TRANSITION AND CONSULTING AGREEMENT
Exhibit 10.2
TRANSITION AND CONSULTING AGREEMENT
THIS TRANSITION AND CONSULTING AGREEMENT (“Agreement”), dated as of July 26, 2022, is made by and between Digital Realty Trust, Inc. (“REIT”), DLR LLC (together with the REIT, “Company”), and Xxxxx Xxxxxx (“Executive”).
WHEREAS, pursuant to that certain Amended Management Agreement, dated as of January 4, 2021, by and between the Company, Executive, and InterXion (together with all exhibits and annexes thereto, the “AMA”), Executive served the Company in the role of EVP, Strategic Advisor of the Company and served InterXion II B.V., an indirect subsidiary of the Company (“InterXion”), in the role of statutory director thereof;
WHEREAS, pursuant to the terms of the AMA, as of June 30, 2022 (“Transition Date”), the AMA terminated in accordance with its terms;
WHEREAS, effective as of the Transition Date, the Company and Executive mutually agreed to extend Executive’s employment with the Company on an at-will basis on the same terms and conditions as then in effect and the Company and Executive now mutually agree to terminate Executive’s employment as of the date of this Agreement (“Termination Date”); and
WHEREAS, in connection with Executive’s termination of employment on the Termination Date, the Company wishes to secure the services of Executive as a consultant to the Company upon the terms and subject to the conditions set forth herein, and Executive wishes to render such services to the Company upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
The federal Defend Trade Secrets Act of 2016 (“Act”) provides immunity from liability in certain circumstances to employees, contractors, and consultants for limited disclosures of Digital Group “trade secrets,” as defined by the Act. Specifically, employees, contractors, and consultants may disclose trade secrets: (1) in confidence, either directly or indirectly, to a federal, state, or local government official, or to an attorney, “solely for the purpose of reporting or investigating a suspected violation of law,” or (2) “in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Additionally, employees, contractors, and consultants who file lawsuits for retaliation by an employer for reporting a suspected violation of law may use and disclose related trade secrets in the following manner: (1) the individual may disclose the trade secret to their attorney, and (2) the individual may use the information in the court proceeding, as long as the individual files any document containing the trade secret under seal and does not otherwise disclose the trade secret “except pursuant to court order.”
If to the Company:
Digital Realty Trust, Inc.
0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxxx, XX 00000
Attn: General Counsel
xxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
If to Executive, to their most recent address on the Company’s books and records.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Transition and Consulting Agreement, effective as of the date first written above.
DIGITAL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Chief Human Resources Officer
DLR LLC,
a Maryland limited liability company
By: Digital Realty Trust, L.P.,
its managing member
By: Digital Realty Trust, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Chief Human Resources Officer
Accepted and Agreed,
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Date: July 26, 2022
Exhibit A
Letter of Resignation from Statutory Directorship
(See Attached)
Letter of Resignation from Statutory Directorship
To: | Digital Realty Trust, Inc. |
Dear Company and InterXion II B.V.,
I refer to the Transition and Consulting Agreement (“Agreement”), dated as of July 26, 2022, among Digital Realty Trust, Inc. (“REIT”), DLR LLC (together with the REIT, “Company”), and myself, Xxxxx Xxxxxx (“Executive”).
In accordance with the provisions of the AMA (article 2.4) and the Agreement, I hereby resign effective as of June 30, 2022 from my position as statutory director (statutair bestuurder) of InterXion II B.V.
I confirm that I have no claim against InterXion II B.V., other than my claims under the Agreement.
I hereby confirm that InterXion II B.V. may proceed with all the required formalities with the Trade Register and that I am available to cooperate to effect such deregistration.
Yours sincerely,
/S/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Exhibit B
Equity Awards
Performance-Based Equity Awards
Grant Date | Award ID | Type of Equity Award | Number of | Number of Units Fully Vested as of | Number of Unvested Units as of |
2/25/2021 | 30059 | Class D Unit | 16557 | 0 | 16557 |
2/25/2021 | 30059D | Class D Unit | 4967 | 0 | 4967 |
1/1/2022 | 40006D | Class D Unit | 1396 | 0 | 1396 |
1/1/2022 | 40006 | Class D Unit | 4654 | 0 | 4654 |
3/4/2022 | 40040D | Class D Unit | 2,100 | 0 | 2,100 |
3/4/2022 | 40040 | Class D Unit | 7,002 | 0 | 7,002 |
* The number of performance-based units are listed at “target” amounts as of the Grant Date and will be updated upon completion of the relevant Performance Period.
