which may affect your ability to accept, acquire, sell or otherwise dispose of Shares, rights to Shares (e.g., Restricted Stock Units) or rights linked to the value of Shares under the Plan during such times that you are considered to have “inside information” regarding the Company (as defined by the Applicable Laws or regulations in the applicable jurisdictions or your country). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. You should keep in mind that third parties include fellow Employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company Insider Trading Policy. You understand you are responsible for ensuring compliance with any restrictions and should consult with your personal legal advisor on this matter. | ||||
| Foreign Asset / Account Reporting Requirements and Exchange Controls | Your country may have certain foreign asset and/or account reporting requirements and exchange controls which may affect your ability to acquire or hold Shares under the Plan or cash received from participating in the Plan (including from any dividends or Dividend Equivalents received or sale proceeds arising from the sale of Shares) in a brokerage or bank account outside your country. You may be required to report such accounts, assets or transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or other funds received as a result of your participation in the Plan to your country through a designated bank or broker and/or within a certain time after receipt. You acknowledge that it is your responsibility to be compliant with such regulations, and you should consult your personal legal advisor for any details. | ||||
| Severability | The provisions of this Award Agreement are severable and if any one or more provisions are determined to be invalid or otherwise enforceable, in whole or in part, the remaining provisions shall continue in effect. | ||||
| Waiver | You acknowledge that a waiver by the Company of breach of any provision of this Award Agreement shall not operate or be construed as a waiver of any other provision of this Award Agreement or of any subsequent breach by you. | ||||
| Language | You acknowledge and represent that you are proficient in the English language or have consulted with an advisor who is sufficiently proficient in English, as to allow you to understand the terms of this Award Agreement and any other documents related to the Plan. If you have received this Award Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different from the English version, the English version will control, unless otherwise prescribed by local law. | ||||
| Electronic Delivery and Acceptance | The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company. | ||||
| Governing Law | This Award Agreement will be interpreted and enforced with respect to issues of contract law under the laws of the State of Delaware (except their choice of law provisions). | ||||
| For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by this grant or this Award Agreement, the parties hereby submit to and consent to the exclusive jurisdiction of the State of California and agree that such litigation shall be conducted only in the courts of San Mateo County, California, U.S.A. or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed. | |||||
| Imposition of Other Requirements | The Company reserves the right to impose other requirements on your participation in the Plan, on the Restricted Stock Units, and any Dividend Equivalents thereon, and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. | ||||
| The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. A copy of the Plan is available on the Company’s intranet or by request to the Stock Services Department. | ||||
| This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Award. Any prior agreements, commitments or negotiations concerning this Award are superseded. This Agreement may be amended only by another written agreement between the parties. | |||||
BY SIGNING THE NOTICE OF RESTRICTED STOCK UNIT AWARD FOR EXECUTIVES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
Exhibit A
Revenue and AFFO/Share Goals for 2021
Exhibit 10.12
EQUINIX, INC. 2020 EQUITY INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK UNIT AWARD
FOR EXECUTIVES
You have been granted the number of restricted stock units (“Restricted Stock Units”) indicated below by Equinix, Inc. (the “Company”) on the following terms:
Name:
Employee Id #:
Restricted Stock Unit Award Details:
Date of Grant:
Award Number:
Minimum Restricted Stock Units (0%):
Target Restricted Stock Units (100%):
Max Restricted Stock Units (200%):
Performance Period: January 1, 2021 through December 31, 2023
Each Restricted Stock Unit represents the right to receive one share of the Common Stock of the Company, and any Dividend Equivalents thereon prior to settlement, subject to the terms and conditions contained in this Notice of Restricted Stock Unit Award for Executives and the Restricted Stock Unit Agreement (together, the “Agreement”). Capitalized terms not otherwise defined in this Agreement shall have the meaning set forth in the 2020 Equity Incentive Plan (the “Plan”).
Vesting Schedule:
Vesting is dependent upon continuous active service as an employee, consultant or director of the Company or a subsidiary of the Company (“Service”) throughout the vesting period.
The Restricted Stock Units, and any Dividend Equivalents thereon, shall vest in a number of shares determined based on the total shareholder return (“TSR”) of the Company’s Common Stock (“EQIX”) against the IWB Russell 1000 Index Fund (the “Index”), calculated using the 30-day trading averages for both EQIX and the Index prior to the start (January 1, 2021) and end (December 31, 2023) of the Performance Period, and including the reinvestment of regular dividends paid by the Company and by the Index (provided both the Company and the Index are paying regular dividends). EQIX performance above and below that of the Index results in the scaling set forth on Exhibit A hereto. The number of Restricted Stock Units, and any Dividend Equivalents thereon, vesting under the award may range from 0% to 200% of the Target Restricted Stock Units as further illustrated on the attached Exhibit A.
Vesting shall occur on the first Trading Day that coincides with or follows the date upon which the Board, or a committee thereof, certifies the TSR over the Performance Period. Any Restricted Stock Units, and Dividend Equivalents thereon, that fail to vest based on the Company’s TSR achievement shall be forfeited to the Company.
In the event of a Change in Control before the end of the 2023 fiscal year, the Performance Period shall be deemed terminated as of the effective date of the Change in Control (the “Shortened Performance Period”), such that TSR shall be calculated against the Index using the 30-day trading averages for both EQIX and the Index at the start and end of the Shortened Performance Period, including reinvested dividends (provided both the Company and the Index are paying regular dividends), to determine the number of the Restricted Stock Units, and any Dividend Equivalents thereon, that are deemed earned in an amount ranging from 0% to 200% as further illustrated on the attached Exhibit A, but that will remain unvested until December 31, 2023, except as otherwise provided in the Plan and the Agreement. The remaining unearned Restricted Stock Units, and Dividend Equivalents thereon, shall be forfeited to the Company upon such Change in Control (and such forfeited Restricted Stock Units, and any Dividend Equivalents thereon, will not accelerate in the event this Award is not assumed or substituted with a new award).
By your signature and the signature of the Company’s representative below, you and the Company agree that the Restricted Stock Units, and any Dividend Equivalents thereon, are granted under and governed by the terms and conditions of the Plan and the Agreement that is attached to and made a part of this document.
You further agree that the Company may deliver by email all documents relating to the Plan or this Award (including, without limitation, prospectuses required by the U.S. Securities and Exchange Commission) and all other documents that the Company is required to deliver to its security holders (including, without limitation, annual reports and proxy statements). You also agree that the Company may deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a web site, it will notify you by email.
By your signature below, you agree to cover all Tax-Related Items as defined in the Agreement.
RECIPIENT: EQUINIX, INC.
Signature: By: /s/ Charles Meyers
Print Name: Title: CEO & President
Date:___________________________
| EQUINIX, INC. 2020 EQUITY INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT | |||||
| Payment for Shares | No payment is required for the Restricted Stock Units, and any Dividend Equivalents thereon, you receive. | ||||
| Vesting | The Restricted Stock Units, and any Dividend Equivalents thereon, that you are receiving will vest in accordance with the Vesting Schedule stated in the Notice of Restricted Stock Unit Award for Executives; provided, however, that if your Service terminates due to your death, then the portion of the Restricted Stock Units, and any Dividend Equivalents thereon, that would have become vested on the next scheduled vesting date will become vested and the underlying shares (and cash equal to the Dividend Equivalents thereon) will be released to your estate not later than December 31 of the calendar year following your death. | ||||
| No additional Restricted Stock Units, or any Dividend Equivalents thereon, vest after your Service has terminated for any reason other than death, as determined in accordance with subsection (h) of the provision below titled “No Retention Rights.” It is intended that vesting in the Restricted Stock Units, and any Dividend Equivalents thereon, is commensurate with a full-time work schedule and adjustments to vesting may be made for a part-time or reduced work schedule. For possible adjustments that may be made by the Company, see the provision below titled “Leaves of Absence and Part-Time Work.” | |||||
| Dividend Equivalents | You will be credited with Dividend Equivalents equal to the dividends you would have received if you had been the record owner of the Common Stock underlying the Restricted Stock Units on each dividend record date on or after the Date of Award and through the date you receive a settlement pursuant to the provision below titled “Settlement of Units” (the “Dividend Equivalent”). Dividend Equivalents shall be subject to the same terms and conditions as the Restricted Stock Units originally awarded pursuant to this Agreement, and they shall vest (or, if applicable, be forfeited) as if they had been granted at the same time as the original Restricted Stock Unit award. If a dividend on the Common Stock is payable wholly or partially in Common Stock, the Dividend Equivalent representing that portion shall be in the form of additional Restricted Stock Units, credited on a one-for-one basis. If a dividend on the Common Stock is payable wholly or partially in cash, the Dividend Equivalent representing that portion shall be in the form of cash, which will be paid to you, without interest, as described below in the provision “Settlement of Units;” provided, however, that the Administrator may, in its discretion, provide that the cash portion of any extraordinary distribution on the Common Stock shall be in the form of additional Restricted Stock Units. If a dividend on the Common Stock is payable wholly or partially in other than cash or Common Stock, the Administrator may, in its discretion, provide for such Dividend Equivalents with respect to that portion as it deems appropriate under the circumstances. | ||||
| Settlement of Units | Each Restricted Stock Unit, and any Dividend Equivalents thereon, will be settled on the first Trading Day that occurs on or after the day when the Restricted Stock Unit vests. However, each Restricted Stock Unit, and any Dividend Equivalents thereon, must be settled not later than March 15 of the calendar year after the calendar year in which the Restricted Stock Unit vests (or December 31 of such calendar year in the case of your death, as described above in the provision titled “Vesting”). | ||||
| At the time of settlement, you will receive one share of the Company’s Common Stock for each vested Restricted Stock Unit (no fractional shares will be issued) and an amount of cash, without additional earnings or interest and rounded to the nearest whole cent, equal to (i) the value of any fractional share and (ii) the cash portion of the accumulated Dividend Equivalents applicable to the vested Restricted Stock Units, less any withholding obligations for Tax-Related Items. Any cash may be distributed to you directly or may be used to offset any withholding obligation for Tax-Related Items at the time of the vesting/settlement of the Restricted Stock Units and any Dividend Equivalents thereon. | |||||
| “Trading Day” | “Trading Day” means a day that satisfies each of the following requirements: The Nasdaq Global Market is open for trading on that day; •You are permitted to sell Shares on that day without incurring liability under Section 16(b) of the Securities Exchange Act; •Either (a) you are not in possession of material non-public information that would make it illegal for you to sell shares of the Company’s Common Stock on that day under Rule 10b-5 of the U.S. Securities and Exchange Commission or (b) this Award Agreement continues to comply with the requirements of Rule 10b5-1(c)(1) of the Securities Exchange Act; •Under the Company’s Insider Trading Policy, you are permitted to sell Shares on that day; and •You are not prohibited from selling Shares on that day by a written agreement between you and the Company or a third party. | ||||
| Change in Control | Except to the extent set forth in the Notice of Restricted Stock Unit Award for Executives, in the event of any Change in Control, the vesting of the Target Restricted Stock Units, and any Dividend Equivalents thereon, will not automatically accelerate unless this Award is, in connection with the Change in Control, not to be assumed by the successor corporation (or its parent) or to be replaced with a comparable award for shares of the capital stock of the successor corporation (or its parent). The determination of award comparability will be made by the Administrator, and its determination will be final, binding and conclusive. | ||||
