Registration Rights Agreement - Akamai Technologies Inc. and Cisco Systems Inc.
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
August 6, 1999
To each of the Purchasers (as defined herein)
and the Founders (as defined herein)
Dear Sirs:
This will confirm that in consideration of the agreement by the Series
E Purchaser (as defined herein) on the date hereof to purchase shares (the
"Series E Preferred Shares") of Series E Convertible Preferred Stock, par value
$.01 per share, of Akamai Technologies, Inc., a Delaware corporation (the
"Company"), pursuant to the Series E Convertible Preferred Stock Purchase
Agreement of even date herewith (the "Series E Purchase Agreement") between the
Company and the Series E Purchaser, and as an inducement to the Series E
Purchaser to consummate the transactions contemplated by the Series E Purchase
Agreement, the Company covenants and agrees with each of you as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean the Common Stock, par value $.01 per
share, of the Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean the Series A Conversion Shares,
the Series B Conversion Shares, the Series C Conversion Shares, the Series D
Conversion Shares and the Series E Conversion Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Founders" shall mean F. Thomson Leighton, Daniel Lewin,
Jonathan Seelig, Randall Kaplan, David Karger, Gilbert Friesen, Preetish
Nijahwan, Marco Greenberg, Paul Sagan, the F. Thomson Leighton 1998 Irrevocable
Trust, the Daniel Lewin 1998 Irrevocable Trust, and the Arthur H. Bilger 1996
Family Trust.
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"Founders' Registrable Shares" shall mean up to 16,140,600
shares of Common Stock held by the Founders.
"Original Restricted Stock" shall mean (1) the Series A
Conversion Shares, excluding Series A Conversion Shares which have been (a)
registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering them or (b) publicly sold pursuant to Rule 144 under the
Securities Act, and (2) for purposes of Sections 2, 6 and 11(d) hereof, the
Founders' Registrable Shares, but excluding shares of Common Stock which have
been (a) registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with the
registration statement covering them or (b) publicly sold pursuant to Rule 144
under the Securities Act.
"Preferred Shares" shall mean the Series A Preferred Shares,
the Series B Preferred Shares, the Series C Preferred Shares, the Series D
Preferred Shares and the Series E Preferred Shares.
"Prior Agreement" shall mean the Second Amended and Restated
Registration Rights Agreement dated June 21, 1999 among the Company, the
Founders, the Series A Purchasers, the Series B Purchasers and the Series D
Purchaser.
"Purchasers" shall mean the Series A Purchasers, the Series B
Purchasers, the Series D Purchaser and the Series E Purchaser.
"Restricted Stock" shall mean Original Restricted Stock and/or
Series B/C/D/E Restricted Stock.
"Registration Expenses" shall mean the expenses so described
in Section 6.
"Securities Act" shall mean the Securities Act of 1933 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Securities Laws" shall mean the Securities Act and all
applicable state securities laws, rules and regulations in effect at the time.
"Selling Expenses" shall mean the expenses so described in
Section 6.
"Series A Conversion Shares" shall mean shares of Common Stock
issued or issuable upon conversion of the Series A Preferred Shares, and any
shares of capital stock received in respect thereof.
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"Series A Preferred Shares" shall mean the shares of Series A
Convertible Preferred Stock, $0.01 par value per share, of the Company purchased
by the Series A Purchasers pursuant to the Series A Purchase Agreement.
"Series A Purchase Agreement" shall mean the Series A
Convertible Preferred Stock Purchase Agreement dated November 23, 1998, as
amended December 8, 1998, among the Company and the Series A Purchasers.
"Series A Purchasers" shall mean those persons listed on
Exhibit 1.01 to the Series A Purchase Agreement.
"Series B Conversion Shares" shall mean shares of Common Stock
issued or issuable upon conversion of the Series B Preferred Shares, and any
shares of capital stock received in respect thereof.
"Series B Preferred Shares" shall mean any shares of Series B
Convertible Preferred Stock, $0.01 par value per share of the Company purchased
by the Series B Purchasers pursuant to the Series B Purchase Agreement.
"Series B Purchase Agreement" shall mean the Series B
Convertible Preferred Stock and Series C Convertible Preferred Stock Purchase
Agreement dated as of April 16, 1999 among the Company and the Series B
Purchasers.
"Series B Purchasers" shall mean those persons listed on
Exhibit 1.01 to the Series B Purchase Agreement.
