Form of Second Amended and Restated Executive Severance AgreementUnited States

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Exhibit 10.55

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EXECUTIVE SEVERANCE AGREEMENT

This EXECUTIVE SEVERANCE AGREEMENT (including Exhibit A hereto, the “Agreement”), dated as of [DATE] (“Effective Date”), is made by and between Digital Realty Trust, Inc. (“REIT”), DLR LLC (“Employer”, and together with the REIT, “Company”) and ______________ (“Employee”, and together with the Company, “Parties”).  

In consideration of Employee’s continued employment with the Company and for other good and valuable consideration, the Company is pleased to offer Employee eligibility to receive severance benefits upon specified terminations of employment on the terms and conditions set forth in this Agreement in accordance with the belief of the Compensation Committee of the Board of Directors of the REIT that it is in the Company’s best interests to provide Employee with those benefits as enhanced financial security and incentive and encouragement for Employee to remain with the Company. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section III of Exhibit A of this Agreement.

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F.In the event of any installment payment of compensation under this Agreement, each installment shall be treated as a separate payment of compensation for purposes of applying Section 409A.

G.If any payment subject to Section 409A is contingent on the delivery of a Release by Employee and the aggregate period during which Employee is entitled to consider and/or revoke such Release spans two calendar years, the payment shall not be made prior to the beginning of the second such calendar year (and any payments otherwise payable prior thereto (if any) shall instead be paid on the first regularly scheduled Company payroll date occurring in the latter such calendar year).

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[Signature Page Follows]

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Please confirm your agreement to the foregoing by signing and dating this Agreement in the space provided below for your signature and returning it to Cindy Fiedelman.

Sincerely,

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EXHIBIT A

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Appendix 1
General Release of Claims

In consideration of the payments and benefits set forth in that certain Executive Severance Agreement, dated [DATE], between the undersigned (“Employee”), Digital Realty Trust, Inc. and DLR, LLC (“Severance Agreement”), and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, Employee 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, 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 Employee 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 Employee; any alleged breach of any express or implied contract of employment or other service (including any claim arising under the Severance Agreement); any alleged torts or other alleged legal restrictions on the Releasee’s right to terminate the employment or other service of Employee; 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 “FMLA”); 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 Sarbanes-Oxley Act of 2002; the Worker Adjustment Notification and Retaining Act; the California Labor Code; 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 Employee (i) to payments and benefits under the Severance Agreement, (ii) to payments or benefits under any agreement between Employee and the Company evidencing outstanding stock options, profits interest units, or other equity-based awards in the Company held by Employee, (iii) to accrued or vested benefits Employee 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 Employee 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 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 Employee does release Employee’s right to secure damages for any alleged discriminatory,

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harassing, or retaliatory treatment (except that nothing in this Release shall be interpreted to prohibit or prevent Employee from recovering an award for filing or participating in any whistleblower complaint filed with the Securities and Exchange Commission).

EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS BEEN 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.”

EMPLOYEE, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS EMPLOYEE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. In connection with such waiver and relinquishment, Employee hereby acknowledges that employee may hereafter discover claims or facts in addition to, or different from, those which he now knows or believes to exist, but that employee 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 employee’s behalf against the Company and/or Releasees at the time of execution of this Release.

IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, EMPLOYEE IS HEREBY ADVISED AS FOLLOWS:

(A)EMPLOYEE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE;

(B)EMPLOYEE HAS TWENTY-ONE (21) DAYS TO CONSIDER THIS RELEASE BEFORE SIGNING IT;

(C)EMPLOYEE HAS SEVEN (7) DAYS AFTER SIGNING THIS RELEASE TO REVOKE THIS RELEASE, AND THIS RELEASE WILL BECOME EFFECTIVE UPON THE EXPIRATION OF THAT REVOCATION PERIOD; AND

(D)BY SIGNING THIS RELEASE, EMPLOYEE SPECIFICALLY ACKNOWLEDGES THAT EMPLOYEE KNOWINGLY AND VOLUNTARILY WAIVES ALL RIGHTS OR CLAIMS ARISING UP TO AND THROUGH THE DATE OF EXECUTION UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967.

If Employee wishes to revoke his acceptance of this Release, Employee must deliver such notice in writing, no later than 5:00 p.m. Pacific Time on the 7th day following his signature to [NAME], [TITLE], Human Resources of the Company, at ***@*** by e-

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mail. If Employee does not revoke acceptance of this Release within the seven (7) day period, Employee’s acceptance of this Agreement shall become binding and enforceable on the eighth day following the date Employee executed this Release.