| In addition, you will vest as to 100% of the unvested Target Restricted Stock Units, and any Dividend Equivalents thereon, if the Company is subject to a Change in Control before your Service terminates, and you are subject to a Qualifying Termination (as defined below) within 12 months after the Change in Control. | |||||
| Notwithstanding the foregoing, any action taken in connection with a Change in Control must either (a) preserve the exemption of the Restricted Stock Units, and any Dividend Equivalents thereon, from Section 409A of the Code or (b) comply with Section 409A of the Code. | |||||
| Qualifying Termination | A Qualifying Termination means a Separation (as defined below) resulting from: (a) involuntary discharge for any reason other than Cause (as defined below) within 12 months after a Change in Control; or (b) your voluntary resignation for Good Reason (as defined below), between the date that is four months following a Change in Control and the date that is 12 months following a Change in Control; provided, however, that the grounds for Good Reason may arise at any time within the 12 months following the Change in Control. | ||||
| Cause means your unauthorized use or disclosure of trade secrets that causes material harm to the Company, your conviction of, or a plea of “guilty” or “no contest” to, a felony or your gross misconduct. | |||||
| Good Reason means: (i) a material diminution in your authority, duties or responsibilities; (ii) a material reduction in your level of compensation (including base salary and target bonus) other than pursuant to a Company-wide reduction of compensation where the reduction affects the other executive officers and your reduction is substantially equal, on a percentage basis, to the reduction of the other executive officers; or (iii) a relocation of your place of employment by more than 30 miles, provided and only if such change, reduction or relocation is effected by the Company without your consent. | |||||
| For vesting to accelerate as a result of a voluntary resignation for Good Reason, all of the following requirements must be satisfied: (1) you must provide notice to the Company of your intent to assert Good Reason within 120 days of the initial existence of one or more of the conditions set forth in (i) through (iii) of the preceding paragraph; (2) the Company will have 30 days from the date of such notice to remedy the condition and, if it does so, you may withdraw your resignation or may resign with no acceleration benefit; and (3) any termination of employment under this provision must occur within 18 months of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii). Should the Company remedy the condition as set forth above and then one or more of the conditions arises again within 12 months following the occurrence of a Change in Control, you may assert Good Reason again subject to all of the conditions set forth herein. | |||||
| Separation means a “separation from service,” as defined in the regulations under Section 409A of the Code | |||||
| Forfeiture | If your Service terminates for any reason, then your Restricted Stock Units, and any Dividend Equivalents thereon, will be forfeited to the extent that they have not vested before the termination date (as determined in accordance with subsection (h) of the provision titled “No Retention Rights” below), unless there is vesting acceleration in the event of a Qualifying Termination or in the event of your death. Forfeiture means that the Restricted Stock Units, and any Dividend Equivalents thereon, will immediately revert to the Company. You receive no payment for Restricted Stock Units, and any Dividend Equivalents thereon, that are forfeited. | ||||
| Leaves of Absence and Part-Time Work | For purposes of this Award, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company or a Subsidiary of the Company in writing. But your Service terminates when the approved leave ends, unless you immediately return to active work. | ||||
| The Company’s Chief Human Resources Officer or any other person(s) appointed by the Administrator to make determinations under this provision shall have the discretion to determine whether vesting will be suspended during a leave of absence. Such determination will be made on a case-by-case basis and in accordance with Applicable Law. Upon your return to active work (as determined by the Company), vesting will resume; however, unless otherwise provided by the Chief Human Resources Officer or other person(s) appointed by the Administrator or if otherwise required by Applicable Law, you will not receive credit for any vesting until you work an amount of time equal to the period of your leave. | |||||
| If you and the Company or a Subsidiary of the Company agree to a reduction in your scheduled work hours, then the Company reserves the right to modify the rate at which the Restricted Stock Units, and any Dividend Equivalents thereon, vest, so that the rate of vesting is commensurate with your reduced work schedule, provided such modification to your vesting schedule is in accordance with Applicable Law. Any such adjustment shall be consistent with the Company’s policies for part-time or reduced work schedules or shall be pursuant to the terms of an agreement between you and the Company or a Subsidiary of the Company pertaining to your reduced work schedule. | |||||
| The Company shall not be required to adjust any vesting schedule pursuant to this provision. Further, the vesting schedule shall not be adjusted as described in this provision to the extent that the adjustment would cause the Restricted Stock Units to be subject to, or to violate, Section 409A of the Code. | |||||
| Section 409A | This provision applies only to the extent you are a U.S. taxpayer, and only if the Company determines that you are a “specified employee,” as defined in the regulations under Section 409A of the Code, at the time of your “separation from service,” as defined in those regulations. If this paragraph applies, then any Restricted Stock Units, and any Dividend Equivalents thereon, that otherwise would have been settled or paid during the first six months following your separation from service will instead be settled or paid on the first business day following the six-month anniversary of your separation from service, unless the settlement of those units is exempt from Section 409A of the Code. | ||||
| Settlement / Stock Certificates | No Shares shall be issued to you prior to the settlement date. At settlement, the Company shall promptly cause to be issued in book-entry form, registered in your name or in the name of your legal representatives or heirs, as the case may be, the number of Shares representing your vested Restricted Stock Units. No fractional shares shall be issued. | ||||
| Stockholder Rights | The Restricted Stock Units do not entitle you to any of the rights of a stockholder of the Company. Your rights, including rights to any Dividend Equivalents, shall remain forfeitable at all times prior to the date on which you vest in your Award. Upon settlement of the Restricted Stock Units into Shares, you will obtain full voting and other rights as a stockholder of the Company. | ||||
| Units Restricted | You may not sell, transfer, pledge or otherwise dispose of any Restricted Stock Units or rights under this Agreement other than by will or by the laws of descent and distribution. | ||||
| Responsibility for Taxes | Regardless of any action the Company and/or, if different, the Subsidiary of the Company which employs you (the “Employer”) take with respect to any or all income tax (including U.S. federal, state and local tax and/or non-U.S. tax), social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount, if any, actually withheld by the Company and/or the Employer. You further acknowledge that the Company and/or the Employer: (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the award of the Restricted Stock Units, the vesting of the Restricted Stock Units, the issuance of Shares in settlement of the Restricted Stock Units, the subsequent sale of shares acquired at vesting, the receipt of any Dividend Equivalents and the receipt of any dividends; and (b) do not commit to and are under no obligation to structure the terms of this Award or any aspect of the Restricted Stock Units to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you become subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. | ||||
| Prior to any relevant tax withholding event, you authorize the Company and/or the Employer, or their respective agents, at their discretion, to satisfy any withholding obligation by withholding from any cash payment for Dividend Equivalents or from the proceeds of the sale of the Shares issued upon vesting of your Restricted Stock Units through a mandatory sale arranged by the Company (on your behalf pursuant to this authorization and without further consent) (the “Mandatory Sale”). If such sale of shares is prohibited by a legal, contractual or regulatory restriction, or the obligation for withholding of Tax-Related Items arises at a time other than the settlement of the Restricted Stock Units, then in addition to, in lieu of or in combination with the above withholding method, you authorize the Company and/or the Employer, or their respective agents, at their discretion, to satisfy any applicable withholding obligations for Tax-Related Items by: (i) withholding from your wages or other cash compensation payable to you by the Company and/or the Employer; or (ii) withholding in Shares to be issued upon vesting of your Restricted Stock Units. With respect to subsection (ii) of this provision, this form of withholding must be authorized by the Administrator if you are a Section 16 officer of the Company. | |||||
| The Company may withhold or account for Tax-Related Items by considering statutory withholding amounts or other applicable withholding rates, including maximum rates applicable in your jurisdiction(s). In the event of over-withholding you may receive a refund of any over-withheld amount in cash through the Employer’s normal payroll processes (with no entitlement to the equivalent in Shares) or, if not refunded, you may seek a refund from the local tax authorities. In the event of under-withholding, you may be required to pay additional Tax-Related Items directly to the applicable tax authority or to the Company and/or the Employer. If the Company satisfies the obligation for Tax-Related Items by withholding a number of Shares as described above, for tax purposes, you are deemed to have been issued the full number of shares subject to the award of Restricted Stock Units, notwithstanding that a number of the shares is held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of your participation in the Plan. Finally, you must pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your award of Restricted Stock Units, vesting of the Restricted Stock Units, settlement of Dividend Equivalents or the issuance of Shares in settlement of vested Restricted Stock Units that cannot be satisfied by the means previously described. The Company may refuse to deliver the Shares or the proceeds of the sale of Shares to you if you fail to comply with your obligations in connection with the Tax-Related Items. | |||||
| Restrictions on Resale | You agree not to sell any Shares you receive under this Award Agreement at a time when Applicable Laws, regulations, Company trading policies (including the Company’s Insider Trading Policy, a copy of which can be found on the Company’s intranet) or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
| No Retention Rights | In accepting this Award, you acknowledge that: (a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent provided in the Plan; (b) the Award is exceptional, voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, and any Dividend Equivalents thereon, or benefits in lieu of Restricted Stock Units, and any Dividend Equivalents thereon, even if Restricted Stock Units have been granted in the past; (c) all decisions with respect to future awards, if any, will be at the sole discretion of the Company; (d) the grant of Restricted Stock Units and your participation in the Plan is voluntary; (e) your participation in the Plan shall not create a right to further employment with the Employer and shall not interfere with the ability of the Employer to terminate your Service at any time; (f) the Award and your participation in the Plan will not be interpreted to form or amend an employment or service contract or relationship with the Company; (g) the future value of the underlying Shares is unknown and cannot be predicted with certainty; (h) in the event of your termination of Service (whether or not in breach of local labor laws and whether or not later found to be invalid), except in the case of your death, your right to vest in the Restricted Stock Units, and any Dividend Equivalents thereon, under the Plan, if any, will terminate effective as of the date that you are no longer actively employed and will not be extended by any notice period (e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law); the Company’s Chief Human Resources Officer, or any other person(s) appointed by the Administrator or secondary committee appointed by the Board to make determinations under this provision, as applicable, shall have the exclusive discretion to determine when you are no longer actively employed for purposes of this Award (including whether you may still be considered to be providing services while on a leave of absence); (i) the Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan or your acquisition or sale of the underlying Shares; and (j) you should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. | ||||
