2001 Stock Incentive Plan - Akamai Technologies Inc.
AKAMAI TECHNOLOGIES, INC.
2001 STOCK INCENTIVE PLAN
1. Purpose
The purpose of this 2001 Stock Incentive Plan (the "Plan") of Akamai
Technologies, Inc., a Delaware corporation (the "Company"), is to advance the
interests of the Company's stockholders by enhancing the Company's ability to
attract, retain and motivate persons who make (or are expected to make)
important contributions to the Company by providing such persons with equity
ownership opportunities and performance-based incentives, thereby better
aligning the interests of such persons with those of the Company's stockholders.
Except where the context otherwise requires, the term "Company" shall include
any of the Company's present or future parent or subsidiary corporations as
defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder (the "Code") and any other
business venture (including, without limitation, a joint venture or limited
liability company) in which the Company has a controlling interest, as
determined by the Board of Directors of the Company (the "Board").
2. Eligibility
All of the Company's employees (and any individuals who have accepted an
offer for employment), consultants and advisors, other than those who are also
officers (within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder), or directors of the Company, are eligible to be granted options,
restricted stock awards, or other stock-based awards (each, an "Award") under
the Plan. Each person who has been granted an Award under the Plan shall be
deemed a "Participant".
3. Administration and Delegation
(a) Administration by Board of Directors. The Plan will be administered
by the Board. The Board shall have authority to grant Awards and to adopt, amend
and repeal such administrative rules, guidelines and practices relating to the
Plan as it shall deem advisable. The Board may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem expedient to carry the Plan into effect and it
shall be the sole and final judge of such expediency. All decisions by the Board
shall be made in the Board's sole discretion and shall be final and binding on
all persons having or claiming any interest in the Plan or in any Award. No
director or person acting pursuant to the authority delegated by the Board shall
be liable for any action or determination relating to or under the Plan made in
good faith.
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(b) Appointment of Committees. To the extent permitted by applicable
law, the Board may delegate any or all of its powers under the Plan to one or
more committees or subcommittees of the Board (a "Committee"). All references in
the Plan to the "Board" shall mean the Board or a Committee of the Board or the
executive officers referred to in Section 3(c) to the extent that the Board's
powers or authority under the Plan have been delegated to such Committee or
executive officers.
(c) Delegation to Executive Officers. To the extent permitted by
applicable law, the Board may delegate to one or more executive officers of the
Company the power to grant Awards to employees or officers of the Company or any
of its present or future subsidiary corporations and to exercise such other
powers under the Plan as the Board may determine, provided that the Board shall
fix the terms of the Awards to be granted by such executive officers (including
the exercise price of such Awards, which may include a formula by which the
exercise price will be determined) and the maximum number of shares subject to
Awards that the executive officers may grant; provided further, however, that no
executive officer shall be authorized to grant Awards to any "executive officer"
of the Company (as defined by Rule 3b-7 under the Exchange Act) or to any
"officer" of the Company (as defined by Rule 16a-1 under the Exchange Act).
4. Stock Available for Awards. Subject to adjustment under Section 8,
Awards may be made under the Plan for up to 5,000,000 shares of common stock,
$0.01 par value per share, of the Company (the "Common Stock"). If any Award
expires or is terminated, surrendered or canceled without having been fully
exercised or is forfeited in whole or in part (including as the result of shares
of Common Stock subject to such Award being repurchased by the Company at the
original issuance price pursuant to a contractual repurchase right) or results
in any Common Stock not being issued, the unused Common Stock covered by such
Award shall again be available for the grant of Awards under the Plan. Shares
issued under the Plan may consist in whole or in part of authorized but unissued
shares or treasury shares.
5. Stock Options
(a) General. The Board may grant options to purchase Common Stock (each,
an "Option") and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. Each Option granted under the Plan shall be a
"nonstatutory stock option," not intended to qualify as an "incentive stock
option" as defined in Section 422 of the Code (an "Incentive Stock Option"). No
Incentive Stock Options shall be granted under the Plan.
(b) Exercise Price. The Board shall establish the exercise price at the
time each Option is granted and specify it in the applicable option agreement.
