Exhibit 99.1
AKAMAI TECHNOLOGIES, INC.
Restricted Stock Unit Agreement
Granted Under the Second Amended and Restated 1998 Stock Incentive Plan
1. Grant of Award.
This Agreement evidences the grant by Akamai Technologies, Inc., a Delaware
corporation (the "Company") on January 16, 2007 (the "Grant Date") to
____________ (the "Participant") of ________ restricted stock units of the
Company (individually, an "RSU" and collectively, the "RSUs"), subject to the
terms and conditions set forth in this Agreement and the Second Amended and
Restated 1998 Stock Incentive Plan (the "Plan"). Each RSU represents the right
to receive one share of the common stock, par value $.01 per share, of the
Company ("Common Stock") as provided in this Agreement. The shares of Common
Stock that are issuable upon vesting of the RSUs are referred to in this
Agreement as "Shares." Capitalized terms used but not defined in this Agreement
shall have the meanings specified in the Plan.
2. Vesting; Forfeiture.
Subject to the terms and conditions of this Agreement and provided that the
Participant continues to provide services until the Vesting Date (as defined
below):
(a) This award shall vest as to one-third of the original number of
RSUs annually on the second business day following the date on which the Company
releases its earnings results for the preceding fiscal year in the event that
the Company achieved the following revenue metrics for the applicable fiscal
year:
2007 $[**]
2008 $[**]
2009 $[**]
The date on which RSUs vest may be referred to herein as the "Vesting Date." If
the Company does not meet the applicable revenue metric during a fiscal year,
the 33% of RSUs eligible for vesting in connection therewith shall be forfeited.
(b) Except as otherwise provided in this Xxxxxxx 0, XXXx shall not
continue to vest unless the Participant is, and has been at all times since the
Grant Date, an employee, officer or director of, or consultant or advisor to,
the Company.
(c) In the event that the Participant's employment with the Company
ceases or is terminated for any reason, including by reason of death or
disability, other than "Cause" (as defined below), then the number of RSUs which
shall be vested shall be the number that are vested as of the date of actual
termination. For purposes of this Section 2, "Cause" shall mean unsatisfactory
job performance (as determined by the Company), willful misconduct, fraud, gross
negligence, disobedience or dishonesty. In the event that the Participant's
employment with the Company is terminated for Cause, all unvested RSUs shall be
forfeited effective as of the date of termination.
(d) For purposes of this Agreement, employment with the Company shall
include employment with a parent, subsidiary, affiliate or division of the
Company.
3. Distribution of Shares.
(a) The Company will distribute to the Participant (or to the
Participant's estate in the event that his or her death occurs after a Vesting
Date but before distribution of the corresponding Shares), the Shares of Common
Stock represented by RSUs that vested on such vesting date as soon as
administratively practicable after each Vesting Date (each such date of
distribution is hereinafter referred to as a "Settlement Date") but in any event
within the period ending on the later to occur of the date that is 75 days from
the end of (i) Participant's tax year that includes the applicable Vesting Date
or (ii) the Company's tax year that includes the applicable Vesting Date.
(b) The Company shall not be obligated to issue to the Participant the
Shares upon the vesting of any RSU (or otherwise) unless the issuance and
delivery of such Shares shall comply with all relevant provisions of law and
other legal requirements including, without limitation, any applicable federal
or state securities laws and the requirements of any stock exchange upon which
shares of Common Stock may then be listed.
4. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge, hypothecate or
otherwise dispose of, by operation of law or otherwise (collectively "transfer")
any RSUs, or any interest therein, except by will or the laws of descent and
distribution.
5. Dividend and Other Shareholder Rights.
Except as set forth in the Plan, neither the Participant nor any person
claiming under or through the Participant shall be, or have any rights or
privileges of, a stockholder of the Company in respect of the Shares issuable
pursuant to the RSUs granted hereunder until the Shares have been delivered to
the Participant.
6. Provisions of the Plan; Acquisition Event or Change in Control Event.
(a) This Agreement is subject to the provisions of the Plan, a copy of
which is made available to the Participant with this Agreement.
(b) Upon the occurrence of an Acquisition Event (as defined in the
Plan) that is not a Change in Control Event (as defined in the Plan), each RSU
(whether vested or unvested) shall inure to the benefit of the Company's
successor and shall apply to the cash, securities or other property which the
Common Stock was converted into or exchanged for pursuant to such Acquisition
Event in the same manner and to the same extent as they applied to the Common
Stock subject to such RSU.