| If you reside outside the U.S., the following additional provisions shall apply: (k) the Award is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments; (l) the Award is not intended to replace any pension rights or compensation; (m) unless otherwise agreed with the Company, the Award and the Shares subject to the Award, and the income and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of a Subsidiary of the Company; (n) the Award is an extraordinary item that does not constitute compensation of any kind for services of any kind rendered to the Employer, the Company or any other Subsidiary of the Company, and that is outside the scope of your employment or service contract, if any; (o) no claim or entitlement to compensation or damages shall arise from forfeiture of the Award resulting from termination of Service (for any reason whatsoever and whether or not in breach of local labor laws and whether or not later found to be invalid); and (p) neither the Company, the Employer nor any of the other Subsidiary of the Company shall be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the value of the Restricted Stock Units, and any Dividend Equivalents thereon, or of any amount due to you pursuant to the vesting of the Restricted Stock Units, and any Dividend Equivalents thereon, under the Plan or the subsequent sale of the Shares acquired by you under the Plan. | |||||
| Adjustments | In the event of a stock split, a stock dividend or a similar change in Company stock, the number of Restricted Stock Units that will vest in any future installments will be adjusted accordingly, as provided for in the Plan. | ||||
| Repayment/Forfeiture | Any benefits you may receive hereunder shall be subject to repayment or forfeiture as may be required to comply with (i) any applicable listing standards of a national securities exchange adopted in accordance with Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder, (ii) recoupment requirements under any other U.S. laws or under the laws of any other jurisdiction and (iii) any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to you. | ||||
| Data Privacy Notice and Consent | a) Data Collection and Usage. The Company and the Employer collect, process and use certain personal information about you, including, but not limited to, your name, home address and telephone number, email address, date of birth, social insurance, passport or other identification number (e.g., resident registration number), salary, nationality, job title, any Shares or directorships held in the Company, details of all purchase rights or any other entitlement to Shares or equivalent benefits awarded, canceled, exercised, purchased, vested, unvested or outstanding in your favor (“Data”), for the purposes of implementing, administering and managing your participation in the Plan. The legal basis, where required, for the processing of Data is legitimate interest or your consent (where legitimate interest is not applicable). | ||||
b) Stock Plan Administration Service Providers. The Company will transfer Data to E*TRADE Financial Services, Inc. or Morgan Stanley Smith Barney, which are assisting the Company with the implementation, administration and management of the Plan (the “Designated Broker”). The Company may select different or additional service providers in the future and share Data with such other provider(s) serving in a similar manner. You may be asked to agree on separate terms and data processing practices with the Designated Broker, with such agreement being a condition to the ability to participate in the Plan. | |||||
c) International Data Transfers. The Data shall be shared with the Company and the Designated Broker as this is necessary for the purposes of implementing, administering and managing your participation in the Plan. The Company and the Designated Broker are based in the United States. Your country or jurisdiction may have different data privacy laws and protections than the United States. The Company’s legal basis, where required, for the transfer of Data is legitimate interest or your consent (where legitimate interest is not applicable). | |||||
d) Data Retention. The Company will hold and use Data only as long as is necessary to implement, administer and manage your participation in the Plan, or as required to comply with legal or regulatory obligations, including under tax, exchange control, labor and securities laws. | |||||
e) Voluntariness and Consequences of Consent Denial or Withdrawal (This section only applies where legitimate interest is not applicable as the Company’s legal basis for the data processing practices described herein). Participation in the Plan is voluntary, and you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your salary from or employment and career with the Employer will not be affected; the only consequence of refusing or you withdrawing consent is that the Company would not be able to grant the Restricted Stock Units or other equity awards to you or administer or maintain such awards. | |||||
f) Data Subject Rights. You may have a number of rights under data privacy laws in your jurisdiction. Depending on where you are based, such rights may include the right to (i) request access or copies of Data the Company processes, (ii) rectification of incorrect Data, (iii) deletion of Data, (iv) restrictions on processing of Data, (v) portability of Data, (vi) lodge complaints with competent authorities in your jurisdiction, and/or (vii) receive a list with the names and addresses of any potential recipients of Data. To receive clarification regarding these rights or to exercise these rights, you can contact the Company’s Privacy Office via the Company’s Privacy Hub intranet page. | |||||
| g) By accepting the Restricted Stock Units via the Company’s acceptance procedure, you are declaring agreement with the data processing practices described herein on the Company’s legal basis of (1) legitimate interest or (2) consent (where legitimate interest is not applicable), to the collection, processing and use of Data by the Company and the transfer of Data to the recipients mentioned above, including recipients located in countries which do not adduce an adequate level of protection from a European (or other non-U.S.) data protection law perspective, for the purposes described above. | |||||
| Finally, you understand that the Company may rely on a different basis for the processing or transfer of Data in the future and/or request that you provide another data privacy consent. If applicable, you agree that upon request of the Company or the Employer, you will provide an executed acknowledgement or data privacy consent form (or any other agreements or consents) that the Company and/or the Employer may deem necessary to obtain from you for the purpose of administering your participation in the Plan in compliance with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to participate in the Plan if you fail to provide any such consent or agreement requested by the Company and/or the Employer. | |||||
| Insider Trading Restrictions / Market Abuse Laws | You acknowledge that, depending on your or your broker’s country or the country in which Shares are listed, you may be subject to insider trading restrictions and/or market abuse laws, which may affect your ability to accept, acquire, sell or otherwise dispose of Shares, rights to Shares (e.g., Restricted Stock Units) or rights linked to the value of Shares under the Plan during such times that you are considered to have “inside information” regarding the Company (as defined by the Applicable Laws or regulations in the applicable jurisdictions or your country). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. You should keep in mind that third parties include fellow Employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company Insider Trading Policy. You understand you are responsible for ensuring compliance with any restrictions and should consult with your personal legal advisor on this matter. | ||||
| Foreign Asset / Account Reporting Requirements and Exchange Controls | Your country may have certain foreign asset and/or account reporting requirements and exchange controls which may affect your ability to acquire or hold Shares under the Plan or cash received from participating in the Plan (including from any dividends or Dividend Equivalents received or sale proceeds arising from the sale of Shares) in a brokerage or bank account outside your country. You may be required to report such accounts, assets or transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or other funds received as a result of your participation in the Plan to your country through a designated bank or broker and/or within a certain time after receipt. You acknowledge that it is your responsibility to be compliant with such regulations, and you should consult your personal legal advisor for any details. | ||||
| Severability | The provisions of this Award Agreement are severable and if any one or more provisions are determined to be invalid or otherwise enforceable, in whole or in part, the remaining provisions shall continue in effect. | ||||
| Waiver | You acknowledge that a waiver by the Company of breach of any provision of this Award Agreement shall not operate or be construed as a waiver of any other provision of this Award Agreement or of any subsequent breach by you. | ||||
| Language | You acknowledge and represent that you are proficient in the English language or have consulted with an advisor who is sufficiently proficient in English, as to allow you to understand the terms of this Award Agreement and any other documents related to the Plan. If you have received this Award Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different from the English version, the English version will control, unless otherwise prescribed by local law. | ||||
| Electronic Delivery and Acceptance | The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company. | ||||
| Governing Law | This Award Agreement will be interpreted and enforced with respect to issues of contract law under the laws of the State of Delaware (except their choice of law provisions). | ||||
| For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by this grant or this Award Agreement, the parties hereby submit to and consent to the exclusive jurisdiction of the State of California and agree that such litigation shall be conducted only in the courts of San Mateo County, California, U.S.A. or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed. | |||||
| Imposition of Other Requirements | The Company reserves the right to impose other requirements on your participation in the Plan, on the Restricted Stock Units, and any Dividend Equivalents thereon, and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. | ||||
| The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. A copy of the Plan is available on the Company’s intranet or by request to the Stock Services Department. | ||||
| This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Award. Any prior agreements, commitments or negotiations concerning this Award are superseded. This Agreement may be amended only by another written agreement between the parties. | |||||
BY SIGNING THE NOTICE OF RESTRICTED STOCK UNIT AWARD FOR EXECUTIVES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
Exhibit A
| Ramped Accelerator/Decelerator (0% Min Payout) | ||||||||||||||||||||||||||
| Index | Russell 1000 - IWB Fund | Performance | Payout | Scale | ||||||||||||||||||||||
| Perf. Period | 3 years | >50% | 200% | 2:1 | ||||||||||||||||||||||
| TSR Calc. | EQIX vs. Russell 1000 | +50% | 200% | 2:1 | ||||||||||||||||||||||
| +40% | 180% | 2:1 | ||||||||||||||||||||||||
| Min TSR for payout | NA | +30% | 160% | 2:1 | ||||||||||||||||||||||
| Minimum Payout | 0% | +25% | 150% | 2:1 | ||||||||||||||||||||||
| Maximum Payout | 200% | +20% | 140% | 2:1 | ||||||||||||||||||||||
| +10% | 120% | 2:1 | ||||||||||||||||||||||||
| Performance Scale | Above Index | 2:1 | +1% | 102% | 2:1 | |||||||||||||||||||||
| Index | 1:1 | = | 100% | 1:1 | ||||||||||||||||||||||
| Below Index | 2:1 | -1% | 98% | 2:1 | ||||||||||||||||||||||
| -10% | 80% | 2:1 | ||||||||||||||||||||||||
| -20% | 60% | 2:1 | ||||||||||||||||||||||||
| -30% | 40% | 2:1 | ||||||||||||||||||||||||
| -35% | 30% | 2:1 | ||||||||||||||||||||||||
| -40% | 20% | 2:1 | ||||||||||||||||||||||||
| >-40% | 0% | 2:1 | ||||||||||||||||||||||||
TSR calculation to include reinvested regular dividends paid by both the Company and the Index; provided both the Company and the Index are paying regular dividends.
Exhibit 10.13
Equinix, Inc. 2020 Equity Incentive Plan
Notice of Restricted Stock Unit Award
For Executives
You have been granted the number of restricted stock units (“Restricted Stock Units”) indicated below by Equinix, Inc. (the “Company”) on the following terms:
Name:
Employee Id #:
Restricted Stock Unit Award Details:
Date of Grant:
Award Number:
Number of Restricted Stock Units:
Each Restricted Stock Unit represents the right to receive one share of the Common Stock of the Company, and any Dividend Equivalents thereon prior to settlement, subject to the terms and conditions contained in this Notice of Restricted Stock Unit Award for Executives and the Restricted Stock Unit Agreement (together, the “Agreement”). Capitalized terms not otherwise defined in this Agreement shall have the meaning set forth in the 2020 Equity Incentive Plan (the “Plan”).
Vesting Schedule:
Vesting is dependent upon continuous active service as an Employee, Consultant or Director of the Company or a Subsidiary of the Company (“Service”) throughout the vesting period. The Restricted Stock Units, and any Dividend Equivalents thereon, shall vest at the following times:
•with respect to 33 1/3% of those units on the first Trading Day that coincides with or follows January 15, 2022;
•with respect to 33 1/3% of those units on the first Trading Day that coincides with or follows January 15, 2023; and
•with respect to 33 1/3% of those units on the first Trading Day that coincides with or follows January 15, 2024.
By your signature and the signature of the Company’s representative below, you and the Company agree that the Restricted Stock Units, and any Dividend Equivalents thereon, are granted under and governed by the terms and conditions of the Plan and the Agreement that is attached to and made a part of this document.
You further agree that the Company may deliver by email all documents relating to the Plan or this Award (including, without limitation, prospectuses required by the U.S. Securities and Exchange Commission) and all other documents that the Company is required to deliver to its security holders (including, without limitation, annual reports and proxy statements). You also agree that the Company may deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a web site, it will notify you by email.
By your signature below, you agree to cover all Tax-Related Items as defined in the Agreement.
Recipient: Equinix, Inc.
