AGREEMENT, made this 26th day of March, 1999, by and between George
Conrades ('Executive') and Akamai Technologies, Inc. (the 'Company').
WHEREAS, the Board of Directors of the Company (the 'Board') has
determined that it is in the best interests of the Company and its shareholders
for the Company to agree to provide benefits under circumstances described below
to the Executive in connection with his employment by the Company and due to his
responsibility for the policy-making functions of the Company; and
WHEREAS, the Executive has entered into a Non-Competition Agreement
under which he has agreed to not compete with the Company for the one-year
period following the termination of his employment with the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. If, within 24 months following a 'Change of Control' (as defined in
paragraph 2 below), Executive's employment with the Company terminates for any
reason, either voluntary or involuntary, other than for death or total
disability and other than for 'Cause' (as defined in paragraph 3 below):
(a) the Company will pay to Executive within 30 days of such
termination of employment a lump-sum cash payment equal to 299% of his
average annual base salary and bonus for the most recent three calendar
years ended before the Change of Control (or for such shorter portion
of that period as Executive performed services for the Company); and
(b) Executive, together with his dependents, will continue
following such termination of employment to participate fully in all
accident and health plans maintained or sponsored by the Company
immediately prior to the Change of Control, or receive substantially
the equivalent coverage (or the full value thereof in cash) from the
Company, until the first anniversary of such termination; and
(c) the Company will promptly reimburse Executive for any and
all legal fees and expenses incurred by him to enforce the provisions
of this Agreement.
2. A Change of Control will occur for purposes of this Agreement if
there occurs a 'Sale' as defined in the Stock Restriction Agreement dated as of
the date hereof between the Executive and the Company (the 'Stock Restriction
3. 'Cause' shall have the meaning ascribed to it in the Stock
4. If there has been a termination to which paragraph 1 applies, and
the Company and Executive agree that Executive shall provide post-termination
consulting or other services to the Company, the Company shall be entitled to
reduce its payment for such post-termination consulting or other services to the
extent of the payment made by it pursuant to paragraph 1. This paragraph 4 shall
not obligate either the Company or Executive to agree to Executive's provision
of post-termination services.
5. In the case of any dispute under this Agreement, Executive may
initiate binding arbitration in Boston, Massachusetts, before the American
Arbitration Association by serving a notice to arbitrate upon the Company or, at
Executive's election, institute judicial proceedings, in either case within 90
days of the effective date of his termination or, if later, his receipt of
notice of termination, or such longer period as may be reasonably necessary for
Executive to take such action if illness or incapacity should impair his taking
such action within the 90-day period. The Company shall not have the right to
initiate binding arbitration, and agrees that upon the initiation of binding
arbitration by Executive pursuant to this paragraph 5 the Company shall cause to
be dismissed any judicial proceedings it has brought against Executive relating
to this Agreement. The Company authorizes Executive from time to time to retain
counsel of his choice to represent Executive in connection with any and all
actions, proceedings, and/or arbitration, whether by or against the Company or
any director, officer, shareholder, or other person affiliated with the Company,
which may affect Executive's rights under this Agreement. The Company agrees (i)
to pay the fees and expenses of such counsel, (ii) to pay the cost of such
arbitration and/or judicial proceeding, and (iii) to pay interest to Executive
on all amounts owed to Executive under this Agreement during any period of time
that such amounts are withheld pending arbitration and/or judicial proceedings.
Such interest will be at the base rate as announced from time to time by The
First National Bank of Boston, or its successor.
In addition, notwithstanding any existing prior attorney-client
relationship between the Company and counsel retained by Executive, the Company
irrevocably consents to Executive entering into an attorney-client relationship
with such counsel and agrees that a confidential relationship shall exist
between Executive and such counsel.
6. If the Company is at any time before or after a Change of Control
merged or consolidated into or with any other corporation or other entity
(whether or not the Company is the surviving entity), or if substantially all of
the assets thereof are transferred to another corporation or other entity, the
provisions of this Agreement will be binding upon and inure to the benefit of
the corporation or other
entity resulting from such merger or consolidation or the acquirer of such
assets, and this paragraph 6 will apply in the event of any subsequent merger or
consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of assets described
above, nothing contained in this Agreement will detract from or otherwise limit
Executive's right to or privilege of participation in any stock option or
purchase plan or any bonus, profit sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or arrangement which may be
or become applicable to executives of the corporation resulting from such merger
or consolidation or the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of assets described
above, references to the Company in this Agreement shall unless the context
suggests otherwise be deemed to include the entity resulting from such merger or
consolidation or the acquirer of such assets of the Company.
7. All payments required to be made by the Company hereunder to
Executive or his dependents, beneficiaries, or estate will be subject to the
withholding of such amounts relating to tax and/or other payroll deductions as
may be required by law.
8. There shall be no requirement on the part of the Executive to seek
other employment or otherwise mitigate damages in order to be entitled to the
full amount of any payments and benefits to which Executive is entitled under
this Agreement, and the amount of such payments and benefits shall not be
reduced by any compensation or benefits received by Executive from other
9. Nothing contained in this Agreement shall be construed as a contract
of employment between the Company and the Executive, or as a right of the
Executive to continue in the employ of the Company, or as a limitation of the
right of the Company to discharge the Executive with or without Cause; provided
that the Executive shall have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement and shall not be
deemed to have waived any rights he may have either at law or in equity in
respect of such discharge.
10. No amendment, change, or modification of this Agreement may be made
except in writing, signed by both parties.
11. This Agreement shall not apply to a Change of Control which takes
place after the third anniversary of the date first written above.
Payments made by the Company pursuant to this Agreement shall be in
lieu of severance payments, if any, which might otherwise be available to
The provisions of this Agreement, shall be binding upon and shall inure
to the benefit of Executive, his executors, administrators, legal
representatives, and assigns, and the Company and its successors.
The validity, interpretation, and effect of this Agreement shall be
governed by the laws of The Commonwealth of Massachusetts.
The Company shall have no right of set-off or counterclaims, in respect
of any claim, debt, or obligation, against any payments to Executive, his
dependents, beneficiaries, or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
No right or interest to or in any payments shall be assignable by the
Executive; provided, however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that may be payable
after his death and shall not preclude the legal representative of his estate
from assigning any right hereunder to the person or persons entitled thereto
under his will or, in the case of intestacy, to the person or persons entitled
thereto under the laws of intestacy applicable to his estate. The term
'beneficiaries' as used in this Agreement shall mean a beneficiary or
beneficiaries so designated to receive any such amount, or if no beneficiary has
been so designated, the legal representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be subject to
anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt, or obligation, or to
execution, attachment, levy, or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void, and of no effect.
IN WITNESS WHEREOF, the Company and Executive have each caused this
Agreement to be duly executed and delivered as of the date set forth above.
AKAMAI TECHNOLOGIES, INC.
By: /s/ Daniel Lewin /s/ George Conrades
Daniel Lewin, President George Conrades