Employee represents and warrants that there has been no assignment or other transfer of any interest in any Claim which Employee may have against the Releasees, or any of them, and Employee agrees to indemnify and hold the Releasees, and each of them, harmless from any liability, Claims, demands, damages, costs, expenses, and attorneys’ fees incurred by the Releasees, or any of them, as the result of any such assignment or transfer of any rights or Claims. It is the intention of the parties that this indemnity does not require payment as a condition precedent to recovery by the Releasees against Employee under this indemnity.

Employee represents that Employee has no lawsuits, Claims, or actions pending in Employee’s name, or on behalf of Employee or any other person or entity, against any of the Releasees. Employee agrees that Employee will not voluntarily provide assistance, information, or advice, directly or indirectly (including through agents or attorneys), to any person or entity in connection with any actual or potential Claim or cause of action of any kind against the Releasees and that Employee shall not induce or encourage any person or entity to do so, unless compelled or authorized to do so by law. Notwithstanding the foregoing, Employee retains the right to file a charge with the Equal Employment Opportunity Commission and equivalent state and local agencies, and to cooperate with investigations by any such agency.

Employee acknowledges and represents that Employee has not suffered any discrimination or harassment by any of the Releasees on account of race, gender, national origin, religion, marital or registered domestic partner status, sexual orientation, age, disability, veteran status, medical condition, or any other characteristic protected by applicable law. Employee acknowledges and represents that Employee has not been denied any leave, benefits, or rights to which Employee may have been entitled under the FMLA or any other federal or state law, and that Employee has not suffered any job-related wrongs or injuries for which Employee might be entitled to compensation or relief. Employee further acknowledges and represents that, other than the benefits that will be provided to Employee pursuant to the Severance Agreement, Employee has been paid all wages, bonuses, compensation, benefits, and other amounts that any of the Releasees has ever owed to Employee, and Employee is not entitled to any additional compensation, severance, or benefits after the date hereof, with the sole exception of any benefit the right to which has vested under the express terms of a Company benefit plan document. Employee represents and warrants that all of the factual representations made herein are true in all material respects.

In addition, Employee acknowledges and agrees that Employee is bound by certain covenants and provisions set forth in the Severance Agreement as well as in the Employee Confidentiality and Covenant Agreement (“ECCA”) and Proprietary Information and Inventions Assignment Agreement (“PIIAA”), if any, and that such covenants and provisions shall survive the termination of Employee’s employment with the Company and shall remain in full force and effect in accordance with the terms of the Severance Agreement, ECCA, and PIIAA. Employee further acknowledges and agrees that Employee’s right to receive the payment and benefits set forth in the Severance Agreement is conditioned on and subject to Employee’s continued compliance with the restrictive covenants set forth in the Severance Agreement, ECCA, and PIIAA. Notwithstanding anything herein or in the Severance Agreement or the ECCA or PIIAA to the contrary, Employee acknowledges and agrees that, pursuant to 18 USC Section 1833(b), Employee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state, or local

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government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

Employee agrees that if Employee hereafter commences any suit arising out of, based upon, or relating to any of the Claims released hereunder or in any manner asserts against the Releasees, or any of them, any of the Claims released hereunder, then Employee agrees to pay to the Releasees, and each of them, in addition to any other damages caused to the Releasees thereby, all attorneys’ fees incurred by the Releasees in defending or otherwise responding to said suit or Claim; provided, that, this paragraph shall not apply with respect to any compulsory counterclaims, within the meaning of Rule 13(a) of the Federal Rules of Civil Procedure, asserted by Employee against the Releasees bringing claims against Employee as set forth above.

Employee further understands and agrees that neither the payment of any sum of money nor the execution of this Release shall constitute or be construed as an admission of any liability whatsoever by the Releasees, or any of them, who have consistently taken the position that they have no liability whatsoever to Employee.

Employee agrees that if any provision of this Release is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Release and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. Employee understands that this Release, together with the Severance Agreement and any ECCA and/or PIIAA executed by Employee, constitutes the complete, final, and exclusive embodiment of the entire agreement between Employee and the Company with regard to the subject matter hereof. Employee is not relying on any promise or representation by the Company that is not expressly stated therein. The Parties further understand and agree that this Release may be amended only by a written instrument executed by all parties hereto.

IN WITNESS WHEREOF, the undersigned has executed this Release on [DATE].

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[EMPLOYEE]