"Series B/C/D/E Restricted Stock" shall mean (i) the Series B
Conversion Shares, excluding Series B Conversion Shares which have been (a)
registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering them or (b) publicly sold pursuant to Rule 144 under the
Securities Act, (ii) the Series C Conversion Shares, excluding Series C
Conversion Shares which have been (a) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and disposed of
in accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act, (iii) the Series D Conversion
Shares, excluding Series D Conversion Shares which have been (a) registered
under the Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the registration statement
covering them or (b) publicly sold pursuant to Rule 144 under the Securities
Act, and (iv) the Series E Conversion Shares, excluding Series E Conversion
Shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
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"Series C Conversion Shares" shall mean shares of Common Stock
issued or issuable upon conversion of the Series C Preferred Shares, and any
shares of capital stock received in respect thereof.
"Series C Preferred Shares" shall mean any shares of Series C
Convertible Preferred Stock, $0.01 par value per share, of the Company that are
purchased by the Series B Purchasers pursuant to the Series B Purchase
Agreement.
"Series D Conversion Shares" shall mean any shares of Common
Stock issued or issuable upon conversion of the Series D Preferred Shares, and
any shares of capital stock received in respect thereof.
"Series D Preferred Shares" shall mean any shares of Series D
Convertible Preferred Stock, $0.01 par value per share, of the Company that are
purchased by the Series D Purchaser pursuant to the Series D Purchase Agreement.
"Series D Purchase Agreement" shall mean the Series D
Convertible Preferred Stock Purchase Agreement dated as of June 21, 1999 among
the Company and the Series D Purchaser.
"Series D Purchaser" shall mean Apple Computer Inc. Ltd.
"Series E Conversion Shares" shall mean any shares of Common
Stock issued or issuable upon conversion of the Series E Preferred Shares, and
any shares of capital stock received in respect thereof.
"Series E Purchaser" shall mean Cisco Systems, Inc.
For all purposes of this Agreement, each holder of Restricted Stock
shall be treated (i) as a "Purchaser" solely with respect to shares of
Conversion Shares he or it holds as such, and/or (ii) as a "Founder" solely with
respect to shares of Common Stock he holds as such; and this Agreement shall be
interpreted accordingly.
2. Required Registration.
(a) On or after October 30, 2003, (i) the holders of Original
Restricted Stock (excluding the Founders) constituting at least a majority in
interest of the total shares of Series A Preferred Stock then outstanding and/or
(ii) the holders of Original Restricted Stock (excluding the Series A
Purchasers) constituting at least seventy-five percent (75%) of the Common Stock
then outstanding may request the Company to register under the Securities Act
all or any portion of the shares of Original Restricted Stock held by such
requesting holder or holders for sale in the manner specified in such notice
(subject to the limitations set
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forth in subsection 2(g) hereof), provided that the aggregate price to the
public of such offering would exceed $5,000,000.
(b) On or after April 16, 2002, the holders of Series B/C/D/E
Restricted Stock constituting at least 30% in interest of the total shares of
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock then outstanding may request the Company to register
under the Securities Act all or any portion of the shares of Series B/C/D/E
Restricted Stock held by such requesting holder or holders for sale in the
manner specified in such notice (subject to the limitations set forth in
subsection 2(g) hereof), provided that the aggregate price to the public of such
offering would exceed $5,000,000.
(c) The only securities which the Company shall be required to
register pursuant to this Section 2 shall be shares of Common Stock; provided,
however, that, in any underwritten public offering contemplated by this Section
2 or Sections 3 and 4, the holders of Preferred Shares shall be entitled to sell
such Preferred Shares to the underwriters for conversion and sale of the shares
of Common Stock issued upon conversion thereof. Notwithstanding anything to the
contrary contained herein, the Company shall not be required to effect a
registration of shares of its Common Stock pursuant to this Section 2 within 180
days after the effective date of a registration statement filed by the Company
covering a firm commitment underwritten public offering in which the holders of
Restricted Stock shall have been entitled to join pursuant to Sections 3 or 4.
