exv10w36



 







EXHIBIT 10.36

 




AKAMAI TECHNOLOGIES, INC.’S

EXECUTIVE SEVERANCE PAY PLAN

AND SUMMARY PLAN DESCRIPTION




Effective July 18, 2006




     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.



     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.”



     5.      Severance Pay 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.



     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 thirty (30) days of the
Executive’s execution of the separation agreement described herein.



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     6.      No
Acceleration or Deferral. Neither the Executive nor the Company shall have the
right to accelerate or defer the delivery of the payments to be made pursuant to this Plan. If the
payments to be made under this Plan are determined to be “nonqualified deferred compensation”
within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended and the
guidance issued thereunder (“Section 409A”), and the Executive is a “specified employee” within the
meaning of Section 409A, then the delivery of any payments to be made hereunder will be delayed to
the date that is six months following the Executive’s termination date.



     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.



     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



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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.




	 	(i)	 	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.
	 
	 	(ii)	 	In no event will the period of the extension exceed
ninety (90) days from the end of the initial (90) day period.





               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 explanation of why the material or information is necessary); and



                             (d)      An explanation of the Plan’s claim review procedure.



               10.3      Appeals. In order to appeal the decision rendered with respect to his or her
Application or with respect to the amount of his or her benefit, the Claimant must follow the
procedures set forth in this Section 10.3.



                             (a)      The appeal must be made in writing:




	 	(i)	 	If the claim was expressly rejected, within
sixty-five (65) days after the date of notice of the decision with
respect to the Application; or
	 
	 	(ii)	 	If the claim was neither approved nor denied within
the applicable period provided in Section 10.1 above, within sixty-five
(65) days after the expiration of that period.





                             (b)      If the Claimant does not file the appeal within this time period (or request in writing an
extension from the Administrative Committee), the Claimant will be precluded from appealing the
decision at a later time.



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                             (c)      The Claimant may request that his or her Application be given a full and fair review by
the Administrative Committee. The Claimant may review all pertinent documents and submit issues
and comments in writing in connection with the appeal.



                             (d)      The decision of the Administrative Committee will be made promptly, and not later than
sixty (60) days after the Administrative Committee’s receipt of a request for review, unless
special circumstances require an extension of time for processing. In such a case, a decision will
be rendered as soon as possible, but not later than one hundred twenty (120) days after receipt of
the request for review.



                             (e)      The decision on review will be in writing and will include specific reasons for the
decision, written in a manner designed to be understood by the Claimant, with specific references
to the pertinent Plan provisions upon which the decision is based.



     11.      Tax and Other Withholdings. Akamai may withhold from any payment under the Plan
any federal, state, or local taxes required by law to be withheld with respect to such payment and
such sum as Akamai may reasonably estimate is necessary to cover any taxes for which Akamai may be
liable and which may be assessed with regard to such payment. Akamai may also withhold sums to
cover an Executive’s share of any applicable group health insurance premiums. Akamai may also
withhold sums owed to Akamai by an Executive which have not been repaid in full before the time for
payment of any benefits due under this Plan.



     12.      Agent for Service of Legal Process. Legal process with respect to claims under
the Plan may be served on the Plan Administrator.



     13.      Expenses. All costs and expenses incurred in administering the Plan, including
the expenses of the Plan Administrator, shall be borne by Akamai.



     14.      Plan Not an Employment Contract. The Plan is not a contract between Akamai and
any Executive, nor is it a condition of employment of any Executive. Nothing contained in the Plan
gives, or is intended to give, any Executive the right to be retained in the service of Akamai, or
to interfere with the right of Akamai to discharge or terminate the employment of any Executive at
any time and for any reason. Except as provided in paragraph 2 above, no Executive shall have the
right or claim to benefits beyond those expressly provided in this Plan. All rights and claims are
limited as set forth in the Plan.



     15.      Indemnification. To the extent permitted by law, the Plan Administrator and all
Executives, agents and representatives of the Plan Administrator shall be indemnified by Akamai and
saved harmless against any claim and the expenses of defending against such claims, resulting from
any action or conduct relating to the administration of the Plan except to the extent that such
claims arise from gross negligence, willful neglect, or willful misconduct. However, Akamai will
have the right to select counsel and to control the prosecution or defense of any lawsuit.
Additionally, Akamai will not be required to indemnify any person for any amount incurred through
any settlement unless Akamai consents to the settlement.



     16.      Separability. In case any one or more of the provisions of this Plan (or part
thereof) shall be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions hereof, and this Plan shall be
construed as if such invalid, illegal or unenforceable provisions (or part thereof) never had been
contained herein.



     17.      Non-Assignability. No right or interest of any participant in the Plan shall be
assignable or transferable in whole or in part either directly or by operation of law or otherwise,
including, but not limited to, execution, levy, garnishment, attachment, pledge or bankruptcy,
provided, however, that this provision shall not be applicable in the case of obligations of a
participant to Akamai.



