Exhibit
10.34
AKAMAI TECHNOLOGIES,
INC.’S
EXECUTIVE SEVERANCE PAY
PLAN
AND SUMMARY PLAN
DESCRIPTION
Effective July 18,
2006
As amended on May 9, 2008 and
December 16, 2008
1. Establishment of the
Plan . Akamai Technologies, Inc. (referred to herein
collectively with its United States subsidiaries as
“Akamai” or the “Company”) hereby
establishes an unfunded “Executive Severance Pay Plan”
(the “Plan”) which is intended to be a welfare benefit
plan within the meaning of Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”). The Plan is in effect for Akamai executives
who are members of the Office of the CEO (or its successor group),
excluding the Chief Executive Officer and the Executive Chairman
(“Executives”), at the time that they are
terminated.
2. Purpose .
The Plan is for the purpose of assisting Executives of Akamai who
are involuntarily terminated for reasons other than
“cause” and to resolve fully and finally all potential
issues arising out of their employment. This Plan supersedes the
provisions of any other agreement(s) an Executive may have
regarding payments to be made upon termination of employment,
including but not limited to, the acceleration of stock options
and/or any lump sum payment an Executive may receive in the event
of termination following a Change of Control, as that term is
defined in such agreement(s); provided, however, that this Plan
shall not be deemed to terminate or replace, but shall be deemed to
supplement, (a) provisions in restricted stock unit agreements
entered into with Executives that relate to the effect of a
termination of employment or (b) provisions in stock option
agreements or the Company’s Stock Incentive Plans that that
provide for the automatic acceleration of vesting of options upon a
Change in Control Event. This Plan is intended to operate and
provide benefits in conjunction with the Change of Control benefits
for Executives approved by the Company’s Board of Directors
on July 18, 2006. An amendment to the Plan to add clause
(l) to Section 4 was approved by the Compensation
Committee of the Company’s Board of Directors on May 9,
2008.
3. Definition of
Termination for Cause . For the purposes of this Plan,
“Cause” is defined as (i) any act or omission by
an Executive which has an adverse effect on Akamai’s business
or on the Executive’s ability to perform services for Akamai,
including, without limitation, the commission of any crime (other
than ordinary traffic violations), or (ii) refusal or failure
to perform assigned duties, serious misconduct, or excessive
absenteeism, or (iii) refusal or failure to comply with
Akamai’s Code of Business Ethics. Whether an Executive has
been terminated for “cause” shall be determined in the
sole discretion of the Plan Administrator after consultation with
appropriate members of Akamai’s management.
4. Eligibility
. Eligibility to participate in the Plan, which is to be determined
in the sole discretion of the Plan Administrator, is limited to
regular full-time Executives who are involuntarily terminated by
Akamai or any of its United States based subsidiaries on or after
July 18, 2006 and who have signed a separation agreement
acceptable to and provided by the Company that contains, among
other provisions, a full release of claims and, where permitted by
applicable law, an agreement not to compete with the Company for
one year following such termination, in such forms and within such
times as may be reasonably determined by the Company.
The following are NOT
eligible for severance pay under this Plan:
(a) an Executive who resigns
voluntarily, including but not limited to an Executive who is
offered an employment opportunity with any purchaser or other
successor of Akamai, its business operations or any part thereof
(regardless of whether or not such employment opportunity is
accepted);
(b) an Executive who fails to
continue in the employ of Akamai, satisfactorily performing his or
her assigned duties, until the date actually set for his or her
involuntary termination;
(c) an Executive who does not sign
and return a separation agreement acceptable to and provided by the
Company that contains, among other things, a release (the
“Release”) in accordance with Section 5
below;
(d) an Executive who fails to return
all of Akamai’s property in his or her possession or under
his or her control, including, but not limited to, intellectual
property and other confidential information;
(e) an Executive who, despite
Akamai’s request, fails to execute any documents evidencing
Akamai’s interest in and to any intellectual
property;
(f) an Executive who is not employed
on the United States payroll of the Company or any of its
U.S.-based subsidiaries;
(g) an Executive who is not a member
of the Office of the CEO (or its successor group);
(h) the Chief Executive
Officer;
(i) the Executive
Chairman;
(j) an Executive who becomes totally
disabled or dies prior to the date set for his or her involuntary
termination by Akamai; and
(k) an Executive who is terminated
for “Cause”; and
(l) an Executive who, pursuant to a
change of control agreement with the Company, receives severance
pay and/or benefits upon a Change of Control Event, as that term is
defined in Section 9(c)(1)(b) of the Akamai Technologies, Inc.