(d) Following receipt of any notice under subsection 2(a), the
Company shall immediately notify all holders of Original Restricted Stock
(including the Founders) from whom notice has not been received and such holders
shall then be entitled within 30 days thereafter to request the Company to
include in the requested registration all or any portion of their shares of
Original Restricted Stock. The Company shall use its best efforts to register
under the Securities Act, for public sale in accordance with the method of
disposition described in subsection 2(a), the number of shares of Original
Restricted Stock specified in such notice (and in all notices received by the
Company from other holders within 30 days after the giving of such notice by the
Company). The Company shall be obligated to register Original Restricted Stock
pursuant to subsection 2(a) on two occasions only as follows: (i) one at the
request of Series A Purchasers holding Original Restricted Stock who have so
requested pursuant to clause (i) of subsection 2(a) and (ii) one at the request
of holders of Common Stock who have so requested pursuant to clause (ii) of
subsection 2(a); provided, however, that such obligation shall be deemed
satisfied only when a registration statement, covering all of the offered shares
of Original Restricted Stock specified in notices received as aforesaid for sale
in accordance with the method of disposition specified by the requesting
holders, shall have become effective or if such registration statement has been
withdrawn prior to the consummation of the offering at the request of the Series
A Purchasers (other than as a result of a material adverse change in the
business or financial condition of the
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Company) and, if such method of disposition is a firm commitment underwritten
public offering, all such shares shall have been sold pursuant thereto.
(e) Following receipt of any notice under subsection 2(b), the
Company shall immediately notify all holders of Series B/C/D/E Restricted Stock
from whom notice has not been received and such holders shall then be entitled
within 30 days thereafter to request the Company to include in the requested
registration all or any portion of their shares of Series B/C/D/E Restricted
Stock. The Company shall use its best efforts to register under the Securities
Act, for public sale in accordance with the method of disposition described in
subsection 2(b), the number of shares of Series B/C/D/E Restricted Stock
specified in such notice (and in all notices received by the Company from other
holders within 30 days after the giving of such notice by the Company). The
Company shall be obligated to register Series B/C/D/E Restricted Stock pursuant
to subsection 2(b) on three occasions only; provided, however, that such
obligation shall be deemed satisfied only when a registration statement,
covering all of the offered shares of Series B/C/D/E Restricted Stock specified
in notices received as aforesaid for sale in accordance with the method of
disposition specified by the requesting holders, shall have become effective or
if such registration statement has been withdrawn prior to the consummation of
the offering at the request of the Series B Purchasers, the Series D Purchaser
or the Series E Purchaser (other than as a result of a material adverse change
in the business or financial condition of the Company) and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto, or, if such method of disposition
includes the resale of the shares from time to time at prevailing market prices,
such registration statement has remained effective and available for resale for
at least 120 days.
(f) The Company (or at the option of the Company, the holders
of Common Stock) shall be entitled to include in any registration statement
referred to in this Section 2, for sale in accordance with the method of
disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account or the account of such other holders,
except as and to the extent that, in the opinion of the managing underwriter (if
such method of disposition shall be an underwritten public offering), such
inclusion would adversely affect the marketing of the Restricted Stock to be
sold subject to the limitations set forth in subsection 2(g) hereof). Except for
registration statements on Form S-4, S-8 or any successor thereto, the Company
will not file with the Commission any other registration statement with respect
to its Common Stock, whether for its own account or that of other stockholders,
from the date of receipt of a notice from requesting holders pursuant to this
Section 2 until the completion of the period of distribution of the registration
contemplated thereby.
(g) If, in the opinion of the managing underwriter, the
inclusion of all of the Restricted Stock requested to be registered under this
Section would adversely affect the marketing of such shares, then, (i) in the
case of a registration requested pursuant to clause (i)
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of subsection 2(a), shares to be sold by the Company or other holders of Common
Stock (including the Founders) shall first be excluded, and then if necessary,
shares of Original Restricted Stock to be sold by the Series A Purchasers shall
be excluded in such manner that the shares to be sold shall be allocated among
the Series A Purchasers selling Original Restricted Stock pro rata based on
their ownership of Original Restricted Stock, (ii) in the case of a registration
requested pursuant to clause (ii) of subsection 2(a), shares to be sold by the
Company or any other holders of Common Stock (excluding the Founders and
including any shares of Original Restricted Stock held by the Series A
Purchasers) shall first be excluded, and then if necessary, shares of Original
Restricted Stock to be sold by the Founders shall be excluded in such manner
that the shares to be sold shall be allocated among the Founders selling
Original Restricted Stock pro rata based on their ownership of Original
Restricted Stock, and (iii) in the case of a registration requested pursuant to
subsection 2(b), shares to be sold by the Company or other holders of Common
Stock shall first be excluded, and then if necessary, shares of Series B/C/D/E
Restricted Stock to be sold by the Series B Purchasers, the Series D Purchaser
and the Series E Purchaser shall be excluded in such a manner that the shares to
be sold shall be allocated among the Series B Purchasers, the Series D Purchaser
and the Series E Purchaser selling Series B/C/D/E Restricted Stock pro rata
based on their ownership of Series B/C/D/E Restricted Stock; provided, however,
that in any registration in which both the Series A Purchasers and Founders
shall have requested registration pursuant to both clauses (i) and (ii) of
subsection 2(a), then shares to be sold by the Company or other holders of
Common Stock (including the Founders) shall first be excluded, and then if
necessary, shares of Original Restricted Stock to be sold by the Series A
Purchasers shall be excluded in such manner that the shares to be sold shall be
allocated among the Series A Purchasers selling Original Restricted Stock pro
rata based on their ownership of Original Restricted Stock.