Signature: By: /s/ Charles Meyers
Print Name: Title: CEO & President
Date:___________________________
| EQUINIX, INC. 2020 EQUITY INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT | |||||
| Payment for Shares | No payment is required for the Restricted Stock Units, and any Dividend Equivalents thereon, you receive. | ||||
| Vesting | The Restricted Stock Units, and any Dividend Equivalents thereon, that you are receiving will vest in accordance with the Vesting Schedule stated in the Notice of Restricted Stock Unit Award for Executives; provided, however, that if your Service terminates due to your death, then the portion of the Restricted Stock Units, and any Dividend Equivalents thereon, that would have become vested on the next scheduled vesting date will become vested and the underlying shares (and cash equal to the Dividend Equivalents thereon) will be released to your estate not later than December 31 of the calendar year following your death. | ||||
| No additional Restricted Stock Units, or any Dividend Equivalents thereon, vest after your Service has terminated for any reason other than death, as determined in accordance with subsection (h) of the provision below titled “No Retention Rights.” It is intended that vesting in the Restricted Stock Units, and any Dividend Equivalents thereon, is commensurate with a full-time work schedule and adjustments to vesting may be made for a part-time or reduced work schedule. For possible adjustments that may be made by the Company, see the provision below titled “Leaves of Absence and Part-Time Work.” | |||||
| Dividend Equivalents | You will be credited with Dividend Equivalents equal to the dividends you would have received if you had been the record owner of the Common Stock underlying the Restricted Stock Units on each dividend record date on or after the Date of Award and through the date you receive a settlement pursuant to the provision below titled “Settlement of Units” (the “Dividend Equivalent”). Dividend Equivalents shall be subject to the same terms and conditions as the Restricted Stock Units originally awarded pursuant to this Agreement, and they shall vest (or, if applicable, be forfeited) as if they had been granted at the same time as the original Restricted Stock Unit award. If a dividend on the Common Stock is payable wholly or partially in Common Stock, the Dividend Equivalent representing that portion shall be in the form of additional Restricted Stock Units, credited on a one-for-one basis. If a dividend on the Common Stock is payable wholly or partially in cash, the Dividend Equivalent representing that portion shall be in the form of cash, which will be paid to you, without interest, as described below in the provision “Settlement of Units;” provided, however, that the Administrator may, in its discretion, provide that the cash portion of any extraordinary distribution on the Common Stock shall be in the form of additional Restricted Stock Units. If a dividend on the Common Stock is payable wholly or partially in other than cash or Common Stock, the Administrator may, in its discretion, provide for such Dividend Equivalents with respect to that portion as it deems appropriate under the circumstances. | ||||
| Settlement of Units | Each Restricted Stock Unit, and any Dividend Equivalents thereon, will be settled on the first Trading Day that occurs on or after the day when the Restricted Stock Unit vests. However, each Restricted Stock Unit, and any Dividend Equivalents thereon, must be settled not later than March 15 of the calendar year after the calendar year in which the Restricted Stock Unit vests (or December 31 of such calendar year in the case of your death, as described above in the provision titled “Vesting”). | ||||
| At the time of settlement, you will receive one share of the Company’s Common Stock for each vested Restricted Stock Unit (no fractional shares will be issued) and an amount of cash, without additional earnings or interest and rounded to the nearest whole cent, equal to (i) the value of any fractional share and (ii) the cash portion of the accumulated Dividend Equivalents applicable to the vested Restricted Stock Units, less any withholding obligations for Tax-Related Items. Any cash may be distributed to you directly or may be used to offset any withholding obligation for Tax-Related Items at the time of the vesting/settlement of the Restricted Stock Units and any Dividend Equivalents thereon. | |||||
| “Trading Day” | “Trading Day” means a day that satisfies each of the following requirements: The Nasdaq Global Market is open for trading on that day; •You are permitted to sell Shares on that day without incurring liability under Section 16(b) of the Securities Exchange Act; •Either (a) you are not in possession of material non-public information that would make it illegal for you to sell shares of the Company’s Common Stock on that day under Rule 10b-5 of the U.S. Securities and Exchange Commission or (b) this Award Agreement continues to comply with the requirements of Rule 10b5-1(c)(1) of the Securities Exchange Act; •Under the Company’s Insider Trading Policy, you are permitted to sell Shares on that day; and •You are not prohibited from selling Shares on that day by a written agreement between you and the Company or a third party. | ||||
| Change in Control | Except to the extent set forth in the Notice of Restricted Stock Unit Award for Executives, in the event of any Change in Control, the vesting of the Target Restricted Stock Units, and any Dividend Equivalents thereon, will not automatically accelerate unless this Award is, in connection with the Change in Control, not to be assumed by the successor corporation (or its parent) or to be replaced with a comparable award for shares of the capital stock of the successor corporation (or its parent). The determination of award comparability will be made by the Administrator, and its determination will be final, binding and conclusive. | ||||
| In addition, you will vest as to 100% of the unvested Target Restricted Stock Units, and any Dividend Equivalents thereon, if the Company is subject to a Change in Control before your Service terminates, and you are subject to a Qualifying Termination (as defined below) within 12 months after the Change in Control. | |||||
| Notwithstanding the foregoing, any action taken in connection with a Change in Control must either (a) preserve the exemption of the Restricted Stock Units, and any Dividend Equivalents thereon, from Section 409A of the Code or (b) comply with Section 409A of the Code. | |||||
| Qualifying Termination | A Qualifying Termination means a Separation (as defined below) resulting from: (a) involuntary discharge for any reason other than Cause (as defined below) within 12 months after a Change in Control; or (b) your voluntary resignation for Good Reason (as defined below), between the date that is four months following a Change in Control and the date that is 12 months following a Change in Control; provided, however, that the grounds for Good Reason may arise at any time within the 12 months following the Change in Control. | ||||
| Cause means your unauthorized use or disclosure of trade secrets that causes material harm to the Company, your conviction of, or a plea of “guilty” or “no contest” to, a felony or your gross misconduct. | |||||
| Good Reason means: (i) a material diminution in your authority, duties or responsibilities; (ii) a material reduction in your level of compensation (including base salary and target bonus) other than pursuant to a Company-wide reduction of compensation where the reduction affects the other executive officers and your reduction is substantially equal, on a percentage basis, to the reduction of the other executive officers; or (iii) a relocation of your place of employment by more than 30 miles, provided and only if such change, reduction or relocation is effected by the Company without your consent. | |||||
| For vesting to accelerate as a result of a voluntary resignation for Good Reason, all of the following requirements must be satisfied: (1) you must provide notice to the Company of your intent to assert Good Reason within 120 days of the initial existence of one or more of the conditions set forth in (i) through (iii) of the preceding paragraph; (2) the Company will have 30 days from the date of such notice to remedy the condition and, if it does so, you may withdraw your resignation or may resign with no acceleration benefit; and (3) any termination of employment under this provision must occur within 18 months of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii). Should the Company remedy the condition as set forth above and then one or more of the conditions arises again within 12 months following the occurrence of a Change in Control, you may assert Good Reason again subject to all of the conditions set forth herein. | |||||
| Separation means a “separation from service,” as defined in the regulations under Section 409A of the Code | |||||
| Forfeiture | If your Service terminates for any reason, then your Restricted Stock Units, and any Dividend Equivalents thereon, will be forfeited to the extent that they have not vested before the termination date (as determined in accordance with subsection (h) of the provision titled “No Retention Rights” below), unless there is vesting acceleration in the event of a Qualifying Termination or in the event of your death. Forfeiture means that the Restricted Stock Units, and any Dividend Equivalents thereon, will immediately revert to the Company. You receive no payment for Restricted Stock Units, and any Dividend Equivalents thereon, that are forfeited. | ||||
| Leaves of Absence and Part-Time Work | For purposes of this Award, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company or a Subsidiary of the Company in writing. But your Service terminates when the approved leave ends, unless you immediately return to active work. | ||||
| The Company’s Chief Human Resources Officer or any other person(s) appointed by the Administrator to make determinations under this provision shall have the discretion to determine whether vesting will be suspended during a leave of absence. Such determination will be made on a case-by-case basis and in accordance with Applicable Law. Upon your return to active work (as determined by the Company), vesting will resume; however, unless otherwise provided by the Chief Human Resources Officer or other person(s) appointed by the Administrator or if otherwise required by Applicable Law, you will not receive credit for any vesting until you work an amount of time equal to the period of your leave. | |||||
| If you and the Company or a Subsidiary of the Company agree to a reduction in your scheduled work hours, then the Company reserves the right to modify the rate at which the Restricted Stock Units, and any Dividend Equivalents thereon, vest, so that the rate of vesting is commensurate with your reduced work schedule, provided such modification to your vesting schedule is in accordance with Applicable Law. Any such adjustment shall be consistent with the Company’s policies for part-time or reduced work schedules or shall be pursuant to the terms of an agreement between you and the Company or a Subsidiary of the Company pertaining to your reduced work schedule. | |||||
| The Company shall not be required to adjust any vesting schedule pursuant to this provision. Further, the vesting schedule shall not be adjusted as described in this provision to the extent that the adjustment would cause the Restricted Stock Units to be subject to, or to violate, Section 409A of the Code. | |||||
| Section 409A | This provision applies only to the extent you are a U.S. taxpayer, and only if the Company determines that you are a “specified employee,” as defined in the regulations under Section 409A of the Code, at the time of your “separation from service,” as defined in those regulations. If this paragraph applies, then any Restricted Stock Units, and any Dividend Equivalents thereon, that otherwise would have been settled or paid during the first six months following your separation from service will instead be settled or paid on the first business day following the six-month anniversary of your separation from service, unless the settlement of those units is exempt from Section 409A of the Code. | ||||
| Settlement / Stock Certificates | No Shares shall be issued to you prior to the settlement date. At settlement, the Company shall promptly cause to be issued in book-entry form, registered in your name or in the name of your legal representatives or heirs, as the case may be, the number of Shares representing your vested Restricted Stock Units. No fractional shares shall be issued. | ||||
| Stockholder Rights | The Restricted Stock Units do not entitle you to any of the rights of a stockholder of the Company. Your rights, including rights to any Dividend Equivalents, shall remain forfeitable at all times prior to the date on which you vest in your Award. Upon settlement of the Restricted Stock Units into Shares, you will obtain full voting and other rights as a stockholder of the Company. | ||||
| Units Restricted | You may not sell, transfer, pledge or otherwise dispose of any Restricted Stock Units or rights under this Agreement other than by will or by the laws of descent and distribution. | ||||
| Responsibility for Taxes | Regardless of any action the Company and/or, if different, the Subsidiary of the Company which employs you (the “Employer”) take with respect to any or all income tax (including U.S. federal, state and local tax and/or non-U.S. tax), social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount, if any, actually withheld by the Company and/or the Employer. You further acknowledge that the Company and/or the Employer: (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the award of the Restricted Stock Units, the vesting of the Restricted Stock Units, the issuance of Shares in settlement of the Restricted Stock Units, the subsequent sale of shares acquired at vesting, the receipt of any Dividend Equivalents and the receipt of any dividends; and (b) do not commit to and are under no obligation to structure the terms of this Award or any aspect of the Restricted Stock Units to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you become subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. | ||||
| Prior to any relevant tax withholding event, you authorize the Company and/or the Employer, or their respective agents, at their discretion, to satisfy any withholding obligation by withholding from any cash payment for Dividend Equivalents or from the proceeds of the sale of the Shares issued upon vesting of your Restricted Stock Units through a mandatory sale arranged by the Company (on your behalf pursuant to this authorization and without further consent) (the “Mandatory Sale”). If such sale of shares is prohibited by a legal, contractual or regulatory restriction, or the obligation for withholding of Tax-Related Items arises at a time other than the settlement of the Restricted Stock Units, then in addition to, in lieu of or in combination with the above withholding method, you authorize the Company and/or the Employer, or their respective agents, at their discretion, to satisfy any applicable withholding obligations for Tax-Related Items by: (i) withholding from your wages or other cash compensation payable to you by the Company and/or the Employer; or (ii) withholding in Shares to be issued upon vesting of your Restricted Stock Units. With respect to subsection (ii) of this provision, this form of withholding must be authorized by the Administrator if you are a Section 16 officer of the Company. | |||||
