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Exhibit (d)(2)
AKAMAI TECHNOLOGIES, INC.
Restricted Stock Agreement Under
Second Amended and Restated 1998 Stock Incentive Plan
This RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into as of May
5, 2001 (the "Grant Date"), between Akamai Technologies, Inc., a Delaware
corporation (the "Company"), and ___________________________________ (the
"Grantee").
RECITALS
1. The Company has adopted the Second Amended and Restated 1998 Stock
Incentive Plan (the "Plan") that provides for the grant under certain
circumstances of shares (the "Shares") of common stock, par value $0.01, of the
Company (the "Common Stock").
2. In consideration of the grant of the Awarded Shares (as defined below)
and other benefits, Grantee is willing to tender for cancellation certain
previously-granted options to purchase Common Stock of the Company (the
"Tendered Options") and to abide by the obligations imposed on Grantee under
this Agreement.
NOW THEREFORE, in consideration of the mutual benefits hereinafter
provided, and each intending to be legally bound, the Company and Grantee hereby
agree as follows:
1. EFFECT OF THE PLAN. Grantee will abide by, and the Awarded Shares
granted to Grantee will be subject to, all of the provisions of the Plan and of
this Agreement, together with all rules and determinations from time to time
issued by the Company's Compensation Committee (the "Committee") and by the
Board of Directors of the Company (the "Board") pursuant to the Plan. The
Company hereby reserves the right to amend, modify, restate, supplement or
terminate the Plan without the consent of Grantee, so long as such amendment,
modification, restatement or supplement shall not materially reduce the rights
and benefits available to Grantee hereunder, and this Agreement shall be
subject, without further action by the Company or Grantee, to such amendment,
modification, restatement or supplement.
2. GRANT. Subject to the terms and conditions of the Plan and this
Agreement, the Company hereby grants and issues to Grantee ____________ Shares
(the "Awarded Shares") in exchange for the Tendered Options. This Agreement
shall evidence Grantee's ownership of the Awarded Shares, and Grantee
acknowledges that he/she will not receive a stock certificate representing the
Awarded Shares. The Company or Xxxxxxx Xxxxxx & Co., Inc. (or such other broker
with which the Company has established a relationship) ("Schwab") shall retain
custody of the Awarded Shares until the Awarded Shares have vested in accordance
with Section 3 of this Agreement. Upon vesting of the Awarded Shares, the
Company shall instruct its transfer agent to deposit that portion of the Awarded
Shares which has vested (the "Vested Shares") into Grantee's existing stock
option account at Schwab (the "Account"), subject to payment (through sale of a
portion of the Vested Shares) of all applicable withholding taxes. The Awarded
Shares are being granted in consideration for cancellation of the Tendered
Options. No additional consideration is required to be paid by Grantee; however,
Grantee agrees that the Shares shall be subject to all of the terms and
conditions set forth in this Agreement and the Plan, including, but not limited
to, the forfeiture conditions set forth in Section 3.2 of this Agreement, the
restrictions on transfer set forth in Section 3.5 of this Agreement and the
payment of withholding taxes as set forth in Section 5 of this Agreement.
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3. AWARDED SHARES.
3.1 VESTING SCHEDULE; SERVICE REQUIREMENT. The Awarded Shares shall
vest if Grantee has been employed continuously from the Grant Date to the
applicable date that such portion of the Awarded Shares vests (each, the
"Vesting Date"). [One of the vesting schedules set forth below will be inserted
here, as applicable.] Shares that have not yet vested pursuant to this Agreement
are referred to herein as "Unvested Shares."
[The following vesting schedule will be inserted into the Restricted Stock
Agreements for all employees other than those who tender bonus options or
options with a student vesting schedule:]
Twenty-five percent (25%) of the Awarded Shares will vest six months after
the Grant Date (November 5, 2001). An additional 7.5% of the Awarded Shares
shall vest at the end of each successive full three-month period following
the first Vesting Date (i.e., February 5, May 5, August 5 and November 5)
until the third anniversary of the Grant Date, at which time all of the
Awarded Shares shall become fully vested.
[The following vesting schedule will be inserted into the Restricted Stock
Agreements for all employees who tender bonus options:]
The Vesting Date shall occur seven days after the Grant Date, at which time
100% of the Awarded Shares shall vest.