3. Incidental Registration. If, following the Company's first
registered public offering of its Common Stock, the Company at any time (other
than pursuant to Section 2 or Section 4) proposes to register any of its
securities under the Securities Act for sale to the public, whether for its own
account only or for its own account and for the account of other security
holders (except with respect to registration statements on Forms S-4, S-8 or
another form not available for registering the Restricted Stock for sale to the
public), each such time it will give written notice to all Purchasers holding
outstanding Restricted Stock of its intention so to do. Upon the written request
of any such holder received by the Company within 30 days after the giving of
any such notice by the Company to register at least 450,000 shares
(appropriately adjusted for any of the events specified in Section 8 herein) of
its Restricted Stock, the Company will use its best efforts to cause the
Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder (in accordance with such written request) of
such Restricted Stock so registered. In the event that any registration pursuant
to this Section 3 shall be, in whole or in part, an underwritten public offering
of Common Stock, the
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number of shares of Restricted Stock to be included in such an underwriting may
be reduced (pro rata among the requesting holders based upon the number of
shares of Restricted Stock held by such requesting holders) if and to the extent
that the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein, but in no event shall the amount of securities of the requesting
holders be reduced below thirty percent (30%) of the total amount to be included
in such offering; provided, however, that such number of shares of Restricted
Stock shall not be reduced if any shares are to be included in such underwriting
for the account of any person (including the Founders) other than the Company or
requesting Purchasers holding Restricted Stock. Notwithstanding the foregoing
provisions, the Company may withdraw any registration statement referred to in
this Section 3 without thereby incurring any liability to the holders of
Restricted Stock.
4. Registration on Form S-3.
(a) If at any time (i) a holder or holders of Restricted Stock
then outstanding request that the Company file a registration statement on Form
S-3 or any successor thereto for a public offering of all or any portion of the
shares of Restricted Stock held by such requesting holder or holders, the
reasonably anticipated aggregate price to the public of which would exceed
$1,000,000, and (ii) the Company is a registrant entitled to use Form S-3 or any
successor thereto to register such shares, then the Company shall use its best
efforts to register under the Securities Act on Form S-3 or any successor
thereto, for public sale in accordance with the method of disposition specified
in such notice, the number of shares of Restricted Stock specified in such
notice. Whenever the Company is required by this Section 4 to use its best
efforts to effect the registration of Restricted Stock, each of the procedures
and requirements of Section 2 (including but not limited to the requirement that
the Company notify all holders of Restricted Stock from whom notice has not been
received and provide them with the opportunity to participate in the offering)
shall apply to such registration, provided, however, that no more than two (2)
registrations on Form S-3 may be requested and obtained under this Section 4
within any twelve (12) month period preceding the date of such request.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to register Restricted
Stock under the Securities Act on registration statements ("Registration
Statements") may, upon the reasonable determination of the Board of Directors
made only once during any 12-month period, be suspended in the event and during
such period as unforeseen circumstances (including without limitation (i) an
underwritten primary offering by the Company (which includes no secondary
offering) if the Company is advised in writing by its underwriters that the
registration of the Restricted Stock would have a material adverse effect on the
Company's offering, or (ii) pending negotiations relating to, or consummation
of, a transaction or the occurrence of an event which would require additional
disclosure of material information by the Company
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in Registration Statements or such other filings, as to which the Company has a
bona fide business purpose for preserving confidentiality or which renders the
Company unable to comply with the Commission's requirements) exist (such
unforeseen circumstances being hereinafter referred to as a "Suspension Event")
which would make it impractical or inadvisable for the Company to file the
Registration Statements or such other filings or to cause such to become
effective. Such suspension shall continue only for so long as such event is
continuing but in no event for a period longer than ninety (90) days. The
Company shall notify the Purchasers of the existence and nature of any
Suspension Event.
