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EXHIBIT 10.5
AKAMAI TECHNOLOGIES, INC.
AMENDED AND RESTATED 1999 EMPLOYEE STOCK PURCHASE PLAN
This
Amended and Restated 1999 Employee Stock Purchase Plan shall be
effective from and after June 1, 2005. The following constitute the
provisions
of the Amended and Restated 1999 Employee Stock Purchase Plan of
Akamai
Technologies, Inc.
1.
PURPOSE. The purpose of the Plan is to provide employees of the
Company
and its Designated Subsidiaries with an opportunity to purchase
Common Stock of
the Company through accumulated payroll deductions. It is the
intention of the
Company to have the Plan qualify as an "Employee Stock Purchase
Plan" under
Section 423 of the Internal Revenue Code of 1986, as amended. The
provisions of
the Plan, accordingly, shall be construed so as to extend and
limit
participation in a manner consistent with the requirements of that
section of
the Code.
2.
DEFINITIONS.
a. "Board" shall mean the Board of Directors of the Company.
b. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
c. "Common Stock" shall mean the Common Stock of the Company.
d. "Company" shall mean Akamai Technologies, Inc. and any
Designated
Subsidiary of the Company.
e. "Compensation" means the amount of money reportable on your
Federal Income Tax Withholding Statement (Form W-2) before any
withholdings for
health insurance or under a Section 401(k), 125, 129 or similar
plan, excluding
third party sick or disability pay, allowances and reimbursements
for expenses
such as relocation allowances or travel expenses, whether
specifically
designated as such or designated as signing bonuses, income or
gains
attributable to restricted stock, stock options, stock appreciation
rights or
other similar equity based compensation, imputed income for non
cash items, such
as life insurance premiums, and similar items, whether or not
specifically
itemized on the Form W-2. For avoidance of doubt, "Compensation"
shall include
cash payments in respect of bonuses, commissions and other
cash-based incentive
plans.
f. "Designated Subsidiary" shall mean any Subsidiary which has
been
designated by the Board from time to time in its sole discretion as
eligible to
participate in the Plan.
g. "Employee" shall mean any individual who is an Employee of
the
Company for tax purposes whose customary employment with the
Company is more
than five (5) months in any calendar year. For purposes of the
Plan, the
employment relationship shall be
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treated as continuing intact while the individual is on sick leave
or other
leave of absence approved by the Company. Where the period of leave
exceeds 90
days and the individual's right to reemployment is not guaranteed
either by
statute or by contract, the employment relationship shall be deemed
to have
terminated on the 91st day of such leave.
h. "Enrollment Date" shall mean the first day of each Offering
Period.
i. "Exercise Date" shall mean the last Trading Day of each
Offering
Period.
j. "Fair Market Value" shall mean, as of any date, the value of
Common Stock determined as follows:
(i) If the
Common Stock is listed on any established stock exchange
or a national market system, including without limitation The
Nasdaq
National Market or The Nasdaq Small Cap Market of The Nasdaq
Stock
Market, its Fair Market Value shall be the closing sales price
for
such stock (or the closing bid, if no sales were reported) as
quoted
on such exchange or system for the last market trading day prior
to
the date of such determination, as reported in The Wall Street
Journal or such other source as the Board deems reliable; or
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean of the closing bid and asked
prices
for the Common Stock prior to the date of such determination,
as
reported in The Wall Street Journal or such other source as the
Board deems reliable; or
(iii) In the absence of an established market for the Common
Stock,
the Fair Market Value thereof shall be determined in good faith
by
the Board.
k. "Offering Periods" shall mean the periods of approximately
six
(6) months during which an option granted pursuant to the Plan may
be exercised,
commencing on the first Trading Day on or after June 1 and December
1 of each
year and terminating on the last Trading Day in the period ending
six (6) months
later. The duration and timing of Offering Periods may be changed
pursuant to
Section 4 of this Plan.
l. "Plan" shall mean this Amended and Restated 1999 Employee
Stock
Purchase Plan.
m. "Purchase Price" shall mean 85% of the Fair Market Value of
a
share of Common Stock on the Enrollment Date or on the Exercise
Date, whichever
is lower; provided however, that, in the event (i) the Company's
stockholders
approve an increase in the number of shares available for issuance
under the
Plan, (ii) all or a portion of such additional shares are to be
issued with
respect to one or more Offering Periods that are underway at the
time of such
stockholder approval ("New Shares"), and (iii) the Fair Market
Value of a share
of Common Stock on the date of such approval (the "Authorization
Date FMV") is
higher than the Fair Market Value on the Enrollment Date for any
such Offering
Period, the Purchase Price with
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respect to New Shares shall be 85% of the Authorization Date FMV or
the Fair
Market Value of a share of Common Stock on the Exercise Date,
whichever is
lower.
