Exhibit 10.35
SEVERANCE
AGREEMENT
THIS AGREEMENT is entered into as of
May 22, 2006 by and between Eric Schwartz (the
“Executive”) and EQUINIX, INC. , a Delaware
corporation (the “Company”).
This Agreement shall remain in
effect from the date hereof until 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).
(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 at the time
of 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:
(i) the date of Executive’s
Qualifying Termination;
(ii) the date of the Company’s
receipt of the Executive’s executed General Release;
and
(iii) the expiration of any
rescission period applicable to the Executive’s executed
General Release.
(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.
(d) The other provisions of Sections
2(a) and (b) above notwithstanding, the payment(s) under
Section 2(a) and the COBRA reimbursements under
Section 2(b) shall in no event commence prior to the earliest
date permitted by section 409A(a)(2) of the Internal Revenue
Code of 1986, as amended (“the Code”). If the
commencement of such payments or reimbursements must be delayed,
then any deferred installments shall be paid in a lump sum on the
earliest practicable date permitted by section 409A(a)(2) of
the Code.
(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 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