(c) Duration of Options. Each Option shall be exercisable at such times
and subject to such terms and conditions as the Board may specify in the
applicable option agreement.
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(d) Exercise of Option. Options may be exercised by delivery to the
Company of a written notice of exercise signed by the proper person or by any
other form of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(e) for the number of
shares for which the Option is exercised.
(e) Payment Upon Exercise. Common Stock purchased upon the exercise of
an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may, in its sole discretion, otherwise
provide in an option agreement, by (i) delivery of an irrevocable and
unconditional undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price and any required tax
withholding or (ii) delivery by the Participant to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the exercise price and
any required tax withholding;
(3) when the Common Stock is registered under the Exchange Act, by
delivery of shares of Common Stock owned by the Participant valued at their fair
market value as determined by (or in a manner approved by) the Board in good
faith ("Fair Market Value"), provided (i) such method of payment is then
permitted under applicable law and (ii) such Common Stock, if acquired directly
from the Company was owned by the Participant at least six months prior to such
delivery;
(4) to the extent permitted by the Board, in its sole discretion
by (i) delivery of a promissory note of the Participant to the Company on terms
determined by the Board, or (ii) payment of such other lawful consideration as
the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(f) Substitute Options. In connection with a merger or consolidation of
an entity with the Company or the acquisition by the Company of property or
stock of an entity, the Board may grant Options in substitution for any options
or other stock or stock-based awards granted by such entity or an affiliate
thereof. Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on Options
contained in the other sections of this Section 5 or in Section 2.
6. Restricted Stock.
(a) Grants. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a "Restricted Stock Award").
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(b) Terms and Conditions. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any.
(c) Stock Certificates. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and,
unless otherwise determined by the Board, deposited by the Participant, together
with a stock power endorsed in blank, with the Company (or its designee). At the
expiration of the applicable restriction periods, the Company (or such designee)
shall deliver the certificates no longer subject to such restrictions to the
Participant or if the Participant has died, to the beneficiary designated, in a
manner determined by the Board, by a Participant to receive amounts due or
exercise rights of the Participant in the event of the Participant's death (the
"Designated Beneficiary"). In the absence of an effective designation by a
Participant, Designated Beneficiary shall mean the Participant's estate.
7. Other Stock-Based Awards
The Board shall have the right to grant other Awards based upon the Common
Stock having such terms and conditions as the Board may determine, including the
grant of shares based upon certain conditions, the grant of securities
convertible into Common Stock and the grant of stock appreciation rights.
8. Adjustments for Changes in Common Stock and Certain Other Events
(a) Changes in Capitalization. In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than a normal
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the number and class of securities and exercise price per share subject to
each outstanding Option, and (iii) the repurchase price per share subject to
each outstanding Restricted Stock Award shall be appropriately adjusted by the
Company (or substituted Awards may be made, if applicable) to the extent the
Board shall determine, in good faith, that such an adjustment (or substitution)
is necessary and appropriate. If this Section 8(a) applies and Section 8(c) also
applies to any event, Section 8(c) shall be applicable to such event, and this
Section 8(a) shall not be applicable.
(b) Liquidation or Dissolution. In the event of a proposed liquidation
or dissolution of the Company, the Board shall upon written notice to the
Participants provide that all then unexercised Options will (i) become
exercisable in full as of a specified time at least 10 business days prior to
the effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent exercised
before such effective date. The Board may specify the effect of a liquidation or
dissolution on any Restricted Stock Award or other Award granted under the Plan
at the time of the grant.
(c) Acquisition and Change in Control Events
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(1) Definitions
(a) An "Acquisition Event" shall mean:
(i) any merger or consolidation of the Company with or
into another entity as a result of which the
Common Stock is converted into or exchanged for
the right to receive cash, securities of the other
entity or other property; or
(ii) any exchange of shares of the Company for cash,
securities of another entity or other property
pursuant to a statutory share exchange
transaction.