| The Company may withhold or account for Tax-Related Items by considering statutory withholding amounts or other applicable withholding rates, including maximum rates applicable in your jurisdiction(s). In the event of over-withholding you may receive a refund of any over-withheld amount in cash through the Employer’s normal payroll processes (with no entitlement to the equivalent in Shares) or, if not refunded, you may seek a refund from the local tax authorities. In the event of under-withholding, you may be required to pay additional Tax-Related Items directly to the applicable tax authority or to the Company and/or the Employer. If the Company satisfies the obligation for Tax-Related Items by withholding a number of Shares as described above, for tax purposes, you are deemed to have been issued the full number of shares subject to the award of Restricted Stock Units, notwithstanding that a number of the shares is held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of your participation in the Plan. Finally, you must pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your award of Restricted Stock Units, vesting of the Restricted Stock Units, settlement of Dividend Equivalents or the issuance of Shares in settlement of vested Restricted Stock Units that cannot be satisfied by the means previously described. The Company may refuse to deliver the Shares or the proceeds of the sale of Shares to you if you fail to comply with your obligations in connection with the Tax-Related Items. | |||||
| Restrictions on Resale | You agree not to sell any Shares you receive under this Award Agreement at a time when Applicable Laws, regulations, Company trading policies (including the Company’s Insider Trading Policy, a copy of which can be found on the Company’s intranet) or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
| No Retention Rights | In accepting this Award, you acknowledge that: (a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent provided in the Plan; (b) the Award is exceptional, voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, and any Dividend Equivalents thereon, or benefits in lieu of Restricted Stock Units, and any Dividend Equivalents thereon, even if Restricted Stock Units have been granted in the past; (c) all decisions with respect to future awards, if any, will be at the sole discretion of the Company; (d) the grant of Restricted Stock Units and your participation in the Plan is voluntary; (e) your participation in the Plan shall not create a right to further employment with the Employer and shall not interfere with the ability of the Employer to terminate your Service at any time; (f) the Award and your participation in the Plan will not be interpreted to form or amend an employment or service contract or relationship with the Company; (g) the future value of the underlying Shares is unknown and cannot be predicted with certainty; (h) in the event of your termination of Service (whether or not in breach of local labor laws and whether or not later found to be invalid), except in the case of your death, your right to vest in the Restricted Stock Units, and any Dividend Equivalents thereon, under the Plan, if any, will terminate effective as of the date that you are no longer actively employed and will not be extended by any notice period (e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law); the Company’s Chief Human Resources Officer, or any other person(s) appointed by the Administrator or secondary committee appointed by the Board to make determinations under this provision, as applicable, shall have the exclusive discretion to determine when you are no longer actively employed for purposes of this Award (including whether you may still be considered to be providing services while on a leave of absence); (i) the Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan or your acquisition or sale of the underlying Shares; and (j) you should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. | ||||
| If you reside outside the U.S., the following additional provisions shall apply: (k) the Award is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments; (l) the Award is not intended to replace any pension rights or compensation; (m) unless otherwise agreed with the Company, the Award and the Shares subject to the Award, and the income and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of a Subsidiary of the Company; (n) the Award is an extraordinary item that does not constitute compensation of any kind for services of any kind rendered to the Employer, the Company or any other Subsidiary of the Company, and that is outside the scope of your employment or service contract, if any; (o) no claim or entitlement to compensation or damages shall arise from forfeiture of the Award resulting from termination of Service (for any reason whatsoever and whether or not in breach of local labor laws and whether or not later found to be invalid); and (p) neither the Company, the Employer nor any of the other Subsidiary of the Company shall be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the value of the Restricted Stock Units, and any Dividend Equivalents thereon, or of any amount due to you pursuant to the vesting of the Restricted Stock Units, and any Dividend Equivalents thereon, under the Plan or the subsequent sale of the Shares acquired by you under the Plan. | |||||
| Adjustments | In the event of a stock split, a stock dividend or a similar change in Company stock, the number of Restricted Stock Units that will vest in any future installments will be adjusted accordingly, as provided for in the Plan. | ||||
| Repayment/Forfeiture | Any benefits you may receive hereunder shall be subject to repayment or forfeiture as may be required to comply with (i) any applicable listing standards of a national securities exchange adopted in accordance with Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder, (ii) recoupment requirements under any other U.S. laws or under the laws of any other jurisdiction and (iii) any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to you. | ||||
| Data Privacy Notice and Consent | a) Data Collection and Usage. The Company and the Employer collect, process and use certain personal information about you, including, but not limited to, your name, home address and telephone number, email address, date of birth, social insurance, passport or other identification number (e.g., resident registration number), salary, nationality, job title, any Shares or directorships held in the Company, details of all purchase rights or any other entitlement to Shares or equivalent benefits awarded, canceled, exercised, purchased, vested, unvested or outstanding in your favor (“Data”), for the purposes of implementing, administering and managing your participation in the Plan. The legal basis, where required, for the processing of Data is legitimate interest or your consent (where legitimate interest is not applicable). | ||||
b) Stock Plan Administration Service Providers. The Company will transfer Data to E*TRADE Financial Services, Inc. or Morgan Stanley Smith Barney, which are assisting the Company with the implementation, administration and management of the Plan (the “Designated Broker”). The Company may select different or additional service providers in the future and share Data with such other provider(s) serving in a similar manner. You may be asked to agree on separate terms and data processing practices with the Designated Broker, with such agreement being a condition to the ability to participate in the Plan. | |||||
c) International Data Transfers. The Data shall be shared with the Company and the Designated Broker as this is necessary for the purposes of implementing, administering and managing your participation in the Plan. The Company and the Designated Broker are based in the United States. Your country or jurisdiction may have different data privacy laws and protections than the United States. The Company’s legal basis, where required, for the transfer of Data is legitimate interest or your consent (where legitimate interest is not applicable). | |||||
d) Data Retention. The Company will hold and use Data only as long as is necessary to implement, administer and manage your participation in the Plan, or as required to comply with legal or regulatory obligations, including under tax, exchange control, labor and securities laws. | |||||
e) Voluntariness and Consequences of Consent Denial or Withdrawal (This section only applies where legitimate interest is not applicable as the Company’s legal basis for the data processing practices described herein). Participation in the Plan is voluntary, and you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your salary from or employment and career with the Employer will not be affected; the only consequence of refusing or you withdrawing consent is that the Company would not be able to grant the Restricted Stock Units or other equity awards to you or administer or maintain such awards. | |||||
f) Data Subject Rights. You may have a number of rights under data privacy laws in your jurisdiction. Depending on where you are based, such rights may include the right to (i) request access or copies of Data the Company processes, (ii) rectification of incorrect Data, (iii) deletion of Data, (iv) restrictions on processing of Data, (v) portability of Data, (vi) lodge complaints with competent authorities in your jurisdiction, and/or (vii) receive a list with the names and addresses of any potential recipients of Data. To receive clarification regarding these rights or to exercise these rights, you can contact the Company’s Privacy Office via the Company’s Privacy Hub intranet page. | |||||
| g) By accepting the Restricted Stock Units via the Company’s acceptance procedure, you are declaring agreement with the data processing practices described herein on the Company’s legal basis of (1) legitimate interest or (2) consent (where legitimate interest is not applicable), to the collection, processing and use of Data by the Company and the transfer of Data to the recipients mentioned above, including recipients located in countries which do not adduce an adequate level of protection from a European (or other non-U.S.) data protection law perspective, for the purposes described above. | |||||
| Finally, you understand that the Company may rely on a different basis for the processing or transfer of Data in the future and/or request that you provide another data privacy consent. If applicable, you agree that upon request of the Company or the Employer, you will provide an executed acknowledgement or data privacy consent form (or any other agreements or consents) that the Company and/or the Employer may deem necessary to obtain from you for the purpose of administering your participation in the Plan in compliance with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to participate in the Plan if you fail to provide any such consent or agreement requested by the Company and/or the Employer. | |||||
| Insider Trading Restrictions / Market Abuse Laws | You acknowledge that, depending on your or your broker’s country or the country in which Shares are listed, you may be subject to insider trading restrictions and/or market abuse laws, which may affect your ability to accept, acquire, sell or otherwise dispose of Shares, rights to Shares (e.g., Restricted Stock Units) or rights linked to the value of Shares under the Plan during such times that you are considered to have “inside information” regarding the Company (as defined by the Applicable Laws or regulations in the applicable jurisdictions or your country). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. You should keep in mind that third parties include fellow Employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company Insider Trading Policy. You understand you are responsible for ensuring compliance with any restrictions and should consult with your personal legal advisor on this matter. | ||||
| Foreign Asset / Account Reporting Requirements and Exchange Controls | Your country may have certain foreign asset and/or account reporting requirements and exchange controls which may affect your ability to acquire or hold Shares under the Plan or cash received from participating in the Plan (including from any dividends or Dividend Equivalents received or sale proceeds arising from the sale of Shares) in a brokerage or bank account outside your country. You may be required to report such accounts, assets or transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or other funds received as a result of your participation in the Plan to your country through a designated bank or broker and/or within a certain time after receipt. You acknowledge that it is your responsibility to be compliant with such regulations, and you should consult your personal legal advisor for any details. | ||||
| Severability | The provisions of this Award Agreement are severable and if any one or more provisions are determined to be invalid or otherwise enforceable, in whole or in part, the remaining provisions shall continue in effect. | ||||
| Waiver | You acknowledge that a waiver by the Company of breach of any provision of this Award Agreement shall not operate or be construed as a waiver of any other provision of this Award Agreement or of any subsequent breach by you. | ||||
| Language | You acknowledge and represent that you are proficient in the English language or have consulted with an advisor who is sufficiently proficient in English, as to allow you to understand the terms of this Award Agreement and any other documents related to the Plan. If you have received this Award Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different from the English version, the English version will control, unless otherwise prescribed by local law. | ||||
| Electronic Delivery and Acceptance | The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company. | ||||
| Governing Law | This Award Agreement will be interpreted and enforced with respect to issues of contract law under the laws of the State of Delaware (except their choice of law provisions). | ||||
| For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by this grant or this Award Agreement, the parties hereby submit to and consent to the exclusive jurisdiction of the State of California and agree that such litigation shall be conducted only in the courts of San Mateo County, California, U.S.A. or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed. | |||||
| Imposition of Other Requirements | The Company reserves the right to impose other requirements on your participation in the Plan, on the Restricted Stock Units, and any Dividend Equivalents thereon, and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. | ||||
| The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. A copy of the Plan is available on the Company’s intranet or by request to the Stock Services Department. | ||||
| This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Award. Any prior agreements, commitments or negotiations concerning this Award are superseded. This Agreement may be amended only by another written agreement between the parties. | |||||
BY SIGNING THE NOTICE OF RESTRICTED STOCK UNIT AWARD FOR EXECUTIVES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
Exhibit 10.14
EQUINIX, INC.
2021 ANNUAL INCENTIVE PLAN
(Adopted by the Compensation Committee of the Board of Directors
of the Company on February 18, 2021)
of the Company on February 18, 2021)
PLAN OBJECTIVES
Equinix, Inc., a Delaware corporation (the “Company”), offers the 2021 Annual Incentive Plan, as amended from time to time (the “2021 AIP”), to eligible employees of the Company and its subsidiaries to provide them with the opportunity to participate in Company performance. It is designed to motivate employees to achieve certain Company objectives while providing competitive total rewards for key positions and retaining top talent.
CERTAIN DEFINITIONS
For purposes of the 2021 AIP, the following terms shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun shall include the plural where the context so indicates.
AFFO – “AFFO” means adjusted funds from operations.