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     18.      Amendment or Termination. Akamai reserves the right, through its Board of
Directors, to amend, modify or terminate this Plan at any time.



     19.      Integration with Other Pay or Benefits Requirements. The pay and benefits
provided for in the Plan are the maximum benefits that Akamai will pay. To the extent that any
federal, state or local law, including, without limitation, so-called “plant closing” laws,
requires Akamai to make a payment of any kind to an Executive because of that Executive’s
involuntary termination due to a Layoff, Reduction in Force, Plant or Facility Closing, Sale of
Business, or similar event, the benefits provided under this Plan shall be reduced in an amount
equal to any such payment(s). Akamai intends for the benefits provided under this Plan to satisfy
any and all statutory obligations which may arise out of an Executive’s involuntary termination for
the foregoing reasons and the Plan Administrator shall so construe and implement the terms of the
Plan.



     20.      Governing Law. The Plan and the rights of all persons under the Plan shall be
construed in accordance with and under applicable provisions of ERISA, and the regulations
thereunder, and the laws of the Commonwealth of Massachusetts to the extent not pre-empted by
federal law.



     21.      Gender and Number. Except where otherwise indicated by the context, any masculine
gender used herein shall also include the feminine and vice versa, and the definition of any term
herein in the singular shall also include the plural, and vice versa.



     22.      Statement of ERISA Rights. Participants in the Plan are entitled to certain
rights and protections under ERISA. ERISA provides that all Plan participants shall be entitled
to:



               (a)      Examine, without charge, at the Plan Administrator’s office all Plan documents, including
insurance contracts, collective bargaining agreements, and copies of all documents filed by the
Plan with the United States Department of Labor and Internal Revenue Service, such as annual
reports and plan descriptions.



               (b)      Obtain copies of all Plan documents and other plan information upon written request to the
Plan Administrator.



     The Plan Administrator may make a reasonable charge for the copies.



     In addition to creating rights for Plan participants, ERISA imposes duties upon the people who
are responsible for the operation of the Plan. The people who operate the Plan, called
“fiduciaries” of the Plan, have a duty to do so prudently and in the interest of all Plan
participants and beneficiaries. No one, including Akamai or any other person, may fire a
participant or otherwise discriminate against the participant in any way for the purpose of
preventing the participant from obtaining a benefit or exercising his or her rights under ERISA.
If a participant’s claim for a benefit is denied in whole or in part, the participant must receive
a written explanation of the reason for the denial. The participant has the right to have the Plan
Administrator review and reconsider the claim. Under ERISA, there are steps a participant can take
to enforce the above rights. For instance, if the participant requests materials from the Plan
Administrator and does not receive them within 30 days, the participant may file suit in a federal
court. In such a case, the court may require the Plan Administrator to provide the materials and
pay the participant up to $100 a day until the participant receives the materials, unless the
materials were not sent because of reasons beyond the control of the Plan Administrator. If a
participant has a claim for benefits which is denied or ignored, in whole or in part, the
participant may file suit in a state or federal court. If it should happen that Plan fiduciaries
misuse the Plan’s money, or if a participant is discriminated against for asserting his or her
rights, the participant may seek assistance from the United States Department of Labor, or may file
suit in a federal court. The court will decide who should pay court costs and legal fees.



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If the
participant is successful, the court may order the person whom the participant sued to pay these
costs and fees. If the participant loses, the court may order the participant to pay these costs
and fees, if, for example, it finds the claim is frivolous. If the participant has any questions
about this Plan, the participant should contact the Plan Administrator. If a participant has any
questions about this statement or about his or her rights under ERISA, the participant should
contact the nearest Area Office of Pension and Welfare Benefits, United States Department of Labor.




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MISCELLANEOUS INFORMATION




	 	 	 	 	 
	1.

	 	PLAN NAME:
	 	Akamai Technologies, Inc.’s 2006 Executive Severance Pay Plan
	 
	 	 	 	 
	2.

	 	EMPLOYER:

(PLAN SPONSOR)
	 	Akamai Technologies, Inc.
	 
	 	 	 	 
	 

	 	ADDRESS:
	 	8 Cambridge Center
	 

	 	 	 	Cambridge, MA 02142
	 
	 	 	 	 
	 

	 	TELEPHONE:
	 	617-444-3000
	 
	 	 	 	 
	3.

	 	EMPLOYER ID NUMBER:
	 	04-3432319
	 
	 	 	 	 
	4.

	 	PLAN NUMBER:
	 	2006.1
	 
	 	 	 	 
	5.

	 	PLAN ADMINISTRATOR:
	 	Akamai Technologies, Inc.
	 

	 	 	 	2006 Executive Severance Pay Plan
	 

	 	 	 	8 Cambridge Center
	 

	 	 	 	Cambridge, MA 02142







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