Exhibit 10.35
RETENTION BONUS AGREEMENT
-------------------------
This Retention Bonus Agreement (the "Agreement") is made this ___ day
of November, 2001, by and between ______________ (the "Executive"), a resident
of _______ and Digex, Incorporated ("Digex"), a corporation organized under the
laws of the State of Delaware, with its principal place of business at Xxx Xxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and its subsidiaries and affiliates
(collectively the "Company"). The signatories to this Agreement will be referred
to jointly as the "Parties."
Preamble
--------
WHEREAS, in addition to the Executive's base salary and any
performance bonus or such other payment that the Company may from time to time
approve, the Company desires to create an incentive for the Executive to remain
actively employed with the Company, and/or its subsidiaries, affiliates or
successors through and including November 1, 2003.
NOW, THEREFORE, in reliance on the representations herein and in
consideration of the mutual promises, covenants and obligations herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1.0 Retention Bonus
---------------
1.1 The Company agrees to pay the Executive a sum equal to
[$_________] (the "Retention Bonus") provided that the Executive is actively
employed with the Company through and including November 1, 2003. The Executive
shall not receive the Retention Bonus, or otherwise be entitled to any pro-rata
payment thereof, in the event that the Executive's employment with the Company
terminates at any time prior to November 1, 2003, by reason of termination with
cause, resignation for any reason, or termination resulting from constructive
discharge by the Company. The Executive's service requirement under this
Agreement will not be affected by any change of control, sale of assets, sale of
stock, merger, share exchange, consolidation, business combination,
reorganization or change in capitalization of, or involving, the Company. In the
event of the Executive's termination without cause, permanent disability or
death, the Retention Bonus shall be payable to the Executive or his/her estate.
1.2 For purposes of this Agreement only, the phrase "termination
with cause" means termination of employment for (a) dishonesty, including but
not limited to, embezzlement or misrepresentation of Company funds; (b) fraud or
other wrongdoing against the Company; (c) conviction of a crime of moral
turpitude; (d) violation of the Company's standards of conduct or business
ethics policies or practices; (e) malicious destruction of Company property; (f)
improper disclosure of confidential and/or proprietary information relating to
the Company or entrusted to the Company by a client, customer, or other third
party; (g) engaging in or working for a business or entity in competition with
the Company; and (h) violation of a law governing the workplace or a material
violation of Company policies or practices relating to employee conduct. For
purposes of this Agreement only, termination by reason of lay-off, a
reduction-in-force, or a reorganization resulting in loss of the Executive's
employment shall not constitute termination with cause.
1.3 Subject to the terms and conditions contained in Paragraph 1.1
of this Agreement, the Retention Bonus shall be payable on November 1, 2003, or
upon the Executive's termination without cause, death or permanent disability.
2.0 No Guarantee of Employment
--------------------------
2.1 Nothing in this Agreement shall alter the at-will employment
status of the Executive, nor be construed as a contract of employment or service
relationship between the Company and the Executive, or as a contractual right of
the Executive to continue in the employ of, or in a service relationship with,
the Company for any period of time, with any particular level of compensation or
benefits or any given position or level of responsibility. The Company has the
right to terminate the employment of the Executive at any time with or without
cause or notice and whether or not the Executive's termination with cause
adversely affects the Executive under this Agreement.
2.0 Binding Arbitration
-------------------
3.1 Any allegation, claim, cause of action, demand or dispute
(collectively referred to as a "Dispute"), directly or indirectly related to
this Agreement shall be resolved through binding arbitration conducted in
accordance with the American Arbitration Association National Rules for the
Resolution of Employment Disputes, in effect on the date the demand for
arbitration is asserted. In the event that either Party demands arbitration, the
Executive and the Company agree that the proceeding shall be the exclusive,
final and binding forum for the ultimate resolution of any Dispute, subject to
any rights of appeal that either Party may have under the Federal Arbitration
Act and/or under applicable state law dealing with the review of arbitration
decisions. The Dispute shall be heard and determined by one arbitrator who is
either a retired judge or a licensed lawyer, experienced in arbitrating or
adjudicating employment-related Disputes.
4.0 Notices
-------
4.1 Any notices required under this Agreement shall be served upon
the Parties via telecopier and/or overnight priority mail as follows:
Notices to the Company:
One Digex Plaza
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Notices to Executive:
----------------------------
----------------------------
5.0 Waiver
------
The Executive agrees to waive any legal defenses based on
privity of contract or the equitable equivalent thereof concerning this
Agreement.
6.0 Miscellaneous
-------------
2
6.1 This Agreement is binding not only on the Parties themselves,
but also on their successors, assigns, heirs, agents and personal
representatives. The rights under this Agreement may not be assigned by either
Party without the consent of the other Party.
6.2 This Agreement constitutes the complete agreement between, and
contains all of the promises and undertakings of, the Parties with respect to
the Retention Bonus. It may not be revised or modified without the mutual
written consent of the Parties.
6.3 Executive acknowledges and agrees that he has had sufficient
time to consider this Agreement and to seek legal advice concerning its meaning.
6.4 This Agreement shall in all respects be interpreted, enforced,
and governed by the laws of the State of Maryland. Any arbitration with respect
hereto will be brought in the State of Maryland.
WHEREFORE, having fully read and understood the terms of this
Agreement, the Parties sign their names below with the intention that they shall
be bound by it.
On behalf of Digex, Incorporated and its
Subsidiaries and Affiliates
__________________________ ____________________________
__________________________ ____________________________
Date Date
3