[The following vesting schedule will be inserted into the Restricted Stock
Agreements for all employees who tender options with a student vesting
schedule:]
Twenty-five percent (25%) of the Awarded Shares will vest six months after
the Grant Date (November 5, 2001). An additional 25% of the Awarded Shares
shall vest at the end of each full twelve-month period following the first
Vesting Date (i.e., November 5, 2002, November 5, 2003, and November 5,
2004).
3.2 CONDITIONS OF FORFEITURE. If Grantee's employment with the
Company is terminated for any or no reason, including but not limited to
Grantee's voluntary resignation or termination by the Company without cause, all
Unvested Shares shall, without further action of any kind by the Company, be
forfeited.
For purposes of this Agreement, termination from employment shall be deemed
to occur on the last day actually worked by Grantee, rather than the last day
that Grantee is on the payroll of the Company. The Committee, in its sole
discretion, shall determine whether a leave of absence shall constitute a
termination of employment.
Unvested Shares that are forfeited shall be immediately transferred to the
Company without any payment by the Company, and the Company shall have the full
right to cancel any evidence of Grantee's ownership of such forfeited Shares or
take any other action necessary to demonstrate that Grantee no longer owns such
forfeited Shares automatically upon such forfeiture. Following such forfeiture,
Grantee shall have no further rights with respect to such forfeited Shares.
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3.3 CHANGE IN CONTROL EVENT. Upon a Change in Control Event (as
defined in the Plan), the number of Vested Shares shall be calculated pursuant
to Section 3.1 of this Agreement as though an additional year had elapsed.
3.4 NON-TRANSFERABILITY. This Agreement may not be transferred,
assigned, pledged or otherwise encumbered by Grantee in any manner whatsoever,
except that it may be transferred by will or the laws of descent and
distribution. References to Grantee, to the extent relevant in the context,
shall include references to authorized transferees. Except as otherwise
determined by the Committee, Grantee shall not sell, transfer, assign, pledge or
otherwise encumber or dispose of, by operation of law or otherwise, any Unvested
Shares (each, a "transfer"). Any such transfer by Grantee in violation of this
Section 3.4 shall be void and of no force or effect, and shall result in the
immediate forfeiture of all Unvested Shares.
4. DIVIDEND AND VOTING RIGHTS. Subject to the restrictions contained in
this Agreement, Grantee shall have the rights of a shareholder with respect to
the Awarded Shares, including the right to vote all such Shares, including
Unvested Shares, and to receive all dividends, cash or stock, paid or delivered
thereon, from and after the earlier of the date hereof. In the event of
forfeiture of Unvested Shares, Grantee shall have no further rights with respect
to such Unvested Shares. However, the forfeiture of Unvested Shares pursuant to
Section 3.2 hereof shall not create any obligation to repay dividends received
as to such Unvested Shares, nor shall such forfeiture invalidate any votes given
by Grantee with respect to such Shares prior to forfeiture.
5. WITHHOLDING OF TAXES.
5.1 The Company's obligation to deliver Shares to Grantee upon the
vesting of such shares shall be subject to the satisfaction of all applicable
federal, state and local income and employment tax withholding requirements
("Withholding Taxes"). In order to satisfy all Withholding Taxes due upon
vesting of Grantee's Shares, Grantee agrees to the following:
(a) As a condition of receiving any Vested Shares, on the date of
this Agreement Grantee must execute the Irrevocable Standing Order to Sell
Shares attached hereto, which authorizes Akamai and Schwab to take the actions
described in this subsection 5.1(a) (the "Standing Order"). Grantee authorizes
Schwab to sell, at the market price and on the Vesting Date (or the first
business day thereafter if Vesting Date falls on a day when the market is
closed), the number of Vested Shares that Akamai has instructed Schwab is
necessary to obtain proceeds sufficient to satisfy the Withholding Taxes.
Grantee understands and agrees that the number of shares that Schwab will sell
will be based on the closing price of the Common Stock on the last trading day
before the Vesting Date.
(b) Grantee agrees that the proceeds received from the sale of Vested
Shares pursuant to Section 5.1(a) will be used to satisfy the Withholding Taxes
and, accordingly, Grantee hereby authorizes Schwab to pay such proceeds to the
Company for such purpose. Grantee understands that to the extent that the
proceeds obtained by such sale exceed the amount necessary to satisfy the
Withholding Taxes, such excess proceeds shall be deposited into the Account.
Grantee further understands that any remaining Vested Shares shall be deposited
into the Account.