5. Registration Procedures. If and whenever the Company is
required by the provisions of Sections 2, 3 or 4 to use its best efforts to
effect the registration of any shares of Restricted Stock under the Securities
Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 2, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and each such
amendment and supplement thereto (in each case including all exhibits) and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter reasonably shall
request; provided, however, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
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(e) use its best efforts to list the Restricted Stock covered
by such registration statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to such seller a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Restricted Stock, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) if the offering is underwritten and at the request of any
seller of Restricted Stock, use its best efforts to furnish to such seller on
the date that Restricted Stock is delivered to the underwriters for sale
pursuant to such registration: (i) a copy of an opinion dated such date of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to such seller, to such effect as reasonably
may be requested by counsel for the underwriters, and (ii) a letter dated such
date from the independent public accountants retained by the Company, addressed
to the underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
(h) make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, reasonable access to all financial and other
records, pertinent corporate documents and properties of the Company, as such
parties may reasonably request, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
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(i) cooperate with the selling holders of Restricted Stock and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Restricted Stock to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriters may request at least two business days
prior to any sale of Restricted Stock; and
(j) permit any holder of Restricted Stock which holder, in the
sole and exclusive judgment, exercised in good faith, of such holder, might be
deemed to be a controlling person of the Company, to participate in good faith
in the preparation of such registration or comparable statement and to require
the insertion therein of material, furnished to the Company in writing, which in
the reasonable judgment of such holder and its counsel should be included.
For purposes of Section 5(a) and 5(b) and of Section 2(f), the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby and
180 days after the effective date thereof.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information
requested by the Company with respect to themselves and the proposed
distribution by them as reasonably shall be necessary in order to assure
compliance with federal and applicable state securities laws and to make the
registration statement correct, accurate and complete in all respects with
respect to such sellers; provided, however, that this requirement shall not be
deemed to limit any disclosure obligation arising out of any seller's
relationship to the Company if one of such seller's agents or affiliates is an
officer, director or control person of the Company. In addition, the sellers
shall, if requested by the Company, execute such other agreements, which are
reasonably satisfactory to them and which shall contain such provisions as may
be customary and reasonable in order to accomplish the registration of the
Restricted Stock.
In connection with each registration pursuant to Sections 2, 3
or 4 covering an underwritten public offering, the Company and each seller agree
to enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
6. Expenses. All expenses incurred by the Company in complying
with Sections 2, 3 and 4, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the
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Company, fees and expenses (including counsel fees) incurred in connection with
complying with state securities or "blue sky" laws, fees and expenses of one
counsel for the selling holders of Restricted Stock in connection with the
registration of Restricted Stock (which counsel shall be selected (i) by the
Series A Purchasers selling Original Restricted Stock if such registration is
made pursuant to clause (i) of subsection 2(a), (ii) by the Founders selling
Original Restricted Stock if such registration is made pursuant to clause (ii)
of subsection 2(a), and (iii) by the holders of at least 30% in interest of
shares of Series B/C/D/E Restricted Stock if such registration is made pursuant
to subsection 2(b); provided, however, if both the Series A Purchasers and the
Founders register shares of Original Restricted Stock pursuant to subsection
2(a), such counsel shall be selected by the Series A Purchasers, subject to
approval by the Founders (which approval shall not be unreasonably withheld)),
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of any insurance which might be
obtained, but excluding any Selling Expenses, are called "Registration
Expenses". All underwriting discounts and selling commissions applicable to the
sale of Restricted Stock and the fees and expenses of more than one counsel for
the selling holders of Restricted Stock in connection with the registration of
Restricted Stock are called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement under Sections 2, 3 or 4. All Selling Expenses
in connection with each registration statement under Sections 2, 3 or 4 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
7. Indemnification.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 2, 3 or 4, the Company will
indemnify and hold harmless each holder of Restricted Stock, its officers and
directors, each underwriter of such Restricted Stock thereunder and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such holder, officer, director, underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Sections 2,
3 or 4, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, (ii) any blue sky application or other document
executed by the Company specifically for that purpose or based upon written
information furnished by the Company filed in any state or other jurisdiction in
order to qualify any or all of the Restricted Stock under the securities laws
thereof (any such application, document or information herein called a "Blue Sky
Application"), (iii) the omission or alleged omission to
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<PAGE> 13
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iv) any violation by the Company or its
agents of any rule or regulation promulgated under the Securities Act applicable
to the Company or its agents and relating to action or inaction required of the
Company in connection with such registration, or (v) any failure to register or
qualify the Restricted Stock in any state where the Company or its agents has
affirmatively undertaken or agreed in writing that the Company (the undertaking
of any underwriter chosen by the Company being attributed to the Company) will
undertake such registration or qualification on the seller's behalf (provided
that in such instance the Company shall not be so liable if it has undertaken
its best efforts to so register or qualify the Restricted Stock) and will
reimburse each such holder, and such officer and director, each such underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by any such seller, any such underwriter or any such
controlling person in writing specifically for use in such registration
statement or prospectus.
