展覽10.37
控制變更遣散協議
本協議自2019年10月3日起生效（以下簡稱「生效日期」）由以下雙方簽訂 Raouf Abdel （這個“31-Dec和 EQUINIX, INC.公司」)的股份。權益代理”).
1.協議期限.
在本第1條所述之範圍內除外，本協議應於2022年10月3日（“到期日）或執行長與公司終止雇傭關係並非屬於第4(d)條所描述的符合終止原因之日（“合格終止原因”），以早者為準終止；但是，如果公司在2022年10月3日或之前已簽署關於控制變更的明確協議，那麼本協議應持續有效至以下兩者中較早者為準：
(a)執行人員與公司的僱傭關係終止的日期為非第4(d)條描述的合格終止原因；或者
(b)公司在執行長因第4(d)條描述的原因終止與公司的雇傭關係後，已達到本協議下的所有義務履行日期。
本協議將自動續期，並在每個由初始到期日期起算的三年期間內繼續有效，除非公司至少在本協議原本到期日期前六個月向執行長發出終止通知。
2.離職補償款.
(a)解僱福利如果高管遭受符合條件的解聘，公司應支付高管其年度基本薪資和目標獎金的200%（以導致符合條件解聘的行動之前生效的年度率計算）。高管將收到他/她的遣散金一次付清，最晚於以下日期之一的十（10）個業務日內支付：
(i)執行人合格終止的日期；
(ii)公司收到主管簽署的總釋條款日期；以及
(iii)執行執行總釋放者相關的撤回期限到期。
(b)醫療保健福利如果高級主管符合資格離職條件，並且高級主管選擇在終止雇用後繼續根據《綜合預算和再就業法案》（COBRA）保險計畫續保，那麼公司將支付高級主管的COBRA每月保費，直到以下第一個到期日：(i) 離職後24個月期間屆滿或 (ii) COBRA續保計畫結束。COBRA當行司對高級主管實行符合資格的解雇時，並且高級主管選擇在其雇傭關係終止後繼續根據COBRA項下的續保計劃託繼其醫療保險，則行司應支付高級主管COBRA的月保費，直至 (i) 其雇傭關係終止後24個月期限結束或 (ii) 高級主管在COBRA續保下的續保計劃結束。
(c)一般發佈。 不 受本協議的其他任何條款限制，(a)和 (b)款上述規定不適用，除非執行官 (i)已經簽署了一份執行中寫明由公司制定的一般性免責聲明，免除所有已知和未知的對公司或與公司有關聯的人士提出的任何索賠；且 (ii)已同意不對任何此類索賠進行任何法律訴訟或其他訴訟。該免責聲明必須按照公司規定的形式進行，不得進行任何修改。
公司將在執行長離職後30天內將表格交給執行長。執行長必須在收到表格後21天內簽署並退回解除文件。
(d)409A條款根據1986年修訂的《國稅法典》第409A條的規定，如果公司判定執行官在離職時為《國稅法典》第409A條(a)(2)(B)(i)條文所指定的員工，則(i) 2(a)條文下的離職福利將於執行官離職後的第七個月開始，只要這些福利受到《國稅法典》第409A條的約束， (ii) 在離職後的頭六個月原本要支付的任何金額都將以最早合乎《國稅法典》第409A條(a)(2)條文許可的日期一次性支付。編碼如果離職補償金被視為《國稅法典》第409A條的逆延期支付，則執行官將在離職後的第60天收到一次性現金補償金，如果該日不是業務日，則在其後的第一個業務日支付。日 根據1986年修訂的《國稅法典》第409A條的規定，如果公司判定執行官在離職時為《國稅法典》第409A條(a)(2)(B)(i)條文所指定的員工，則(i) 2(a)條文下的離職福利將於執行官離職後的第七個月開始，只要這些福利受到《國稅法典》第409A條的約束， (ii) 在離職後的頭六個月原本要支付的任何金額都將以最早合乎《國稅法典》第409A條(a)(2)條文許可的日期一次性支付。 如果離職補償金被視為《國稅法典》第409A條的逆延期支付，則執行官將在離職後的第60天收到一次性現金補償金，如果該日不是業務日，則在其後的第一個業務日支付。
3.盟約。
(a)非挖角在高管與公司的僱傭關係期間及終止僱傭後的十二個月內，高管不得直接或間接地，本人或通過他人，就公司或其任何聯屬公司的任何員工或顧問的僱傭，或嘗試引誘其僱傭，不論是由高管本人或代表任何其他人或實體。高管與公司同意，此條款對公司業務活動地區進行合理執行。
(b)非競爭。執行官同意，在與公司的雇佣期間內，他或她不得從事任何其他的僱傭、諮詢或其他業務活動（無論全職或兼職），這可能與公司產生利益衝突。
(c)合作與不誹謗。執行長同意，在其終止雇傭後的十二個月期間，他或她將以盡一切合理的方式與公司合作，並盡最大努力協助公司將執行長的職責過渡給其繼任者。執行長進一步同意，在這十二個月期間內，他或她不得以任何方式誹謗公司、公司董事會成員或公司的高層管理人員和員工。
4.定義。
(a)“Cause”的定義。 對於本協議中的所有目的，“Cause”指的是高層管理人員未經授權使用或揭露商業秘密，導致對公司造成重大損害，高層管理人員被判犯有重罪或認罪或無罪不辯抗，以及高層管理人員的嚴重不當行為。
(b)「控制權變更」之定義。 在本協議下，「控制權變更」指：
(i)如果公司與其他實體進行合併或資產重組，或進行任何其他公司重組，且在該等合併、重組或其他重組之前未成為公司股東的人士，則在此等合併、重組或其他重組之後，立即擁有(x) 繼續存在或存續的實體及(y) 任何繼續存在或存續的實體之直接或間接母公司的已發行有投票權證券50 %或以上的表決權。
(ii)公司所有資產的出售、轉讓或其他處置;
(iii)董事會組成的改變導致不到50%的現任董事是在距離可能構成控制權變更事件的日期前24個月的日期公司的董事（“ 原董事 ”）；或者 (y) 在當選或提名進入董事會時，得到至少占當時在任的原董事與之前選出或提名的董事的總和中的多數所持肯定票的董事。原董事）或（y）在當時的選舉或提名時，得到至少佔當時在任的原董事與之前已獲得肯定投票的董事所佔肯定票的多數份額的董事。
(iv)Any transaction as a result of which any person is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), director or indirectly, of securities of the Company representing at least 50% of the total voting power represented by the Company’s then outstanding voting securities. For purposes of this paragraph (iv), the term “person” shall have the same meaning as when used in sections 13(d) and 14(d) of the Exchange Act but shall exclude (x) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Parent or Subsidiary and (y) a corporation owned directly or indirectly by the stockholder of the Company in substantially the same proportions as their ownership of the common stock of the Company.