2006 Stock Incentive Plan.
5. Severance Pay and
Benefits . Any Executive terminated for any reason
other than “Cause” as defined above shall be entitled
to the following severance pay benefits, all of which shall be paid
less applicable withholdings for taxes and other deductions
required by law:
(a) A lump sum payment equal to one
year of the Executive’s then-current base salary.
(b) A lump sum payment equal to the
annual incentive bonus at target that would have been payable to
the Executive under the Company’s then-current Executive
Bonus Plan, 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.
(c) 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 usual COBRA
procedures.
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All payments and benefits under this
Section 5 are conditioned upon the Executive’s
satisfaction of all eligibility requirements under this Plan,
including but not limited to, the execution of a separation
agreement acceptable to and provided by the Company that contains,
among other provisions, a full release of claims and, where
permitted by applicable law, an agreement not to compete with the
Company for one year following the Executive’s termination.
The payments and benefits described in Sections 5(a) and 5(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
6.
Section 409A . The payments under this
Plan shall be subject to Appendix A.
7. Funding .
All cash payments under the Plan shall be funded solely from
Akamai’s general assets.
8. Duration of
Plan . The initial term of the Plan shall commence
effective July 18, 2006 through December 31, 2006 and
shall automatically renew for successive one year periods unless
otherwise terminated by the Company. The Plan may be amended or
terminated at Akamai’s discretion without prior notice at any
time.
9. Plan
Administration . The general administration of the Plan
herein set forth and the responsibility for carrying out its
provisions shall be vested in the Plan Administrator. The Plan
Administrator shall be the “Administrator” within the
meaning of section 3(16) of ERISA and shall have all the
responsibilities and duties contained therein. Akamai is the Plan
Administrator of the Plan. The Board of Directors of Akamai may
delegate to an Administrative Committee the day-to-day operation
and administration of the Plan.
The Plan Administrator shall
discharge its duties with respect to the Plan solely in the
interest of the participants and their beneficiaries, with the
care, skill, prudence and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of a like character and with like objectives. However,
the inclusion of this language in the Plan is for the sole purpose
of informing the Plan Administrator of the applicable standard of
care under ERISA. It is not intended that this provision impose any
additional duties, responsibilities, or liabilities than would
otherwise apply under ERISA.
The Plan Administrator shall have
such powers as are necessary to discharge its duties, including,
but not limited to, interpretation and construction of the Plan,
sole discretion to determine all questions of eligibility,
participation and benefits and all other related or incidental
matters. The Plan Administrator shall decide all such questions in
accordance with the terms of the controlling legal documents and
applicable law, and its decision will be binding on Akamai, the
participant, the participant’s spouse or other dependent or
beneficiary and all other interested parties.
The Plan Administrator may adopt
rules and procedures of uniform applicability in its interpretation
and implementation of the Plan.
The Plan Administrator may require
each participant to submit, in such form as it shall deem
reasonable and acceptable, proof of any information which the Plan
Administrator finds necessary or desirable for the proper
administration of the Plan.
The Plan Administrator shall
maintain such records as are necessary to carry out the provisions
of the Plan. The Plan Administrator shall also make all disclosures
which are required by ERISA and any subsequent amendments
thereto.
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10. Questions and Claims
Procedure . Any questions concerning eligibility to
participate in the Plan and the payment of any severance pay or
benefits hereunder should be directed to the Administrative
Committee. The Plan will comply with the Claims Procedure set forth
in ERISA regulations at Title 29 C.F.R. §
2560.503-1.
10.1. Claim for
Benefits .
(a) Any person claiming benefits
under the Plan (“Claimant”) may be required to submit
an application therefor, together with such other documents and
information as the Administrative Committee may require
(“Application”).
(b) Within ninety (90) days
following receipt of the Application, the Administrative
Committee’s authorized delegate will review the claim and
furnish the Claimant with written notice of the decision rendered
with respect to the Application.
(c) Should special circumstances
require an extension of time for processing the claim, written
notice of the extension will be furnished to the Claimant prior to
the expiration of the initial ninety (90) day
period.
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(i)
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The notice will
indicate the special circumstances requiring an extension of time
and the date by which a final decision is expected to be
rendered.
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(ii)
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In no event
will the period of the extension exceed ninety (90) days from
the end of the initial (90) day period.
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10.2 Content of
Denial . In the case of a denial of the
Claimant’s Application, the written notice will set
forth:
(a) The specific reasons for the
denial;
(b) References to the Plan
provisions upon which the denial is based;
(c) A description of any additional
information or material necessary for perfection of the Application
(together with an