(b) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 2, 3 or 4, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify and
hold harmless the Company, each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each other holder of
Restricted Stock, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
other seller, underwriter or, controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Sections 2, 3 or 4, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or any Blue Sky Application or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such officer, director, other seller,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action, provided, however, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to
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<PAGE> 14
the Company by such seller specifically for use in such registration statement
or prospectus, and provided, further, however, that the liability of each seller
hereunder shall be limited to the proportion of any such loss, claim, damage,
liability or expense which is equal to the proportion that the public offering
price of the shares sold by such seller under such registration statement bears
to the total public offering price of all securities sold thereunder, but not in
any event to exceed the proceeds received by such seller from the sale of
Restricted Stock covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 7 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 7 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 7 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) The indemnities provided in this Section 7 shall survive
the transfer of any Restricted Stock by such holder.
8. Changes in Common Stock or Preferred Stock. If, and as often
as, there is any change in the Common Stock or the Preferred Shares by way of a
stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that the
rights and privileges granted hereby shall continue with respect to the Common
Stock or the Preferred Shares as so changed.
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<PAGE> 15
9. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Stock to the public without registration,
at all times after 90 days after any registration statement covering a public
offering of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Restricted Stock without
registration.
10. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government, the Charter or Bylaws of the Company or any provision of any
indenture, agreement or other instrument to which it or any of its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except to the extent the
indemnification provisions herein may be deemed not enforceable.
11. Miscellaneous.
(a) Transfers; Assigns. All covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of
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<PAGE> 16
the respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Shares or Restricted Stock), whether so
expressed or not; provided, however, that registration rights conferred herein
on the holders of Preferred Shares, Common Stock or Restricted Stock shall only
inure to the benefit of a transferee of Preferred Shares, Common Stock or
Restricted Stock if (i) there is transferred to such transferee at least 300,000
shares of such stock (appropriately adjusted for any of the events specified in
Section 8 hereof) to the direct or indirect transferor of such transferee or
(ii) such transferee is a Qualified Transferee (as such term is defined in that
certain Third Amended and Restated Stockholders' Agreement by and among the
Company, the Purchasers and the Founders (the "Stockholders' Agreement")) and
(iii), that such transferee executes a writing agreeing to be bound by the
provisions of this Agreement and the Stockholders' Agreement (to the extent the
same remains in effect).
(b) Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by certified or
registered mail, return receipt requested, postage prepaid, or telexed, in the
case of non-U.S. residents, addressed as follows:
if to the Company or any other party hereto, at the address of
such party and its counsel set forth in the Series A Purchase Agreement, Series
B Purchase Agreement, the Series D Purchase Agreement, the Series E Purchase
Agreement or in the Stockholders' Agreement with a copy to the Company's counsel
as indicated in the Series A Purchase Agreement;
if to any subsequent holder of Preferred Shares or Restricted
Stock, to it at such address as may have been furnished to the Company in
writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Preferred Shares or
Restricted Stock) or to the holders of Preferred Shares or Restricted Stock (in
the case of the Company) in accordance with the provisions of this paragraph.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with and governed by the General Corporation Law of the
State of Delaware as to matters within the scope thereof, and as to all other
matters shall be governed by and construed in accordance with the internal laws
of the Commonwealth of Massachusetts.