A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(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 employed for fewer than three calendar years, for 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 means total target cash compensation (annual base salary plus target annual cash incentives). For the Executive to receive the benefits under this Agreement as a result of a voluntary resignation under this subsection (c), all of the following requirements must be satisfied: (1) the Executive must provide notice to the Company of his or her intent to assert Good Reason within 120 days of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii); (2) the Company will have 30 days from the date of such notice to remedy the condition and, if it does so, the Executive may withdraw his or her resignation or may resign with no benefits; and (3) any termination of employment under this provision must occur within eighteen (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 twelve (12) months following the occurrence of a Change in Control, the Executive may assert Good Reason again subject to all of the conditions set forth herein.
(d)Definition of “Qualifying Termination.” For all purposes under this Agreement, “Qualifying Termination” shall mean a Separation resulting from (i) the Company’s termination of the Executive’s employment for any reason other than Cause within twelve (12) months after a Change in Control or (ii) the Executive’s voluntary resignation of his or her employment for Good Reason between the date that is four (4) months following a Change in Control and the date that is twelve (12) months following a Change in Control, provided however, that the grounds for Good Reason may arise at any time within the twelve (12) months following the Change in Control.
(e)Definition of Separation. For all purposes under this Agreement, “Separation” shall mean a “separation from service,” as defined in the regulations under Section 409A of the Code.
5.Successors.
(a)Company’s Successors. The Company shall require any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets, by an agreement in substance and form satisfactory to the Executive, to assume this Agreement and to agree expressly to perform this Agreement in the same manner and to the same extent as the Company would be required to perform it in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets or which becomes bound by this Agreement by operation of law.
(b)Executive’s Successors. This Agreement and all rights of the Executive hereunder shall inure to the benefit of, and be enforceable by, the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
6.Golden Parachute Taxes
(a)Best After-Tax Result. In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of Section 6(b) hereof, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, Independent Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that Independent Tax Counsel shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section. In the event that Section 6(a)(ii)(B) above applies, then based on the information provided to the Company by Independent Tax Counsel, the Company shall reduce or eliminate the Payments in the following order, until the amounts payable or distributable to Executive equals the Reduced Amount: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards other than stock options; (iii) cancellation of accelerated vesting of stock options; and (iv) reduction of other benefits paid to the Executive. In the event that acceleration of vesting is reduced, such acceleration of vesting shall be cancelled in the reverse order of date of grant of the Executive’s equity awards. In the event that cash payments or other benefits are reduced, such reduction shall occur in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of Independent Tax Counsel’s determination under this Section. If the Internal Revenue Service (the “IRS”) determines that any Payment is subject to the Excise Tax, then Section 6(b) hereof shall apply, and the enforcement of Section 6(b) shall be the exclusive remedy to the Company.
(b) Adjustments. If, notwithstanding any reduction described in Section 6(a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the
receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 6(b), Executive shall pay the Excise Tax.
7.Miscellaneous Provisions.
(a)Other Severance Arrangements. This Agreement supersedes any and all cash severance arrangements on change in control under any prior separation, severance and salary continuation arrangements, programs and plans which were previously offered by the Company to the Executive, including change in control severance arrangements pursuant to an employment agreement or offer letter. In no event shall any individual receive cash severance benefits under both this Agreement and any other severance pay or salary continuation program, plan or other arrangement with the Company.
(b)Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or deposited with Federal Express Corporation, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address which he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
(c)Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
(d)Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law.
(e)Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
(f)No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause.
(g)Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California (other than their choice-of-law provisions).
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year first above written.
/s/ Raouf Abdel
Raouf Abdel
Raouf Abdel
EQUINIX, INC.
/s/ Charles Meyers
By: Charles Meyers
By: Charles Meyers
Title: President & CEO