AFFO/Share – “AFFO/Share” means the Company’s AFFO for the year ending December 31, 2021 divided by the weighted average number of diluted shares of common stock outstanding on December 31, 2021 as set forth in the Company’s audited financial statements for the year ended December 31, 2021.
Applicable Accounting Standards – “Applicable Accounting Standards” means Generally Accepted Accounting Principles in the United States, International Financial Reporting Standards or such other accounting principles or standards as may apply to the Company’s financial statements under United States federal securities laws from time to time.
Base Salary – “Base Salary” shall mean, for a Participant other than Executive Staff, the Participant’s total base salary paid during the Performance Period, and for a Participant who is Executive Staff, the base salary rate that is approved by the Committee for the Participant with respect to the Performance Period.
Bonus Award – “Bonus Award” means a bonus award granted pursuant to the 2021 AIP entitling the Participant to cash, shares of Common Stock, or RSUs under the Equity Incentive Plan upon attainment of the Performance Goals and the satisfaction of the other terms and conditions set forth herein and in accordance with the provisions of the 2021 AIP.
Bonus Award Payment – “Bonus Award Payment” means the amount payable to a Participant with respect to the Participant’s Bonus Award, as determined by the Committee in accordance with the section of the 2021 AIP with the heading “Payment of Awards.”
Document Number: 13711
Bonus Target – “Bonus Target” means a percentage of a Participant’s Base Salary established by the Committee.
Bonus Target Amount – “Bonus Target Amount” means an amount equal to the product of (a) the Participant’s Base Salary, multiplied by (b) the Participant’s Bonus Target.
Code – “Code” means the Internal Revenue Code of 1986, as amended.
Committee–“Committee” means the Compensation Committee with respect to the administration of the 2021 AIP with respect to Participants who are Executive Staff and means a committee consisting of the Chief Executive Officer of the Company with respect to Participants who are not Executive Staff.
Compensation Committee – “Compensation Committee” means the Compensation Committee of the Board of Directors of the Company.
Common Stock – “Common Stock” means the common stock, par value $0.001 per share, of the Company.
Eligible Individual – “Eligible Individual” has the meaning ascribed to such term under the headings “Eligibility/Participation; Eligible Employee.
Equity Incentive Plan – “Equity Incentive Plan” means the Equinix, Inc. 2020 Equity Incentive Plan, as amended, or any successor plan thereto.
Executive Staff – “Executive Staff” means an Eligible Individual who has been designated by the Compensation Committee as a member of the Executive Staff.
Maximum Goal Factor – “Maximum Goal Factor” means a percentage established by the Committee with respect to a Bonus Award and Performance Period and representing the maximum percentage that may be determined to have been attained as a Performance Goal Attainment Factor.
Participant – “Participant” means an Eligible Individual selected by the Committee to be granted a Bonus Award hereunder.
Participation Period Factor – “Participation Period Factor” means a fraction, the numerator of which is the number of days the Participant was actively employed with the Company (or Company subsidiary) during the Performance Period or employed in a specified position, as applicable, and the denominator of which is the number of days contained in the Performance Period. The Committee, in its sole discretion, may adjust the Participation Period Factor.
Performance Criteria – “Performance Criteria” means any criteria that the Committee determines in its sole discretion, including, without limitation, individual performance or, with respect to the Company, a subsidiary of the Company, or any business unit thereof, any one or more or any combination of the following: AFFO, AFFO/Share, net earnings or net income (before or after taxes), operating income, earnings per share, net sales or revenue growth, adjusted net income,
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net operating profit or income, return measures (including, but not limited to, return on assets, capital, invested capital, equity, sales, or revenue), cash flow (including, but not limited to, operating cash flow, free cash flow, cash flow return on equity, and cash flow return on investment), earnings before or after taxes, interest, depreciation, and/or amortization, gross or operating margins, productivity ratios, share price (including, but not limited to, growth measures and total stockholder return), cost control, margins, operating efficiency, market share, customer satisfaction or employee satisfaction, working capital, management development, succession planning, taxes, depreciation and amortization or economic value added.
Performance Period – “Performance Period” means the fiscal year of the Company over which attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to, and payment of, a Bonus Award. For purposes of the 2021 AIP, the Performance Period will begin on January 1, 2021 and end on December 31, 2021. The Committee, in its sole discretion, may adjust the duration of the Performance Period at any time before the term of the originally established Performance Period has expired.
Performance Goal – “Performance Goal” has the meaning ascribed to such term under the headings “Bonus Awards; Performance Goals.”
Performance Goal Attainment Factor – “Performance Goal Attainment Factor” means a percentage ranging from 0% to the Maximum Goal Factor representing the rate at which the Performance Goals have been attained, as determined by the Committee.
RSUs – “RSUs” mean restricted stock units under the Equity Incentive Plan, which shall be fully vested upon their date of grant and shall be paid in shares of the Company’s Common Stock pursuant to the “Timing of Payment” and other provisions of the section below with the heading “Payment of Awards.” For avoidance of doubt, for purposes of Bonus Awards payable in RSUs, payment of the Bonus Award hereunder shall mean grant and payment of such RSUs in the form of Common Stock.
Tax-Related Items - “Tax-Related Items” means all income tax (including U.S. federal, state and local tax and/or non-U.S. tax), social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to a Participant’s participation in the 2021 AIP and legally applicable to the Participant.
U.S. Senior Staff - “U.S. Senior Staff” means U.S. senior staff at level Senior Director and above in such roles at the end of the first quarter of fiscal 2021.
ELIGIBILITY/PARTICIPATION
Eligible Employees. The Committee, in its sole discretion, may grant a Bonus Award relating to a given Performance Period to one or more individuals meeting the requirements set forth in this section, as the Committee selects (“Eligible Employees”). All full-time and part-time employees of the Company and employees of the Company’s subsidiaries, other than commissioned sales employees and employees participating in Management by Objectives Plans, are eligible to be selected to receive a grant of a Bonus Award under the 2021 AIP. For avoidance of doubt,
Document Number: 13711
employees can only participate in one cash incentive plan at one time. Employees who are new hires are eligible to be selected to participate in the 2021 AIP as of their hire date, except that an employee with a start date on or after October 1st (or such other date established by the Committee at the commencement of the Performance Period) following the commencement of the Performance Period will not be eligible to participate in the 2021 AIP with respect to the ongoing Performance Period. If Participant begins employment with the Company following the commencement of the Performance Period, the amount of a Bonus Award Payment, if any, that becomes payable will be pro-rated by multiplying the Bonus Award Payment by the Participation Period Factor. Eligibility to receive a Bonus Award under the 2021 AIP does not guarantee that the eligible individual will actually receive a Bonus Award. Participation in the 2021 AIP does not imply or guarantee participation in any future annual incentive plans.
Bonus Award Payment Eligibility Requirements. To be eligible to receive the payment of a Bonus Award, a Participant must be employed by the Company or a subsidiary on the date when the Bonus Award is paid pursuant to the section below with the heading “Payment of Awards.”
A Participant may be eligible to receive a pro-rated Bonus Award in the event of the Participant’s death, disability, or approved leave of absence. In the case of a deceased Participant, any such Bonus Award will be paid to the Participant’s estate.
BONUS AWARDS
Award Terms. At the time a Bonus Award is granted pursuant to this section, the Committee shall specify (a) the Participant’s Bonus Target, (b) the Maximum Goal Factor that may be attained upon the achievement of the Performance Goals established hereunder, (c) the Performance Goal and any applicable adjustments and (d) a performance incentive pool amount, if any. A Participant’s Bonus Target may be modified from time to time, for example, due to changes in the Company’s financials or salary changes, until the end of the Performance Period.
Performance Goals. For the 2021 AIP, the Performance Goals, which will be based on the following two criteria, will be established prior to the end of the first quarter of the Performance Period by the Compensation Committee based on the operating plan approved by the Board for the Performance Period (the “Operating Plan”):
•Revenue
•AFFO/Share
Each Performance Goal will be weighted equally for purposes of determining the amount payable under the Bonus Award.
The AIP links directly to the GPS Performance system. Bonus Awards are linked to a Participant’s impact and value and are intended to reward achievement of key results at both the Company and individual level. A Participant’s performance will also be measured by a talent assessment and calibration process. Executive Staff are capped at 100% of their Bonus Target.
Document Number: 13711
All other Participants may receive between 0% and 150% of their Bonus Target based upon the attainment of the Performance Goals. The degree to which a Participant achieves his/her Bonus Target amount (e.g., less than, equal to, or greater than the Bonus Target amount) represents the degree to which both the Participant and the Company achieve the Performance Goals.
Adjustments to Performance Goal Attainment. The Committee, in its sole discretion, may provide that one or more objectively determinable adjustments shall be made to the determination of the attainment of one or more of the Performance Goals. Such adjustments may include, but are not limited to, one or more of the following: (i) items related to a change in Applicable Accounting Standards; (ii) items relating to financing activities; (iii) expenses for restructuring or productivity initiatives; (iv) other non-operating items; (v) items related to acquisitions or joint ventures; (vi) items attributable to the business operations of any entity acquired by the Company during the Performance Period; (vii) items related to the sale or disposition of a business or segment of a business; (viii) items related to discontinued operations that do not qualify as a segment of a business under Applicable Accounting Standards; (ix) items attributable to any stock dividend, stock split, combination or exchange of stock occurring during the Performance Period; (x) any other items of significant income or expense which are determined to be appropriate adjustments; (xi) items relating to unusual or extraordinary corporate transactions, events or developments, (xii) items related to amortization of acquired intangible assets; (xiii) items that are outside the scope of the Company’s core, on-going business activities; (xiv) items related to acquired in-process research and development; (xv) items relating to changes in tax laws; (xvi) items relating to major licensing or partnership arrangements; (xvii) items relating to asset impairment charges; (xviii) items relating to gains or losses for litigation, arbitration and contractual settlements; (xix) items attributable to expenses incurred in connection with a reduction in force or early retirement initiative; (xx) items relating to foreign exchange or currency transactions and/or fluctuations; or (xxi) items relating to any other unusual, infrequently occurring or nonrecurring events or changes in applicable law or business conditions. The Committee may make such adjustments to the determination of attainment of one or more of the Performance Goals as the Committee in its sole discretion deems appropriate.
Adjustments for Changes in Employment Position. The amount of a Bonus Award will be pro-rated based on the number of days a Participant serves in a given position during the Performance Period. For example, if a Participant is promoted from Senior Manager to Director, the amount of his/her Bonus Award will be calculated based upon the number of days the Participant served in each position. As another example, if a Participant is promoted from a non-commissioned position to a commissioned sales position, the amount of his/her Bonus Award will be pro-rated based on the number of days worked in a non-commissioned position. If, in connection with a Participant’s change in employment positions, the Bonus Target allocated to the new position is different than the Bonus Target allocated to the former position, then the amount of the Bonus Award Payment, if any, that becomes payable will be equal to the sum of (a) the Bonus Award Payment calculated based on the Bonus Target applicable prior to the change in the employment position, multiplied by the Participation Period Factor, plus (b) the Bonus Award Payment calculated based on the Bonus Target applicable following the change in the employment position, multiplied by the Participation Period Factor.
