Exhibit 10.35
AMENDMENT NO. 1 TO EMPLOYMENT,
CONFIDENTIALITY,
SEVERANCE AND NON-COMPETITION
AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT,
CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT
(“Amendment No. 1”) is made, effective as of
December 19, 2008, by and between SAVVIS, Inc., a Delaware
corporation (the “Company”), and Paul Goetz
(“Executive”).
Recitals
:
WHEREAS, Executive and the Company previously entered
into the Employment, Confidentiality, Severance and Non-Competition
Agreement, effective as of October 9, 2007 (the
“Employment Agreement”); and
WHEREAS, Executive and the Company desire to further
amend the Employment Agreement to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as
amended.
Agreement
:
NOW, THEREFORE,
in consideration of the agreements
contained herein and of such other good and valuable consideration,
the sufficiency of which Executive acknowledges, the Company and
Executive, intending to be legally bound, agree as
follows:
1. Section 4(g) is hereby
deleted in its entirety and amended to read as follows:
“(g) Section 409A
Savings Clause . If any compensation or benefits provided by
this Agreement may result in the application of Section 409A
of the Code, the Company shall, in consultation with the Executive,
modify the Agreement in the least restrictive manner necessary in
order to exclude such compensation from the definition of
“deferred compensation” within the meaning of such
Section 409A or in order to comply with the provisions of
Section 409A, other applicable provision(s) of the Code and/or
any rules, regulations or other regulatory guidance issued under
such statutory provisions and without any diminution in the value
of the payments to the Executive.
Amounts payable
other than those expressly payable on a deferred or installment
basis, will be paid as promptly as practical and, in any event,
within 2 1
/
2 months after the end of the year
in which such amount was earned.
Any amount that the Executive is
entitled to be reimbursed will be reimbursed as promptly as
practical and in any event not later than the last day of the
calendar year after the calendar year in which the expenses are
incurred, and the amount of the expenses eligible for reimbursement
during any calendar year will not affect the amount of expenses
eligible f