Time-Based Equity Awards
Grant Date | Award ID | Type of Equity Award | Number of | Number of Vested Units as of | Number of Unvested Units as of |
2/1/2017 | 11018242767 | Restricted Stock Units | 57888 | 57888 | 0 |
2/1/2018 | 11018243132 | Restricted Stock Units | 47826 | 47826 | 0 |
2/1/2019 | 11018243497 | Restricted Stock Units | 58130 | 58130 | 0 |
2/1/2020 | 11018243862 | Restricted Stock Units | 24539 | 24539 | 0 |
2/25/2021 | 30068 | Profits Interest Unit | 7981 | 1995 | 5986 |
1/1/2022 | FIDLOJ18S1YTN | Profits Interest Unit | 7350 | 0 | 7350 |
Exhibit C
Employee Confidentiality and Covenant Agreement
(See Attached)
GENERAL RELEASE OF CLAIMS
In consideration of the benefits set forth in the Transition and Consulting Agreement, dated July 26, 2022 between the undersigned, Digital Realty Trust, Inc., and DLR LLC (“Agreement”), and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned does hereby release and forever discharge the “Releasees” hereunder, consisting of Digital Realty Trust, Inc., a Maryland corporation, Digital Realty Trust, L.P., a Maryland limited partnership, and DLR LLC, a Maryland limited liability company (collectively, the “Company”), each of their subsidiaries and affiliates, and, in their capacity as such, each of their predecessors, successors, partners, directors, officers, employees, attorneys, contractors, assurers, assigns and agents of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees, or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which the undersigned now has or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof.
The Claims released herein include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to the service relationship, employment, or termination of service or employment of the undersigned; any alleged breach of any express or implied contract of employment or other service; any alleged torts or other alleged legal restrictions on the Releasees’ rights to terminate the employment or other service of the undersigned; and any alleged violation of any federal, state, or local statute or ordinance including, without limitation, the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621, et seq.; Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000 et seq.; the Equal Pay Act, 29 U.S.C. § 206(d); the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. § 2601 et seq.; the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.; the False Claims Act, as amended, 31 U.S.C. § 3729 et seq.; the Employee Retirement Income Security Act, as amended, 29 U.S.C. § 1001 et seq.; the Fair Labor Standards Act, as amended, 29 U.S.C. § 215 et seq.; the Xxxxxxxx-Xxxxx Act of 2002; the Worker Adjustment Notification and Retaining Act; the California Labor Code (e.g., Sections 132a, 4553 et seq.); the California Fair Employment and Housing Act, as amended; the California Family Rights Act, as amended; the California Worker Adjustment Notification and Retraining Act; and all other federal, state, and local employment and civil rights laws.
Notwithstanding the foregoing, this Release shall not be construed in any way to operate to release any rights or Claims of the undersigned (i) to payments and benefits under the Agreement, (ii) to payments or benefits under any agreement between the undersigned and the Company evidencing outstanding stock options, profits interest units, or other equity-based awards in the Company held by the undersigned, (iii) to accrued or vested benefits the undersigned may have, if any, as of the date hereof under any applicable plan, policy, practice, program, contract, or agreement with the Company, (iv) for indemnification and/or advancement of expenses, arising under any indemnification agreement between the undersigned and the Company or under the bylaws, certificate of incorporation, or other similar governing document of the Company, (v) to any rights or benefits that may not be waived pursuant to applicable law, including, without limitation, any right to unemployment insurance benefits, or (vi) to bring to the attention of the
US-DOCS\102937527.1
Equal Employment Opportunity or California Department of Fair Employment and Housing claims of discrimination, harassment, or retaliation, or (vii) to communicate directly with, cooperate with or provide information to, any federal, state, or local government regulator; provided, however, that the undersigned does release the undersigned’s right to secure damages for any alleged discriminatory, harassing, or retaliatory treatment (except that nothing in this Release shall be interpreted to prohibit or prevent the undersigned from recovering an award for filing or participating in any whistleblower complaint filed with the Securities and Exchange Commission or providing information to any other government agency).
THE UNDERSIGNED ACKNOWLEDGES THAT THEY HAVE BEEN ADVISED TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO ACCEPTING THIS RELEASE AND HAVE BEEN, OR HAVE HAD THE OPPORTUNITY TO BE, ADVISED BY LEGAL COUNSEL AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS HE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. In connection with such waiver and relinquishment, the undersigned hereby acknowledges that he may hereafter discover claims or facts in addition to, or different from, those which he now knows or believes to exist, but that he expressly agrees to fully, finally, and forever settle and release any and all claims, known or unknown, suspected or unsuspected, which exist or may exist on his behalf against the Company and/or Releasees at the time of execution of this Release.
This Release is intended to satisfy the requirements of the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f).
Undersigned acknowledges and agrees that (a) Undersigned has read and understands the terms of this Release; (b) Undersigned has been given twenty-one (21) days to consider whether or not to enter into this Release (although Undersigned may elect not to use the full 21-day period at Undersigned’s option); and (c) by signing this Release, Undersigned specifically acknowledges and agrees that Undersigned knowingly and voluntarily waives all rights or claims arising under the Age Discrimination in Employment Act of 1967. This Release does not waive or release any rights or claims that Undersigned may have under the Age Discrimination in Employment Act that arise after the execution of this Release.
Undersigned may revoke Undersigned’s acceptance of this Release within seven (7) calendar days after the date Undersigned signs it. Undersigned’s revocation must be in writing and received by Xxxxxxx Xxx, EVP, General Counsel at xxxx@xxxxxxxxxxxxx.xxx, or 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx, XX 00000, before the eighth day (from Undersigned’s date of execution of this Release) in order to be effective (“Revocation Period”). If mailed, the revocation must be properly addressed to the above addressee and postmarked no later than the last day of the Revocation Period. If Undersigned does not revoke acceptance of this Release within the Revocation Period, Undersigned’s acceptance of this Release shall become binding and enforceable on the eighth day (“Effective Date”).
IN WITNESS WHEREOF, the undersigned has executed this Release on July 26, 2022.
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
