Exhibit
10.35
AKAMAI TECHNOLOGIES,
INC.
CHANGE OF CONTROL AND SEVERANCE
AGREEMENT
This Change of Control and Severance
Agreement (the “Agreement”) is made and entered into by
and between
(the “Executive”) and Akamai Technologies, Inc. (the
“Company”), effective as of the last date set forth by
the signatures of the parties below (the “Effective
Date”).
RECITALS
A. It is expected that the Company
from time to time will consider the possibility of its acquisition
by another company or another Change of Control Event (as defined
below). The Board of Directors of the Company (the
“Board”) recognizes that such consideration, and the
possibility that the Executive’s employment could be
terminated by the Company for a reason other than for cause, can be
distractions to the Executive and can cause the Executive to
consider alternative employment opportunities. The Board has
determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued
dedication and objectivity of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control Event of
the Company or the termination by the Company of the
Executive’s employment for a reason other than for Cause (as
defined below).
B. The Board believes that it is in
the best interests of the Company and its stockholders to provide
the Executive with an incentive to continue his or her employment
with the Company, or a wholly-owned subsidiary of the Company, as
the case may be, and to motivate the Executive to maximize the
value of the Company upon a Change of Control Event for the benefit
of its stockholders.
C. The Board believes that it is
imperative to provide the Executive with certain benefits upon a
Change of Control Event or upon the termination of the
Executive’s employment following a Change of Control Event
for a reason other than Cause, thereby encouraging the Executive to
remain with the Company notwithstanding the possibility of a Change
of Control Event or termination of employment for a reason other
than for Cause.
The Company and the Executive hereby
agree as follows:
1. Term of Agreement . This
Agreement shall terminate upon the date that all obligations of the
Company and the Executive with respect to this Agreement have been
satisfied.
2. At-Will Employment . The
Company and the Executive acknowledge that the Executive’s
employment is and shall continue to be at-will, as defined under
applicable law, and may be terminated at any time by either party,
with or without cause.
3. Change of Control Event .
If: (i) the Executive is employed by the Company as of the
date of a Change of Control Event; and (ii) within one year of
the Change of Control Event the Executive’s employment is
terminated by the surviving entity for any reason other than for
Cause, including the Executive’s voluntary termination for
Good Reason, then the Executive shall be entitled to:
(a) full acceleration of the vesting
of the Executive’s stock options so that such stock options
become 100% vested; and
(b) severance pay and benefits, all
of which shall be paid less applicable withholdings for taxes and
other deductions required by law, consisting of:
(i) A lump sum payment equal to one
year of the Executive’s then-current base salary;
(ii) A lump sum payment equal to the
annual incentive bonus at target that would have been payable to
the Executive under the Company’s Executive Bonus Plan in
effect immediately before the Change of Control Event, if any, in
the year of the Executive’s termination had both the Company
and the Executive achieved the target bonus objectives set forth in
such Executive’s Bonus Plan during such year; and
(iii) Reimbursement for up to 12
months of the amount paid by the Executive for continued health and
dental insurance coverage under the Consolidated Omnibus Budget
Reconciliation Act (COBRA). In order to receive this benefit, the
Executive must timely elect COBRA continuation coverage in
accordance with the Company’s or surviving entity’s
usual COBRA procedures.
All payments and benefits under this
Section 3 are conditioned upon the Executive’s execution
of a separation agreement acceptable to and provided by the
surviving entity that contains, among other provisions, a full
release of claims and, where permitted by applicable law, an
agreement not to compete with the surviving entity for one year
following the Executive’s termination. The payments and
benefits described in Sections 3(a) and 3(b) shall be provided
within sixty (60) days after the Executive’s termination
of employment, provided the Executive has executed the separation
agreement described herein and such agreement has become
enforceable; provided that if such the last day of such sixty day
period occurs in the calendar year after the calendar year of
termination, the payments and benefits shall be made no earlier
than January 1 of such subsequent calendar year.
4. Compliance with
Section 409A . Subject to the provisions in this
Section 4, any severance payments or benefits under
Section 3 of this Agreement shall begin only upon the date of
the Executive’s “separation from service”
(determined as set forth below) which occurs on or after the date
of termination of the Executive’s employment. The following
rules shall apply with respect to distribution of the payments and
benefits, if any, to be provided to the Executive under
Section 3 of this Agreement:
(a) It is intended that each
installment of the severance payments and benefits provided under
this Agreement shall be treated as a separate “payment”
for purposes of Section 409A of the Code and the guidance
issued thereunder (“Section 409A”). Neither the
Executive nor the Company shall have the right to accelerate or
defer the delivery of any such payments or benefits except to the
extent specifically permitted or required by
Section 409A.
(b) If, as of the date of the
Executive’s “separation from service” from the
Company, the Executive is not a “specified employee”
(within the meaning of Section 409A), then each installment of
the severance payments and benefits shall be made on the dates and
terms set forth in Section 3.
(c) If, as of the date of the
Executive’s “separation from service” from the
Company, the Executive is a “specified employee”
(within the meaning of Section 409A), then:
(i) Each installment of the
severance payments and benefits due under this Agreement that, in
accordance with the dates and terms set forth herein, will in all
circumstances, regardless of when the separation from service
occurs, be paid within the period of time permitted under Section
Treasury Regulation Section 1.409A-1(b)(4) shall be treated as
a short-term deferral within the meaning of such Section to the
maximum extent permissible; and
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(ii) Each installment of the
severance payments and benefits due Section 3 that is not
described in paragraph 4(c)(i) above and that would, absent this
subsection, be paid within the six-month period following the
Executive’s “separation from service” from the
Company shall not be paid until the date that is six months and one
day after such separation from service (or, if earlier, the
Executive’s death), with any such installments that are
required to be delayed being accumulated during the six-month
period and paid in a lump sum on the date that is six months and
one day following your separation from service and any subsequent
installments, if any, being paid in accordance with the
date