Document Number: 13711
Determining Performance. For the 2021 AIP, the aggregate amount that becomes payable under a Bonus Award with respect to each Performance Goal will be determined based on the tables below. Values between levels identified will be interpolated based on a line between the two nearest identified points. For instance, if the attainment of the AFFO/Share Performance Goal is 98% of the target level performance, 60% of the amount that becomes payable with respect to the AFFO/Share Performance Goal based on attainment at the target level will become payable.
| Metric | Weighting | Determination | Threshold | Target/Max | |||||||||||||
| Revenue | 50% | Performance | 95% | 100% | |||||||||||||
| Payout | 0% | 100% | |||||||||||||||
| Metric | Weighting | Determination | Threshold | Target | Max | ||||||||||||
| AFFO/Share | 50% | Performance | 95% | 100% | 103% | ||||||||||||
| Payout | 0% | 100% | 140% | ||||||||||||||
Minimum Goals. No Bonus Award will become payable if either of the Performance Goals is attained at 95% of target or a lower level.
PAYMENT OF AWARDS
Performance Goal Attainment Factor Determination. Following the completion of the Performance Period, the Committee shall determine whether the applicable Performance Goals were achieved for the Performance Period and the Performance Goal Attainment Factor with respect to Bonus Awards in its sole discretion.
Performance Goal Attainment Factor Modifications. In determining the amount payable to a Participant with respect to the Participant’s Bonus Award, the Committee shall retain its sole discretion to modify the Performance Goal Attainment Factors (resulting in a reduction, an increase, or elimination (including to zero) of, the amount otherwise payable to the Participant under the Bonus Award) to take into account recommendations of the Chief Executive Officer of the Company or additional factors including factors, if any, that the Committee may deem relevant to the assessment of individual or corporate performance for the Performance Period.
Timing of Payment. Unless otherwise determined by the Committee, the Bonus Award shall be paid as soon as practicable after the Committee determines that the Performance Goals specified for such Bonus Award were in fact satisfied. It is intended that payment will be made no later than required to ensure that no amount paid or to be paid hereunder shall be subject to the provisions of Section 409A(a)(1)(B) of the Code and all payments are intended to be eligible for the short-term deferral exception to Section 409A of the Code.
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Form of Payment; Tax Withholding.
Payments to U.S. Senior Staff. Each Bonus Award to a U.S. Senior Staff member shall be paid in the form of RSUs under the Equity Incentive Plan, with the number of RSUs granted equal to the Bonus Award Payment otherwise payable to such individual hereunder (in U.S. dollars) divided by the closing price of the Company’s Common Stock on the date of payment of the Bonus Award (rounded down to the nearest whole number of RSUs), and subject to all required Tax-Related Items withholding upon payment of such RSUs in accordance with the “Timing of Payment” provisions above.
Payments to All Other Staff. Each Bonus Award to a Participant who is not a U.S. Senior Staff member shall be paid in cash in a single lump sum. The Company shall withhold all required Tax-Related Items from the Bonus Award Payment. The Bonus Award Payment will be determined by the Company in U.S. dollars, but may be paid to Participants outside the United States in local currency, following conversion of the amount payable using an exchange rate selected by the Company, in its sole discretion. Alternatively, the Bonus Award may be paid in the form of Common Stock or in a combination of cash and Common Stock, as determined by the Committee. Bonus Award Payments made in Common Stock shall be made in accordance with the provisions of the Equity Incentive Plan.
Employment Terminations. If a Participant’s employment with the Company (or any of its subsidiaries, as applicable) is terminated for any reason other than death or disability prior to payment of any Bonus Award Payment, all of the Participant’s rights under the 2021 AIP shall terminate and the Participant shall not have any right to receive any further payments with respect to any Bonus Award granted under the 2021 AIP.
PLAN ADMINISTRATION
Committee. The 2021 AIP shall be administered by the Compensation Committee of the Board with respect to Participants who are Executive Staff and shall be administered by a committee consisting of the Chief Executive Officer with respect to Participants who are not Executive Staff.
Duties and Powers of Committee. It shall be the duty of the Committee to conduct the general administration of the 2021 AIP in accordance with its provisions. The Committee shall have the power to interpret the 2021 AIP, and to adopt such rules for the administration, interpretation, and application of the 2021 AIP as are consistent therewith and to interpret, amend or revoke any such rules. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the 2021 AIP.
Determinations of the Committee or the Board. All actions taken and all interpretations and determinations made by the Committee or the Board shall be final and binding upon all Participants, the Company, and all other interested persons. No members (or former members) of the Committee or the Board shall be personally liable for any action, inaction, determination or interpretation made in good faith with respect to the 2021 AIP or any Bonus Award, and all
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members of the Committee and the Board shall be fully protected by the Company in respect of any such action, determination or interpretation.
AMENDMENT, SUSPENSION OR TERMINATION OF 2021 AIP
The 2021 AIP is discretionary in nature, and the Committee (or the Board) may suspend, modify, or terminate the 2021 AIP at any time or from time to time without advance notice.
The 2021 AIP is a statement of the Committee’s intentions and does not constitute a guarantee that any particular amount of compensation or bonus will be paid. It does not create a contractual relationship or any contractually enforceable rights between the Company and any Participant.
MISCELLANEOUS
Recovery of Erroneously Awarded Compensation. If the Participant is now or is hereafter subject to the Company’s Policy on Recoupment of Incentive Compensation (the “Compensation Recoupment Policy”), any similar policy providing for the recovery of Bonus Awards, proceeds, or payments to a Participant in the event of fraud or as required by applicable laws or governance considerations or in other similar circumstances, then this Bonus Award, and any payments therefrom, are subject to potential recovery by the Company under the circumstances set out in the Compensation Recoupment Policy or such other similar policy as in effect from time to time or as otherwise determined appropriate by the Compensation Committee.
No Employment Guarantee. Nothing in the 2021 AIP shall interfere with or limit in any way the right of the Company or its subsidiary or affiliate, as applicable, to terminate any Participant’s employment or service at any time, with or without cause. Except to the extent provided by applicable law or pursuant to a written agreement between the Participant and the Company or its subsidiary or affiliate, employment with the Company or its subsidiary or affiliates is on an at-will basis only. Nothing in this 2021 AIP shall constitute or shall be construed as an employment agreement between a Participant and the Company.
General Creditor Status. Each Bonus Award that may become payable under the 2021 AIP shall be paid solely from the general assets of the Company. No amounts awarded or accrued under the 2021 AIP shall be funded, set aside, subject to interest payment or otherwise segregated prior to payment of a Bonus Award. The obligation to pay Bonus Awards under the 2021 AIP shall at all times be an unfunded and unsecured obligation of the Company. Participants shall have the status of general creditors of the Company. Any Bonus Award payable under the 2021 AIP is voluntary and occasional and does not create any contractual or other right to receive grants in future years or benefits in lieu of such awards.
Governing Law; Venue. The 2021 AIP and all Bonus Awards shall be construed in accordance with and governed by the laws of the State of California, without regard to their conflict-of-law provisions or principles that might otherwise refer construction or interpretation of the 2021 AIP to the substantive law of another jurisdiction. Unless otherwise provided in a Bonus Award,
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recipients of a Bonus Award under the 2021 AIP are deemed to submit to the exclusive jurisdiction and venue of the Federal or state courts of the State of California, to resolve any and all issues that may arise out of or relate to the 2021 AIP or any related Bonus Award.
Not Pensionable Salary. Any payment for Bonus Awards made under the 2021 AIP will not form part of a Participant’s pensionable salary.
Nonalienation of Benefits. Except as expressly provided herein, no Participant or his beneficiaries shall have the power or right to transfer, anticipate, or otherwise encumber the Participant’s interest under the 2021 AIP. The provisions of the 2021 AIP shall inure to the benefit of each Participant and his beneficiaries, heirs, executors, administrators, or successors in interest.
Severability. If any provision of this 2021 AIP is held invalid or unenforceable, the invalidity or unenforceability shall not affect the remaining parts of the 2021 AIP, and the 2021 AIP shall be enforced and construed as if such provision had not been included.
No Advice Regarding Bonus Award. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant's participation in the 2021 AIP. The Participant should consult with his or her own personal tax, legal and financial advisors regarding participation in the 2021 AIP before taking any action related to the 2021 AIP.
Section 409A. This 2021 AIP may be amended at any time, without the consent of any party, to avoid the application of Section 409A of the Code in a particular circumstance or that is necessary or desirable to satisfy any of the requirements under Section 409A of the Code, but the Company shall not be under any obligation to make any such amendment. Nothing in the 2021 AIP shall provide a basis for any person to take action against the Company or any subsidiary or affiliate based on matters covered by Section 409A of the Code, including the tax treatment of any amount paid or Bonus Award made under the 2021 AIP, and neither the Company nor any of its subsidiaries or affiliates shall under any circumstances have any liability to any Participant or his estate or any other party for any taxes, penalties or interest due on amounts paid or payable under the 2021 AIP, including taxes, penalties or interest imposed under Section 409A of the Code.
Effective Date. The 2021 AIP shall be effective as of January 1, 2021 (the “Plan Effective Date”). The Committee may grant Bonus Awards at any time on or after the Plan Effective Date.
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Exhibit 21.1
Subsidiaries of Equinix, Inc.
