Exhibit
10.5
AKAMAI TECHNOLOGIES,
INC.
Performance-Based Restricted Stock
Unit Agreement
Granted Under the 2009 Stock
Incentive Plan
This Agreement evidences the grant
by Akamai Technologies, Inc., a Delaware corporation (the
“Company”) on
,
2009 (the “Grant Date”) to you (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 Restricted Stock Unit Agreement (the
“Agreement”) and the Company’s 2009 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 minimum number of shares issuable is zero; the
maximum number of shares issuable is equal to 50% of the number of
shares issued on the Grant Date under the terms of the other
Restricted Stock Unit Agreement that subsequently vest (the maximum
number of RSUs issuable hereunder, the “Maximum RSU Bonus
Award”). 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.
(a) Subject to the terms and
conditions of this Agreement including, without limitation,
Paragraph 2(c) below, this award shall vest on the 2011 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 or any other date on which shares vest under
this Agreement may be referred to herein as a “Vesting
Date.”
(b) The “2011 Reporting
Date” shall mean the date on which the Company files its
annual Public Company Financial Statements for fiscal year 2011 or
completes its annual Private Company Financial Statements for
fiscal year 2011, as applicable. If, on December 31, 2011, 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, 2011, 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 “2011
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. For purposes of this Agreement, employment with the
Company shall include employment with a parent, subsidiary,
affiliate or division of the Company.
(d) If the Participant dies or
becomes disabled on or after January 1, 2012 but before the
2011 Reporting Date, he or she shall be deemed to have been
employed as of the 2011 Reporting Date.
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3.
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Distribution
of Shares .
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(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 January 1, 2012) the
Shares of Common Stock represented by vested RSUs as follows:
within 30 days of the Vesting Date; provided that if the
Participant vests as the result of the application of
Section 2(d), the earlier of 30 days after the 2011 Reporting
Date or March 15, 2012.
(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.
(c) Neither the Company nor the
Participant shall have the right to accelerate or defer the deliver
of any shares under this Agreement except to the extent
specifically permitted under Section 409A of the Internal
Revenue Code of 1986, as amended.
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4.
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Restrictions
on Transfer .
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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.
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5.
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Dividend and
Other Shareholder Rights .
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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.
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6.
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Provisions
of the Plan; Acquisition Event or Change in Control
Event .
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(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), 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.
(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
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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 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.
(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 benef