(c) Upon the occurrence of a Change in Control Event (regardless of
whether such event also constitutes an Acquisition Event), each RSU shall become
exercisable, realizable or vested as to number of RSUs as would be vested
pursuant to Section 2(a) as though the Grant Date were the date that is one year
prior to the Grant Date.
7. Withholding Taxes.
(a) Regardless of any action the Company or the Participant's employer
("Employer") takes with respect to any or all income tax, social insurance,
payroll tax, payment on account or other tax-related withholding ("Tax-Related
Items"), the Participant acknowledges that the ultimate liability for all
Tax-Related Items legally due by him or her is and remains the Participant's
responsibility and that the Company and/or the Employer (1) make no
representations or undertakings regarding the treatment of any Tax-Related Items
in connection with any aspect of the Restricted Stock
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Unit award, including the grant and vesting of the Restricted Stock Units, the
receipt of cash or any dividends or dividend equivalents; and (2) do not commit
to structure the terms of the award or any aspect of the Restricted Stock Units
to reduce or eliminate the Participant's liability for Tax-Related Items.
(b) In the event that the Company, subsidiary, affiliate or division
is required to withhold any Tax-Related Items as a result of the award or
vesting of the Restricted Stock Units, or the receipt of cash or any dividends
or dividend equivalents, the Participant shall pay or make adequate arrangements
satisfactory to the Company, subsidiary, affiliate or division to satisfy all
withholding and payment on account obligations of the Company, subsidiary,
affiliate or division. The obligations of the Company under this Agreement,
including the delivery of shares upon vesting, shall be conditioned on
compliance by the Participant with this Section 7. In this regard, the
Participant authorizes the Company and/or the Employer to withhold all
applicable Tax-Related Items legally payable by the Participant from his or her
wages or other cash compensation paid to the Participant by the Company and/or
the Employer. Alternatively, or in addition, if permissible under local law, the
Company may withhold in shares of Common Stock an amount of shares sufficient to
cover the Participant's tax liability.
(c) The Participant will pay to the Company or the Employer any amount
of Tax-Related Items that the Company or the Employer may be required to
withhold as a result of the Participant's participation in the Plan or the
Participant's award that cannot be satisfied by the means previously described.
(d) As a condition to receiving any Shares, on the date of this
Agreement, Participant must execute the Irrevocable Standing Order to Sell
Shares attached hereto, which authorizes the Company and Xxxxxxx Xxxxxx & Co.,
Inc. (or such substitute brokerage firm as is contracted to manage the Company's
employee equity award program, the "Broker") to take the actions described in
Section 7(b) and this Section 7(d) (the "Standing Order").
(e) Participant understands and agrees that the number of Shares that
the Broker will sell will be based on the closing price of the Common Stock on
the last trading day before the applicable Vesting Date. The Participant agrees
to execute and deliver such documents, instruments and certificates as may
reasonably be required in connection with the sale of the Shares pursuant to
this Section 7.
(f) Participant agrees that the proceeds received from the sale of
Shares pursuant to Section 7(d) will be used to satisfy the Tax-Related Items
and, accordingly, Participant hereby authorizes the Broker to pay such proceeds
to the Company for such purpose. Participant understands that to the extent that
the proceeds obtained by such sale exceed the amount necessary to satisfy the
Tax-Related Items, such excess proceeds shall be deposited into the Participants
account with Broker. Participant further understands that any remaining Shares
shall be deposited into such account.
(g) The Participant represents to the Company that, as of the date
hereof, he is not aware of any material nonpublic information about the Company
or the Common Stock. The Participant and the Company have structured this
Agreement to constitute a "binding contract" relating to the sale of Common
Stock pursuant to this Section 7, consistent with the affirmative defense to
liability under Section 10(b) of the Securities Exchange Act of 1934 under Rule
10b5-1(c) promulgated under such Act.
8. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and agrees
that the vesting of the RSUs pursuant to Section 2 hereof is earned only by
continuing service as an employee at the will of the Company (not through the
act of being hired or purchasing shares hereunder). The Participant further
acknowledges and agrees that the transactions contemplated hereunder and the
vesting
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schedule set forth herein do not constitute an express or implied promise of
continued engagement as an employee or consultant for the vesting period, for
any period, or at all.
(b) Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained in
this Agreement may be waived, either generally or in any particular instance, by
the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 8(e).