Entity | Jurisdiction | ||||
| Equinix Canada Holdings Limited | Canada | ||||
| Equinix (Australia) Enterprises Holdings Pty Limited | Australia | ||||
| Equinix (Australia) Enterprises Pty Limited | Australia | ||||
| Equinix Australia Pty Limited | Australia | ||||
| McLaren Pty Limited | Australia | ||||
| Metronode (ACT) Pty Limited | Australia | ||||
| Metronode (NSW) Pty Ltd | Australia | ||||
| Metronode C1 Pty Limited | Australia | ||||
| Metronode Group Pty Limited | Australia | ||||
| Metronode Investments Pty Limited | Australia | ||||
| Metronode M2 Pty Ltd | Australia | ||||
| Metronode P2 Pty Limited | Australia | ||||
| MGH Pegasus Pty Ltd | Australia | ||||
| Equinix Australia National Pty. Ltd. | Australia | ||||
| Metronode S2 Pty Ltd | Australia | ||||
| Metronode New Zealand Limited | New Zealand | ||||
| MGH Bidco Pty Limited | Australia | ||||
| MGH Finco Pty Limited | Australia | ||||
| MGH Holdco Pty Ltd | Australia | ||||
| McLaren Unit Trust | Australia | ||||
| Equinix South America Holdings, LLC | Delaware, U.S. | ||||
| Equinix do Brasil Soluções de Tecnologia em Informática Ltda. | Brazil | ||||
| Equinix do Brasil Telecomunicações Ltda. | Brazil | ||||
| Equinix Colombia, Inc. | British Virgin Islands | ||||
| Equinix (Bulgaria) Data Centers EOOD | Bulgaria | ||||
| Equinix (Canada) Enterprises Ltd. | Canada | ||||
| Equinix Canada (TR3) Ltd. | Canada | ||||
| Equinix Canada Ltd. | Canada | ||||
| Equinix (Ottawa) Government Ltd. | Canada | ||||
| CHI 3, LLC | Delaware, U.S. | ||||
| DCI Management, Inc. | Delaware, U.S. | ||||
| DCI Tech Holdings Infomart, LLLP | Delaware, U.S. | ||||
| Equinix (EMEA) Management, Inc. | Delaware, U.S. | ||||
| Equinix (US) Enterprises, Inc. | Delaware, U.S. | ||||
| Equinix LLC | Delaware, U.S. | ||||
| Equinix Pacific LLC | Delaware, U.S. | ||||
| Equinix Professional Services, Inc. | Delaware, U.S. | ||||
| Equinix Government Solutions LLC | Delaware, U.S. | ||||
| Equinix RP II LLC | Delaware, U.S. | ||||
| Infomart Dallas GP, LLC | Delaware, U.S. | ||||
| Infomart Dallas, LP | Delaware, U.S. | ||||
| Infomart Holdings, LLC | Delaware, U.S. | ||||
Entity | Jurisdiction | ||||
| Infomart Venture, LLC | Delaware, U.S. | ||||
| LA4, LLC | Delaware, U.S. | ||||
| Moran Road Partners, LLC | Delaware, U.S. | ||||
| NY2 Hartz Way, LLC | Delaware, U.S. | ||||
| Equinix (Velocity) Holding Company | Delaware, U.S. | ||||
| SV1, LLC | Delaware, U.S. | ||||
| Switch & Data Facilities Company LLC | Delaware, U.S. | ||||
| Switch & Data LLC | Delaware, U.S. | ||||
| Switch & Data MA One LLC | Delaware, U.S. | ||||
| Switch & Data WA One LLC | Delaware, U.S. | ||||
| Switch & Data/NY Facilities Company LLC | Delaware, U.S. | ||||
| Switch and Data CA Nine LLC | Delaware, U.S. | ||||
| Switch And Data NJ Two LLC | Delaware, U.S. | ||||
| Switch and Data Operating Company LLC | Delaware, U.S. | ||||
| CHI 3 Procurement, LLC | Illinois, U.S. | ||||
| VDC I, LLC | Delaware, U.S. | ||||
| VDC II, LLC | Delaware, U.S. | ||||
| VDC V, LLC | Delaware, U.S. | ||||
| VDC IV, LLC | Delaware, U.S. | ||||
| CHI 8, LLC | Delaware, U.S. | ||||
| Equinix Hyperscale (LP) LLC | Delaware, U.S. | ||||
| Equinix Hyperscale (GP) LLC | Delaware, U.S. | ||||
| Equinix Services, Inc. | Delaware, U.S. | ||||
| PacketHost, Inc., | Philippines | ||||
| Packet Host, Ltd. | Japan | ||||
| Equinix Montreal Ltd. | Canada | ||||
| Equinix (Finland) Enterprises Oy | Finland | ||||
| Equinix (Finland) Oy | Finland | ||||
| Equinix (France) Enterprises SAS | France | ||||
| Equinix (Real Estate) Holdings SC | France | ||||
| Equinix (Real Estate) SCI | France | ||||
| Equinix France SAS | France | ||||
| Equinix (Germany) Enterprises GmbH | Germany | ||||
| Equinix (Germany) GmbH | Germany | ||||
| Equinix (Real Estate) GmbH | Germany | ||||
| Upminster GmbH | Germany | ||||
| Equinix Hyperscale 1 (FR9) GmbH | Germany | ||||
| Equinix Hyperscale 1 (FR11) GmbH | Germany | ||||
| Equinix (Hong Kong) Enterprises Limited | Hong Kong | ||||
| Equinix Hong Kong Limited | Hong Kong | ||||
| Equinix (Ireland) Enterprises Limited | Ireland | ||||
| Equinix (Ireland) Limited | Ireland | ||||
| Equinix (Italia) Enterprises S.r.l. | Italy | ||||
| Equinix Italia S.r.l. | Italy | ||||
| Open Hub Med Societa Consortile a responsabilita limitata | Italy | ||||
| Equinix (Japan) Enterprises K.K. | Japan | ||||
Entity | Jurisdiction | ||||
| Equinix (Japan) Technology Services K.K. | Japan | ||||
| Equinix Japan K.K (in Kanji) | Japan | ||||
| Equinix Muscat LLC | Oman | ||||
| Equinix Middle East Services LLC | Oman | ||||
Equinix (China) Investment Holding Co., Ltd (亿利互连(中国)投资有限公司) | People’s Republic of China | ||||
Equinix Information Technology (Shanghai) Co., Ltd. (亿利互连信息技术(上海)有限公司) | People’s Republic of China | ||||
Equinix WGQ Information Technology (Shanghai) Co., Ltd. (亿利互连(上海)通讯科技有限公司) | People’s Republic of China | ||||
Equinix YP Information Technology (Shanghai) Co., Ltd. (亿利互连数据系统(上海)有限公司) | People’s Republic of China | ||||
Gaohong Equinix (Shanghai) Information Technology Co., Ltd (高鸿亿利(上海)信息技术有限公司) | People’s Republic of China | ||||
| Equinix India Private Limited | India | ||||
| Equinix (Poland) Technology Services sp. z o.o. | Poland | ||||
| Equinix (Poland) Enterprises sp. z o.o. | Poland | ||||
| Equinix (Poland) sp. z o.o. | Poland | ||||
| Equinix (Portugal) Data Centers, S.A. | Portugal | ||||
| Equinix II (Portugal) Enterprises Data Centers, Unipessoal Lda | Portugal | ||||
| Equinix Korea LLC | Republic of Korea | ||||
| Equinix (Singapore) Enterprises Pte. Ltd. | Singapore | ||||
| Equinix Asia Pacific Holdings Pte. Ltd. | Singapore | ||||
| Equinix Asia Pacific Pte. Ltd. | Singapore | ||||
| Equinix Singapore Holdings Pte. Ltd. | Singapore | ||||
| Equinix Singapore Pte. Ltd. | Singapore | ||||
| Equinix (Spain) Enterprises, S.L.U. | Spain | ||||
| Equinix (Spain), S.A.U. | Spain | ||||
| Equinix (Sweden) AB | Sweden | ||||
| Equinix (Sweden) Enterprises AB | Sweden | ||||
| Equinix (Switzerland) Enterprises GmbH | Switzerland | ||||
| Equinix (Switzerland) GmbH | Switzerland | ||||
| EMEA Hyperscale 1 C.V. | The Netherlands | ||||
| Equinix Hyperscale 1 Holdings B.V. | The Netherlands | ||||
| Equinix (EMEA) Acquisition Enterprises B.V. | The Netherlands | ||||
| Equinix (EMEA) B.V. | The Netherlands | ||||
| Equinix (Netherlands) B.V. | The Netherlands | ||||
| Equinix (Netherlands) Enterprises B.V. | The Netherlands | ||||
| Equinix (Netherlands) Holdings B.V. | The Netherlands | ||||
| Virtu Secure Webservices B.V. | The Netherlands | ||||
| Tussenlanen B.V. | The Netherlands | ||||
| Equinix (EMEA) Hyperscale Services B.V. | The Netherlands | ||||
| Equinix Turkey Data Merkezi Üretim Inşaat Sanayi ve Ticaret Anonim Şirketi | Turkey | ||||
| Equinix Turkey Enterprises Data Merkezi Üretim Inşaat Sanayi ve Ticaret Anonim Şirketi | Turkey | ||||
| Equinix Middle East FZ-LLC | United Arab Emirates | ||||
| Equinix Hyperscale 1 (LD11) Limited | United Kingdom | ||||
Entity | Jurisdiction | ||||
| Equinix (Services) Limited | United Kingdom | ||||
| Equinix (UK) Enterprises Limited | United Kingdom | ||||
| Equinix (UK) Limited | United Kingdom | ||||
| Equinix Hyperscale 1 (France) Holdings SAS | France | ||||
| Equinix Hyperscale 1 (PA9) SAS | France | ||||
| Equinix Hyperscale 1 (PA8) SAS | France | ||||
| Equinix Hyperscale 1 (UK) Financing Limited | United Kingdom | ||||
| Equinix Hyperscale 1 (LD13) ltd. | United Kingdom | ||||
| Equinix Hyperscale 1 (DB5) Limited | Ireland | ||||
| Equinix (ML-A) S.r.l. | Italy | ||||
| Equinix (MA5) Limited | United Kingdom | ||||
| Equinix (Poland) Services sp. z o.o | Poland | ||||
| Equinix (HE-A) Oy | Finland | ||||
| Equinix (PA-C) SAS | France | ||||
| Equinix Hyperscale 1 (TY14) TMK | Japan | ||||
| Equinix Hyperscale 1 (OS2) TMK | Japan | ||||
| Equinix Hyperscale 1 (TY12)TMK | Japan | ||||
| Equinix Mexico Holdings, S. de R.L. de C.V. | Mexico | ||||
| Equinix MX Sales, S. de R.L. de C.V. | Mexico | ||||
| Equinix Apodaca, S. de R.L. de C.V. | Mexico | ||||
| Equinix Queretaro, S. de R.L. de C.V. | Mexico | ||||
| Equinix MX Services, S.A. de C.V. | Mexico | ||||
| Contrato de Fideicomiso de Administracion Revocable de Bienes Inmuebles | Mexico | ||||
| Equinix APAC 1 Hyperscale Holdings 1 Pte. Ltd. | Singapore | ||||
| Equinix APAC 1 Hyperscale Holdings 2 Pte. Ltd. | Singapore | ||||
| Equinix Hyperscale 1 GK | Japan | ||||
| Equinix Hyperscale 1 (TY12) GK | Japan | ||||
| Equinix Hyperscale 1 (TY14) GK | Japan | ||||
| Equinix Hyperscale 1 (OS2) GK | Japan | ||||
| Equinix (FR-A) GmbH | Germany | ||||
| Equinix Hyperscale 1 (Japan) TMK | Japan | ||||
| Equinix (FR-B) GmbH | Germany | ||||
| Equinix (PA-A) SAS | France | ||||
| Equinix (PA-B) SAS | France | ||||
| Equinix Hyperscale (GP) Pte. Ltd. | Singapore | ||||
| Equinix APAC Hyperscale 1 (LP) LLC | Delaware, U.S. | ||||
| Equinix (APAC) Hyperscale Services Pte. Ltd. | Singapore | ||||
| APAC 1 Hyperscale LP | Singapore | ||||
| Equinix APAC 1 Hyperscale Holdings Pte. Ltd. | Singapore | ||||
| Equinix APAC Hyperscale 2 (LP), LLC | Delaware, U.S. | ||||
| Equinix Hyperscale 2 (GP) LLC | Delaware, U.S. | ||||
| Equinix Hyperscale 2 (LP) LLC | Delaware, U.S. | ||||
| Equinix Australia Real Estate Pty Ltd | Australia | ||||
| Equinix APAC 2 Hyperscale (GP) Pte. Ltd. | Singapore | ||||
| Equinix (FR-C) GmbH | Germany | ||||
| Equinix Saudi for Information Technology LLC | Saudi Arabia | ||||
Entity | Jurisdiction | ||||
| Equinix Hyperscale 2 IL5 Data Merkezi Uretim Insaat Sanayi Ve Ticaret Limited Sirketi | Turkey | ||||
| Equinix Hyperscale 1 (Turkey) Holdings B.V. | Netherlands | ||||
Exhibit 31.1
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Charles Meyers, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Equinix, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
/s/ Charles Meyers
Charles Meyers
Chief Executive Officer and President
Dated: April 30, 2021
Exhibit 31.2
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Keith D. Taylor, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Equinix, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
/s/ Keith D. Taylor
Keith D. Taylor
Chief Financial Officer
Dated: April 30, 2021
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Equinix, Inc. (the “Company”) on Form 10-Q for the period ending March 31, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Charles Meyers, Chief Executive Officer and President of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
/s/ Charles Meyers
Charles Meyers
Chief Executive Officer and President
April 30, 2021
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Equinix, Inc. (the “Company”) on Form 10-Q for the period ending March 31, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Keith D. Taylor, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
/s/ Keith D. Taylor
Keith D. Taylor
Chief Financial Officer
April 30, 2021
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