(c) Grantee acknowledges and agrees that, in the event that there is
not a market in the Common Stock, Akamai will have the right to make other
arrangements to satisfy the Withholding Taxes due upon vesting of Grantee's
Shares.
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5.2 GRANTEE ACKNOWLEDGES THAT HE OR SHE HAS BEEN INFORMED OF THE
AVAILABILITY OF MAKING AN ELECTION IN ACCORDANCE WITH SECTION 83(B) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED; THAT SUCH ELECTION MUST BE FILED WITH
THE INTERNAL REVENUE SERVICE WITHIN 30 DAYS OF THE TRANSFER OF SHARES TO
GRANTEE; AND THAT GRANTEE IS SOLELY RESPONSIBLE FOR MAKING SUCH ELECTION.
6. NOTICES. 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, postage prepaid, addressed to the
other party hereto at the address shown beneath his, her 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 6.
7. 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.
8. PROVISIONS OF THE PLAN. This Agreement is subject to the provisions of
the Plan, a copy of which is furnished to Grantee with this Agreement.
9. NO RIGHT TO EMPLOYMENT OR OTHER STATUS. This Agreement shall not be
construed as giving Grantee the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with Grantee free from
any liability or claim under this Agreement or the Plan, except as expressly
provided in this Agreement.
10. NATURE OF PAYMENTS. Any and all grants or deliveries of Shares
hereunder shall constitute special incentive payments to Grantee and shall not
be taken into account in computing the amount of salary or compensation of
Grantee for the purpose of determining any retirement, death or other benefits
under (a) any retirement, bonus, life insurance or other employee benefit plan
of the Company, or (b) any agreement between the Company on the one hand, and
Grantee on the other hand, except as such plan or agreement shall otherwise
expressly provide.
11. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Company and Grantee and their respective heirs, executors,
administrators, legal representatives, successors and assigns, subject to the
restrictions on transfer set forth in Section 3 of this Agreement.
12. 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.
13. AMENDMENT; WAIVER; MISCELLANEOUS.
(a) This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Purchaser. 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. A waiver on one occasion shall not be deemed to be a waiver of the same
or any other breach on a future occasion.
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(b) If there is any inconsistency between the provisions of this
Agreement and of the Plan, the provisions of the Plan shall govern. Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Plan.
(c) With the intention of making Schwab a third-party beneficiary to
this Agreement, Akamai hereby agrees 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: (i) Akamai's
non-compliance with the terms of this Agreement; (ii) Grantee's non-compliance
with the terms of this Agreement; (iii) any negligent act, omission or willful
misconduct by Akamai or Grantee in connection with the subject matter of this
Agreement; or (iv) any action taken or omitted by Schwab in good faith reliance
upon instructions or information transmitted to Schwab by Akamai in connection
with the subject matter of this Agreement. The terms of this paragraph shall not
apply to any losses, liabilities, damages, claims and expenses, including
reasonable attorneys' fees and court costs, arising out of Xxxxxx'x negligence
or willful misconduct in connection with the subject matter of this Agreement.
14. ENTIRE AGREEMENT. This Agreement and the Plan embody the entire
agreement of the parties hereto with respect to the Awarded Shares, the
consideration for the Awarded Shares, and all other matters contained herein.
This Agreement and the Plan supersede and replace any and all prior oral or
written agreements with respect to the subject matter hereof. To the extent that
the previously-granted stock options tendered by Grantee pursuant to this
Agreement were subject to special vesting arrangements, including but not
limited to accelerated vesting of those options under certain circumstances
described in Grantee's employment offer letter or elsewhere, such special
vesting arrangements are hereby null and void.
IN WITNESS WHEREOF, the Company and Grantee have caused this Agreement to
be duly executed as of the date first above written.
AKAMAI TECHNOLOGIES, INC.
By:
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Xxxxxx Xxxxxxxx,
Chief Executive Officer
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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[employee name]
Address:
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IRREVOCABLE STANDING ORDER TO SELL SHARES
I, ___________________________________, have been granted _____________
shares of restricted stock by Akamai Technologies, Inc. ("Akamai"), which is
evidenced by a restricted stock 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 following schedule:
[applicable vesting schedule will be inserted here]
I understand that on each vesting date, the vested shares (the "Shares")
will be deposited into my account no. _____________ 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, 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 Signature (Additional Account Holder)
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Print Name Print Name
Dated: May __, 2001 Dated: May __, 2001
