Exhibit 10.35
CHANGE IN CONTROL SEVERANCE
AGREEMENT
THIS AGREEMENT is entered into as of
December 19, 2008 (the “Effective Date”) by and
between Eric Schwartz (the “Executive”) and EQUINIX,
INC. , a Delaware corporation (the
“Company”).
1. Term of
Agreement.
Except to the extent renewed as set
forth in this Section 1, this Agreement shall terminate the
earlier of December 31, 2011 (the “Expiration
Date”) or the date the Executive’s employment with the
Company terminates for a reason other than a Qualifying Termination
as described in Section 4(d); however, if a definitive
agreement relating to a Change in Control has been signed by the
Company on or before December 31, 2011, then this Agreement
shall remain in effect through the earlier of:
(a) The date the Executive’s
employment with the Company terminates for a reason other than a
Qualifying Termination as described in Section 4(d)
or
(b) The date the Company has met all
of its obligations under this Agreement following a termination of
the Executive’s employment with the Company for a reason
described in Section 4(d).
This Agreement shall renew
automatically and continue in effect for three year periods
measured from the initial Expiration Date, unless the Company
provides Executive notice of non-renewal at least six months prior
to the date on which this Agreement would otherwise
expire.
2. Severance
Payment.
(a) Severance Benefit. If the
Executive is subject to a Qualifying Termination, then the Company
shall pay the Executive 100% of his or her annual base salary and
target bonus (at the annual rate in effect immediately prior to the
actions that resulted in the Qualifying Termination). Such
severance benefit shall be paid in accordance with the
Company’s standard payroll procedures. The Executive will
receive his or her severance payment in a cash lump-sum which will
be made within ten (10) business days of the latest of the
following dates:
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(i)
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the date of
Executive’s Qualifying Termination;
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(ii)
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the date of the
Company’s receipt of the Executive’s executed General
Release; and
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(iii)
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the expiration
of any rescission period applicable to the Executive’s
executed General Release.
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(b) Health Care Benefit. If
the Executive is subject to a Qualifying Termination, and if the
Executive elects to continue his or her health insurance coverage
under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) following the termination of his or her
employment, then the Company shall pay the Executive’s
monthly premium under COBRA until the earliest of (i) the
close of the twelve-month period following cessation of his or her
employment or (ii) the expiration of the Executive’s
continuation coverage under COBRA.
(c) General Release. Any
other provision of this Agreement notwithstanding,
Subsections (a) and (b) above shall not apply unless the
Executive (i) has executed a general release (in a form
prescribed by the Company) of all known and unknown claims that he
or she may then have against the Company or persons affiliated with
the Company and (ii) has agreed not to prosecute any legal
action or other proceeding based upon any of such claims. The
release must be in the form prescribed by the Company, without
alterations. The Company will deliver the form to the Executive
within 30 days after the Executive’s Separation. The
Executive must execute and return the release within 21 days from
receipt of the form.
(d) Section 409A. For
purposes of Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), if the Company determines that
Executive is a “specified employee” under
Section 409A(a)(2)(B)(i) of the Code at the time of a
Separation, then (i) the severance benefits under
Section 2(a), to the extent that they are subject to
Section 409A of the Code, will commence during the seventh
month after the Executive’s Separation and (ii) any
amounts that otherwise would have been paid during the first six
months after a Separation will be paid in a lump sum on the
earliest practicable date permitted by Section 409A(a)(2) of
the Code.
3. Covenants.
(a) Non-Solicitation. During
the Executive’s employment with the Company and during the
twelve-month period following his or her cessation of employment,
the Executive shall not directly or indirectly, personally or
through others, solicit or attempt to solicit the employment of any
employee or consultant of the Company or any of the Company’s
affiliates, whether on the Executive’s own behalf or on
behalf of any other person or entity. The Executive and the Company
agree that this provision is reasonably enforced as to any
geographic area in which the Company conducts its
business.
(b) Non-Competition. The
Executive agrees that, during his or her employment with the
Company, he or she shall not engage in any other employment,
consulting or other business activity (whether full-time or
part-time) that would create a conflict of interest with the
Company.
(c) Cooperation and
Non-Disparagement. The Executive agrees that, during the
twelve-month period following his or her cessation of employment,
he or she shall cooperate with the Company in every reasonable
respect and shall use his or her best efforts to assist the Company
with the transition of Executive’s duties to his or her
successor. The Executive further agrees that, during this
twelve-month period, he or she shall not in any way or by any means
disparage the Company, the members of the Company’s Board of
Directors or the Company’s officers and employees.
4. Definitions.
(a) Definition of
“Cause.” For all purposes under this Agreement,
“Cause” shall mean the Executive’s unauthorized
use or disclosure of trade secrets which causes material harm to
the Company, the Executive’s conviction of, or a plea of
“guilty” or “no contest” to, a felony, or
the Executive’s gross misconduct.
(b) Definition of “Change
in Control.” For all purposes under this Agreement,
“Change in Control” shall have the meaning ascribed to
such term in Section 19.4 of the Company’s 2000 Equity
Incentive Plan.
(c) Definition of “Good
Reason.” For all purposes under this Agreement,
“Good Reason” shall mean (i) a material diminution
in the Executive’s authority, duties or responsibilities,
provided, however , if by virtue of the Company being
acquired and made a division or business unit of a larger entity
following a Change in Control, Executive retains substantially
similar authority, duties or responsibilities for such division or
business unit of the acquiring corporation but not for the
entire acquiring corporation, such reduction in authority, duties
or responsibilities shall not constitute Good Reason for purposes
of this sub clause (c)(i); (ii) a 10% or greater reduction in
his or her level of compensation, which will be determined based on
an average of the Executive’s annual Total Direct
Compensation for the prior three calendar years or, if less, the
number of years the Executive has been employed by the Company
(referred to below as the “look-back years”); or
(iii) a relocation of Executive’s place of employment by
more than 30 miles, provided and only if such change, reduction or
relocation is effected by the Company without Executive’s
consent. For purposes of the foregoing, Total Direct
Compensation