(b) A "Change in Control Event" shall mean:
(i) any merger or consolidation which results in the
voting securities of the Company outstanding
immediately prior thereto representing immediately
thereafter (either by remaining outstanding or by
being converted into voting securities of the
surviving or acquiring entity) less than 50% of
the combined voting power of the voting securities
of the Company or such surviving or acquiring
entity outstanding immediately after such merger
or consolidation;
(ii) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership of any capital stock of the
Company if, after such acquisition, such Person
beneficially owns (within the meaning of Rule
13d-3 promulgated under the Exchange Act) 50% or
more of either (A) the then-outstanding shares of
Common Stock of the Company (the "Outstanding
Company Common Stock") or (B) the combined voting
power of the then-outstanding voting securities of
the Company entitled to vote generally in the
election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for
purposes of this subsection (ii), the following
acquisitions shall not constitute a Sale: (A) any
acquisition directly from the Company, (B) any
acquisition by the Company, (C) any acquisition by
any employee benefit plan (or related trust)
sponsored or maintained by the Company or any
corporation controlled by the Company, or (D) any
acquisition by any corporation pursuant to a
transaction which results in all or substantially
all of the individuals and entities who were the
beneficial owners of the
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Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to
such transaction beneficially own, directly or
indirectly, more than 50% of the then-outstanding
shares of common stock and the combined voting
power of the then-outstanding voting securities
entitled to vote generally in the election of
directors, respectively, of the resulting or
acquiring corporation in such transaction (which
shall include, without limitation, a corporation
which as a result of such transaction owns the
Company or substantially all of the Company's
assets either directly or through one or more
subsidiaries) in substantially the same
proportions as their ownership, immediately prior
to such transaction, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, respectively;
(iii) any sale of all or substantially all of the assets
of the Company; or
(iv) the complete liquidation of the Company.
(2) Effect on Options
(a) Acquisition Event. Upon the occurrence of an Acquisition
Event (regardless of whether such event also constitutes
a Change in Control Event), or the execution by the
Company of any agreement with respect to an Acquisition
Event (regardless of whether such event will result in a
Change in Control Event), the Board shall provide that
all outstanding Options shall be assumed, or equivalent
options shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof);
provided that if such Acquisition Event also constitutes
a Change in Control Event, except to the extent
specifically provided to the contrary in the instrument
evidencing any Option or any other agreement between a
Participant and the Company, such assumed or substituted
options shall be immediately exercisable in full upon
the occurrence of such Acquisition Event. For purposes
hereof, an Option shall be considered to be assumed if,
following consummation of the Acquisition Event, the
Option confers the right to purchase, for each share of
Common Stock subject to the Option immediately prior to
the consummation of the Acquisition Event, the
consideration (whether cash, securities or other
property) received as a result of the Acquisition Event
by holders of Common Stock for each share of Common
Stock held immediately prior to the consummation of the
Acquisition Event
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(and if holders were offered a choice of consideration,
the type of consideration chosen by the holders of a
majority of the outstanding shares of Common Stock);
provided, however, that if the consideration received as
a result of the Acquisition Event is not solely common
stock of the acquiring or succeeding corporation (or an
affiliate thereof), the Company may, with the consent of
the acquiring or succeeding corporation, provide for the
consideration to be received upon the exercise of
Options to consist solely of common stock of the
acquiring or succeeding corporation (or an affiliate
thereof) equivalent in fair market value to the per
share consideration received by holders of outstanding
shares of Common Stock as a result of the Acquisition
Event.
Notwithstanding the foregoing, if the acquiring or
succeeding corporation (or an affiliate thereof) does
not agree to assume, or substitute for, such Options,
then the Board shall, upon written notice to the
Participants, provide that all then unexercised Options
will become exercisable in full as of a specified time
prior to the Acquisition Event and will terminate
immediately prior to the consummation of such
Acquisition Event, except to the extent exercised by the
Participants before the consummation of such Acquisition
Event; provided, however, in the event of an Acquisition
Event under the terms of which holders of Common Stock
will receive upon consummation thereof a cash payment
for each share of Common Stock surrendered pursuant to
such Acquisition Event (the "Acquisition Price"), then
the Board may instead provide that all outstanding
Options shall terminate upon consummation of such
Acquisition Event and that each Participant shall
receive, in exchange therefor, a cash payment equal to
the amount (if any) by which (A) the Acquisition Price
multiplied by the number of shares of Common Stock
subject to such outstanding Options (whether or not then
exercisable), exceeds (B) the aggregate exercise price
of such Options.