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Entire Agreement; Conflicts and Interpretation. This Agreement and
the Plan constitute the entire agreement between the parties, and supersedes all
prior agreements and understandings, relating to the subject matter of this
Agreement. In the event of any conflict between this Agreement and the Plan, the
Plan shall control. In the event of any ambiguity in this Agreement, or any
matters as to which this Agreement is silent, the Plan shall govern including,
without limitation, the provisions thereof pursuant to which the Board of
Directors (or a committee thereof) has the power, among other things, to (i)
interpret the Plan, (ii) prescribe, amend and rescind rules and regulations
relating to the Plan and (iii) make all other determinations deemed necessary or
advisable for the administration of the Plan.
(h) Amendment. The Company may modify, amend or waive the terms of
this prospectively or retroactively, but no such modification, amendment or
waiver shall impair the rights of the Participant without his or her consent,
except as required by applicable law, NASDAQ or stock exchange rules, tax rules
or accounting rules. Any provision for the benefit of the Company contained in
this Agreement may be waived, either generally or in any particular instance, by
the Board of Directors (or a committee thereof) of the Company. The waiver by
either party of compliance with any provision of this Agreement shall not
operate or be construed as a waiver of any other provision of this Agreement, or
of any subsequent breach by such party of a provision of this Agreement.
(i) Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the State of Delaware without
regard to any applicable conflicts of laws.
(j) Unfunded Rights. The right of the Participant to receive Common
Stock pursuant to this Agreement is an unfunded and unsecured obligation of the
Company. The Participant
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shall have no rights under this Agreement other than those of an unsecured
general creditor of the Company.
(k) Electronic Delivery. The Company may, in its sole discretion,
decide to deliver any documents related to the RSUs awarded under and
participation in the Plan or future options that may be awarded under the Plan
by electronic means or to request the Participant's consent to participate in
the Plan by electronic means. The Participant hereby consents to receive such
documents by electronic delivery and, if requested, to agree to participate in
the Plan through an on-line or electronic system established and maintained by
the Company or another third party designated by the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written. Electronic acceptance of
this Agreement pursuant to the Company's instructions to Participant (including
through an online acceptance process managed by the Company's agent) is
acceptable.
AKAMAI TECHNOLOGIES, INC.
By:
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Name:
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Title:
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[Name of Participant]
Address:
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IRREVOCABLE STANDING ORDER TO SELL SHARES
The Participant has been granted restricted stock units ("RSUs") by Akamai
Technologies, Inc. ("Akamai"), which is evidenced by a restricted stock unit
agreement between me and Akamai (the "Agreement," copy attached). Provided that
I remain employed by Akamai on each vesting date, the shares vest according to
the provisions of the Agreement.
I understand that on each vesting date, the shares issuable in respect of
vested RSUs (the "Shares") will be deposited into my account at Xxxxxxx Xxxxxx &
Co., Inc. ("Schwab") and that I will recognize taxable ordinary income as a
result. Pursuant to the terms of the Agreement and as a condition of my receipt
of the Shares, I understand and agree that, for each vesting date, I must sell a
number of shares sufficient to satisfy all withholding taxes applicable to that
ordinary income. Therefore, I HEREBY DIRECT SCHWAB TO SELL, AT THE MARKET PRICE
AND ON EACH VESTING DATE LISTED ABOVE (OR THE FIRST BUSINESS DAY THEREAFTER IF A
VESTING DATE SHOULD FALL ON A DAY WHEN THE MARKET IS CLOSED), THE NUMBER OF
SHARES THAT AKAMAI INFORMS SCHWAB IS SUFFICIENT TO SATISFY THE APPLICABLE
WITHHOLDING TAXES, WHICH SHALL BE CALCULATED BASED ON THE CLOSING PRICE OF
AKAMAI'S COMMON STOCK ON THE LAST TRADING DAY BEFORE EACH VESTING DATE. I
understand that Schwab will remit the proceeds to Akamai for payment of the
withholding taxes.
I hereby agree to indemnify and hold Schwab harmless from and against all
losses, liabilities, damages, claims and expenses, including reasonable
attorneys' fees and court costs, arising out of any (i) negligent act, omission
or willful misconduct by Akamai in carrying out actions pursuant to the third
sentence of the preceding paragraph and (ii) any action taken or omitted by
Schwab in good faith reliance upon instructions herein or upon instructions or
information transmitted to Schwab by Akamai pursuant to the third sentence of
the preceding paragraph.
I understand and agree that by signing below or effecting an online
acceptance of the Agreement, I am making an Irrevocable Standing Order to Sell
Shares which will remain in effect until all of the shares have vested. I also
agree that this Irrevocable Standing Order to Sell Shares is in addition to and
subject to the terms and conditions of any existing Account Agreement that I
have with Schwab.
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Signature
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Print Name
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