EXHIBIT 99.2
AKAMAI TECHNOLOGIES, INC.
Performance Share 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 ___________, 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 Company's Second Amended and
Restated 1998 Stock Incentive Plan (the "Plan"). Each RSU represents the right
to receive a number of shares of common stock, par value $.01 per share ("Common
Stock"), of the Company calculated pursuant to Section 2 of this Agreement. The
minimum number of shares issuable is zero; the maximum number of shares issuable
is equal to 300% of the number of shares issuable in respect of the other
Restricted Stock Unit Agreement entered into by the Participant and Employee on
the Grant Date above (the "Maximum RSU Bonus Award"). The shares, if any, 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.
(a) Subject to the terms and conditions of this Agreement including,
without limitation, Paragraph 2(c) below, this award shall vest on the 2009
Reporting Date if, and to the extent that, the Company achieves the financial
performance criteria set forth in Schedule 1 to this Agreement. Such date may be
referred to herein as a "Vesting Date."
(b) The "2009 Reporting Date" shall mean the date on which the Company
files its annual Public Company Financial Statements for fiscal year 2009 or
completes its annual Private Company Financial Statements for fiscal year 2009,
as applicable. If, on December 31, 2009, the Company is required to make
periodic reports under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Company's consolidated financial statements filed with the
Securities and Exchange Commission on Form 10-K shall constitute its "Public
Company Financial Statements" and shall apply. If, on December 31, 2009, the
Company is not required to make periodic reports under the Exchange Act, the
Company's regularly prepared annual audited financial statements prepared by
management shall be its "Private Company Financial Statements" and shall apply.
The applicable financial statements may be referred to herein as the "2009
Financial Statements."
(c) Except as otherwise provided in this Section 2, RSUs 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.
(d) 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, before December 31, 2009, then nothing shall be vested unless a
Change of Control Event (as defined in the Plan) has occurred prior thereto. If
the Participant dies or becomes disabled between December 31, 2009 and the 2009
Reporting Date, he or she shall be deemed to have been employed as of the 2009
Reporting Date.
(a) 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 on or after
December 31, 2009) the Shares of Common Stock represented by vested RSUs as
follows within 30 days of the 2009 Reporting 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), vesting of each RSU
shall be determined in accordance with the provisions of Schedule 1 to this
Agreement.
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 Unit award, including the
grant and vesting of the Restricted Stock Units, the receipt of cash or any
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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 Charles Schwab & 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 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.
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(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 supersede 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 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
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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 Charles Schwab &
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) OR AS SOON AS
PRACTICABLE THEREAFTER, 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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SCHEDULE 1
VESTING CRITERIA FOR RSUs
A. Overview
The RSUs shall vest only upon the Company's achievement of certain
financial metrics based on target cumulative Revenue of $[**] million and target
cumulative Normalized EPS of $[**] per share over the Company's fiscal years
2007, 2008 and 2009. The Company's performance measured against each metric
shall be equally weighted to enable comparison as a percentage of a combined
target. For purposes of this Agreement, such metrics shall have the following
meanings:
"Revenue" shall mean the Company's cumulative annual revenue for fiscal
years 2007, 2008 and 2009 calculated in accordance with generally accepted
accounting principles in the United States of America as reported in the 2009
Financial Statements.
"Normalized EPS" shall mean the Company's shall mean the Company's
cumulative annual earnings per diluted share for fiscal years 2007, 2008 and
2009 excluding cumulative amortization of intangible assets, equity-related
compensation, restructuring charges and benefits, certain gains and losses on
equity investments, non-cash income taxes and loss on early extinguishment of
debt.
"Vesting Amount" shall mean the aggregate amount, if any, issuable to the
Participant based on the Company's Revenue and Normalized EPS performance
measured against the Actual Percentage of Targets defined below.
B. Calculation of Percentages
The Company's Revenue shall be calculated as a percentage of the Company's
target cumulative revenue for fiscal years 2007, 2008 and 2009 of $[**] million
and multiplied by 0.5 (the "Revenue Percentage Component"). The Company's
Normalized EPS shall be calculated as a percentage of the Company's target
cumulative normalized earnings per share, calculated in accordance with
generally accepted accounting principles in the United States of America, as
reported in the 2009 Financial Statements for fiscal years 2007, 2008 and 2009
of $[**] and multiplied by 0.5 (the "Normalized EPS Component"). The sum of the
Revenue Percentage Component and the Normalized EPS Component shall be the
"Actual Percentage of Targets."
C. Vesting Amounts
1. If the Actual Percentage of Targets fails to exceed 100%, then none of
the RSUs shall vest and zero Shares shall be distributed in respect thereof.
2. If the Actual Percentage of Targets equals 104.57%, then the Vesting
Amount shall equal one-third of the Maximum RSU Bonus Award, as defined in
Paragraph 1 of the Agreement (the "Intermediate RSU Bonus Award"), and shall
vest.
3. If the Actual Percentage of Targets equals 109.27% or more, then the
Vesting Amount shall equal the Maximum RSU Bonus Award, as defined in Paragraph
1 of the Agreement, and shall vest.
4. If the Actual Percentage of Targets is between 100% and 104.57%, then
the Vesting Amount shall equal a number of RSUs equal to the product of the
Intermediate RSU Bonus Award
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multiplied by a fraction the numerator of which is the Actual Percentage of
Targets Revenue minus 100% and the denominator is 4.57% and shall vest.