n. "Reserves" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been
exercised and the
number of shares of Common Stock which have been authorized for
issuance under
the Plan but not yet placed under option.
o. "Subsidiary" shall mean a corporation, domestic or foreign,
of
which not less than 50% of the voting shares are held by the
Company or a
Subsidiary, whether or not such corporation now exists or is
hereafter organized
or acquired by the Company or a Subsidiary.
p. "Trading Day" shall mean a day on which national stock
exchanges
and the Nasdaq System are open for trading.
3.
ELIGIBILITY.
a. Any Employee who shall be employed by the Company at least
seven
(7) calendar days prior to a given Enrollment Date shall be
eligible to
participate in the Plan.
b. Any provisions of the Plan to the contrary notwithstanding,
no
Employee shall be granted an option under the Plan:
(i) to the extent that, immediately after the grant, such
Employee
(or any other person whose stock would be attributed to such
Employee pursuant to Section 424(d) of the Code) would own
capital
stock of the Company and/or hold outstanding options to
purchase
such stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of the capital
stock
of the Company or of any Subsidiary, or
(ii) to the extent that his or her rights to purchase stock
under
all employee stock purchase plans of the Company and its
Subsidiaries accrues at a rate which exceeds Twenty-Five
Thousand
Dollars ($25,000) worth of stock (determined at the fair market
value of the shares at the time such option is granted) for
each
calendar year in which such option is outstanding at any time.
4.
OFFERING PERIODS. A new Offering Period shall commence on the
first
Trading Day on or after June 1 and December 1 of each year, or on
such other
date as the Board shall determine, and continuing thereafter until
the Plan is
terminated in accordance with Section 20 hereof. The Board shall
have the power
to change the duration of Offering Periods (including the
commencement dates
thereof) with respect to future offerings without stockholder
approval if such
change is announced at least five (5) days prior to the scheduled
beginning of
the first Offering Period to be affected thereafter.
5.
PARTICIPATION.
a. An eligible Employee may become a participant in the Plan by
completing a subscription agreement in the form of Exhibit A
authorizing payroll
deductions in a form
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provided by the Company's payroll office and filing it with the
Company's
payroll office prior to the applicable Enrollment Date.
b. Payroll deductions for a participant shall commence on the
first
payroll following the Enrollment Date and shall end on the last
payroll in the
Offering Period to which such authorization is applicable, unless
sooner
termination by the participant as provided in Section 10
hereof.
6. PAYROLL
DEDUCTIONS.
a. At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on
each pay day
during the Offering Period in an amount not exceeding fifteen
percent (15%) of
the Compensation which he or she receives on each pay day during
the Offering
Period.
b. All payroll deductions made for a participant shall be
credited
to his or her account under the Plan and shall be withheld in whole
percentages
only. A participant may not make any additional payments into such
account.
c. A participant may discontinue his or her participation in
the
Plan as provided in Section 10 hereof, or may increase or decrease
the rate of
his or her payroll deductions to not more than fifteen percent
(15%) or less
than zero percent (0%) not more than two (2) times during each
Offering Period
by completing or filing with the Company a new subscription
agreement
authorizing such change in payroll deduction rate. The Board may,
in its
discretion, increase or decrease the number of participation rate
changes during
any Offering Period. The change in rate shall be effective with the
first full
payroll period following the fifth (5th) business day after the
Company's
receipt of the new subscription agreement unless the Company elects
to process a
given change in participation more quickly. A participant's
subscription
agreement shall remain in effect for successive Offering Periods
unless
terminated as provided in Section 10 hereof (i.e., unless a
participant notifies
the Company that he or she wishes to discontinue participation in
the Plan as of
the end of an Offering Period, the participant will automatically
be re-enrolled
in the next Offering Period).
d. At the time the option is exercised, in whole or in part, or
at
the time some or all of the Company's Common Stock issued under the
Plan is
disposed of, the participant must make adequate provision for the
Company's
federal, state, or other tax withholding obligations, if any, which
arise upon
the exercise of the option or the disposition of the Common Stock.
At any time,
the Company may, but shall not be obligated to, withhold from the
participant's
compensation the amount necessary for the