(b) Change in Control Event that is not an Acquisition
Event. Upon the occurrence of a Change in Control Event
that does not also constitute an Acquisition Event,
except to the extent specifically provided to the
contrary in the instrument evidencing any Option or any
other agreement between a Participant and the Company,
all Options then-outstanding shall automatically become
immediately exercisable in full.
(3) Effect on Restricted Stock Awards
(a) Acquisition Event that is not a Change in Control Event.
Upon the occurrence of an Acquisition Event that is not
a Change in Control
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Event, the repurchase and other rights of the Company
under each outstanding Restricted Stock Award 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 Restricted Stock Award.
(b) Change in Control Event. Upon the occurrence of a Change
in Control Event (regardless of whether such event also
constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument
evidencing any Restricted Stock Award or any other
agreement between a Participant and the Company, all
restrictions and conditions on all Restricted Stock
Awards then-outstanding shall automatically be deemed
terminated or satisfied.
(4) Effect on Other Awards
(a) Acquisition Event that is not a Change in Control Event.
The Board shall specify the effect of an Acquisition
Event that is not a Change in Control Event on any other
Award granted under the Plan at the time of the grant of
such Award.
(b) Change in Control Event. Upon the occurrence of a Change
in Control Event (regardless of whether such event also
constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument
evidencing any other Award or any other agreement
between a Participant and the Company, all other Awards
shall become exercisable, realizable or vested in full,
or shall be free of all conditions or restrictions, as
applicable to each such Award.
9. General Provisions Applicable to Awards
(a) Transferability of Awards. Except as the Board may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, shall be
exercisable only by the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized transferees.
(b) Documentation. Each Award shall be evidenced in such form (written,
electronic or otherwise) as the Board shall determine. Each Award may contain
terms and conditions in addition to those set forth in the Plan.
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(c) Board Discretion. Except as otherwise provided by the Plan, each
Award may be made alone or in addition or in relation to any other Award. The
terms of each Award need not be identical, and the Board need not treat
Participants uniformly.
(d) Termination of Status. The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(e) Withholding. Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in connection with Awards to such Participant no later than the date
of the event creating the tax liability. Except as the Board may otherwise
provide in an Award, when the Common Stock is registered under the Exchange Act,
Participants may satisfy such tax obligations in whole or in part by delivery of
shares of Common Stock, including shares retained from the Award creating the
tax obligation, valued at their Fair Market Value; provided, however, that the
total tax withholding where stock is being used to satisfy such tax obligations
cannot exceed the Company's minimum statutory withholding obligations (based on
minimum statutory withholding rates for federal and state tax purposes,
including payroll taxes, that are applicable to such supplemental taxable
income). The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to a Participant.
(f) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another
Award of the same or a different type and changing the date of exercise or
realization, provided that the Participant's consent to such action shall be
required unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
Without intending to limit the generality of the preceding sentence, the Board
may, without amending the Plan, modify Awards granted to Participants who are
foreign nationals or employed outside the United States to recognize differences
in laws, rules, regulations or customers of such foreign jurisdiction with
respect to tax, securities, currency, employee benefits or other matters.
(g) Conditions on Delivery of Stock. The Company will not be obligated
to deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(h) Acceleration. The Board may at any time provide that any Award shall
become immediately exercisable in full or in part, free of some or all
restrictions or conditions, or otherwise realizable in full or in part, as the
case may be.
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10. Miscellaneous
(a) No Right To Employment or Other Status. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant 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 a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an Option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
(c) Effective Date and Term of Plan. The Plan shall become effective on
December 11, 2001, the date on which it was adopted by the Board (the "Effective
Date"). No Awards shall be granted under the Plan after the completion of ten
years from the Effective Date, but Awards previously granted may extend beyond
that date.
(d) Amendment of Plan. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time.
(e) Governing Law. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
Adopted by the Board of Directors on December 11, 2001.
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