5. If the Actual Percentage of Targets is between 104.57% and 109.27%, then
the Vesting Amount shall equal the sum of (a) the Intermediate RSU Bonus Award
plus (b) the product of (i) the difference between the Maximum RSU Bonus Award
and the Intermediate RSU Bonus Award multiplied by (ii) a fraction the numerator
of which is the Actual Percentage of Targets Revenue minus 104.57% and the
denominator is 4.70%, and shall vest.
D. Effect of an Acquisition by the Company
In the event that the Company enters into an Acquisition Transaction during
2007, then Revenue and Normalized EPS shall be adjusted to give effect to such
Acquisition Transaction. An "Acquisition Transaction" means (i) the purchase by
the Company of more than 50% of the voting power of another entity, (ii) any
merger, reorganization, consolidation, recapitalization, business combination,
liquidation, dissolution or share exchange which results in the Company
acquiring more than 50% of the voting power of another entity, or (iii) the
purchase or other acquisition (including, without limitation, via license
outside of the ordinary course of business or joint venture) of assets that
constitute more than 50% of another entity's total assets or assets that account
for more than 50% of the consolidated net revenues or net income of such entity.
As soon as practicable following the closing of an Acquisition Transaction,
the Compensation Committee of the Board of Directors of the Company shall make a
determination of the estimated impact of the Acquisition Transaction on the
Company's cumulative Revenue and Normalized EPS through 2009. If the Acquisition
Transaction is estimated to be accretive, then:
(i) in calculating Revenue for purposes of determining the Revenue
Percentage Component, reported Revenue shall be reduced by the amount of
estimated revenue contribution from the Acquisition Transaction; and
(ii) in calculating Normalized EPS for purposes of determining the
Normalized EPS Percentage Component, Normalized EPS, as calculated based on the
2009 Financial Statements, shall be reduced by the amount of the estimated
Normalized EPS contribution from the Acquisition Transaction.
If the Acquisition is estimated to be non-accretive, then:
(iii) in calculating Normalized EPS for purposes of determining the
Normalized EPS Percentage Component, Normalized EPS, as calculated based on the
2009 Financial Statements, shall be increased by the amount of the estimated
negative Normalized EPS impact from the Acquisition Transaction.
All determinations of the Compensation Committee regarding the estimated impact
of an Acquisition Transaction shall be final, binding and non-appealable. This
Agreement shall be deemed to be automatically amended, without further action by
the Company or the Participant, to give effect to any adjustments required by
this Section D.
E. Effect of a Change in Control Event
(1) If there is a Change of Control Event prior to December 31, 2009, the
RSUs shall vest as of the closing date of the Change of Control Event and
Participant shall be entitled to receive a pro rated number of Shares based on
the amount of time elapsed between the Grant Date and December 31, 2009.
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The number of Shares issuable in respect of vested RSUs, if any, shall be
calculated based on a pro forma Actual Percentage of Targets calculated as
follows:
(i) If the Change of Control Event occurs in 2007, Revenue and Normalized
EPS shall be calculated based on the Company's Revenue and Normalized EPS
results during the twelve-month period ending on the last day of the most
recently reported fiscal quarter prior to the closing date of the Change of
Control Event. Such numbers shall then be multiplied by three for purposes of
calculating the Actual Percentage of Targets.
(ii) If the Change of Control Event occurs in 2008, Revenue and Normalized
EPS shall be calculated based on the Company's Revenue and Normalized EPS
results for fiscal year 2007. Such numbers shall then be multiplied by three for
purposes of calculating the Actual Percentage of Targets.
(iii) If the Change of Control Event occurs in 2009, Revenue and Normalized
EPS shall be calculated based on the cumulative Revenue and Normalized EPS
results for fiscal years 2007 and 2008 plus an amount equal to the Revenue and
Normalized EPS for 2009 that would result if the rate of growth (loss) for
Revenue and Normalized EPS, respectively, between 2007 and 2008 were to continue
for 2009. Such sums shall be used for calculating the Actual Percentage of
Targets.
Once the pro forma Actual Percentage of Targets has been determined and the
number of Shares, if any, that would have been issuable in respect of the RSUs
on the 2009 Reporting Date (the "Pro Forma Distribution Amount") calculated, the
actual number of Shares issuable shall be adjusted proportionally based on the
percentage of the three-year calculation period that has elapsed as of the
closing date of the Change of Control Event (e.g., if the closing date of the
Change in Control Event were April 1, 2008, the number of Shares issuable would
be 41.7% (15 months/36 months) of the total Pro Forma Distribution Amount).
(2) If (i) there is a Change of Control Event between January 1, 2010 and
September 30, 2010; (ii) Participant meets the requirements of Paragraph 2(c) of
this Agreement as of immediately prior to the Change of Control Event and (iii)
Participant's employment is terminated by the surviving entity in the Change of
Control transaction at any time during the period between the Change of Control
Event and October 1, 2010 for any reason other than for Cause (as defined
below), then the entire portion of the Vesting Amount that had not vested prior
to Participation's termination shall vest in full as of the effective date of
Participant's termination. For purposes of this Agreement, "Cause" shall mean
(a) any act or omission by Participant that has an adverse effect on Akamai's
business or on the employee's ability to perform services for Akamai, including,
without limitation, the commission of any crime (other than ordinary traffic
violations), or (b) refusal or failure to perform assigned duties, serious
misconduct, or excessive absenteeism. Whether a Participant has been terminated
for "Cause" shall be determined in the sole discretion of the Company's
management or, in the case of an executive officer, the Board of Directors or a
committee thereof.
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