(d) Amendments; Modifications. This Agreement may not be
amended or modified, and no provision hereof may be waived, without the written
consent of the Company and the holders of (i) at least 50% of the Founders'
Registrable Shares, (ii) at least 50% of the Conversion Shares, and (iii) at
least 60% of the outstanding shares of Series B/C/D Restricted Stock; provided,
however, that any amendment, modification or waiver that would directly or
indirectly impair or adversely affect the rights of the holders of Series
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<PAGE> 17
B/C/D/E Restricted Stock under, or the ability of such holders to exercise their
rights under, Sections 2 and 3 of this Agreement, shall not be effective without
the written consent of the holders of at least 50% of the outstanding shares of
Series B/C/D/E Restricted Stock. Notwithstanding the foregoing, no amendment,
modification or waiver approved in accordance herewith shall be effective if and
to the extent such amendment, modification or waiver directly or indirectly
grants to the holders of any type of Restricted Stock any rights more favorable
than any rights granted hereunder to the holders of any other type of Restricted
Stock or otherwise treats the holders of any type of Restricted Stock
differently than the holders of any other type of Restricted Stock. Any
amendment, modification or waiver to this Section 11(d) shall require the
written consent of the holders of (i) at least 50% of the Founders' Registrable
Shares, (ii) at least 50% of the Conversion Shares, (iii) at least 60% of the
outstanding shares of Series B/C/D Restricted Stock, and (iv) at least 50% of
the outstanding shares of Series B/C/D/E Restricted Stock.
(e) Counterpart Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) Term. The obligations of the Company to register shares of
Restricted Stock under Sections 2, 3 or 4 shall terminate five years after
completion of a Qualified Public Offering (as defined in Section 6.01 of the
Series E Purchase Agreement).
(g) Lock-up Agreement. If requested in writing by the
underwriters for the initial underwritten public offering of securities of the
Company, each holder of Restricted Stock who is a party to this Agreement shall
agree not to sell publicly any shares of Restricted Stock or any other shares of
Common Stock (other than shares of Restricted Stock or other shares of Common
Stock being registered in such offering), without the consent of such
underwriters, for a period of not more than 180 days following the effective
date of the registration statement relating to such offering; provided, however,
that all (i) persons entitled to registration rights with respect to shares of
Common Stock who are not parties to this Agreement, (ii) executive officers,
(iii) directors and (iv) employees who hold, or have been awarded options to
purchase, an aggregate of up to 360,000 shares of Common Stock of the Company,
shall also have agreed not to sell publicly their shares of Common Stock under
the circumstances and pursuant to the terms set forth in this Section 11(g).
(h) Other Registrations. The Company shall not grant to any
third party any registration rights comparable to or more favorable than any of
those contained herein, so long as any of the registration rights under this
Agreement remains in effect.
(i) Severability. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or
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<PAGE> 18
unenforceable any other provision of this Agreement, and this Agreement shall be
carried out as if any such illegal, invalid or unenforceable provision were not
contained herein.
(j) Amendment of Prior Agreement. The Company, the Founders
and the Series A Purchasers, the Series B Purchasers and the Series D Purchaser
(including the holders of at least (i) 50% of the Founders' Registrable Shares,
(ii) 50% of the Conversion Shares, and (iii) 50% of the outstanding shares of
Series B/C/D Restricted Stock (as such terms are defined in the Prior
Agreement)) hereby agree pursuant to Section 11(d) of the Prior Agreement that
the Prior Agreement is hereby amended and restated in the form of this Agreement
and is of no further force or effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 19
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
AKAMAI TECHNOLOGIES, INC.
By: /s/ Paul Sagan
----------------------------
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written.
FOUNDERS:
/s/ Daniel Lewin
---------------------------------
Daniel Lewin
/s/ F. Thomson Leighton
---------------------------------
F. Thomson Leighton
---------------------------------
Jonathan Seelig
---------------------------------
Randall Kaplan
---------------------------------
Preetish Nijahwan
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<PAGE> 20
---------------------------------
Marco Greenberg
---------------------------------
David Karger
---------------------------------
Gilbert B. Friesen
/s/ Paul Sagan
--------------------------------
Paul Sagan
F. Thomson Leighton 1998 Irrevocable Trust
By: /s/ Daniel Lewin
------------------------------
Print Name: Daniel Lewin
----------------------
Title: Trustee
--------------------------
Daniel Lewin 1998 Irrevocable Trust
By: /s/ F.T. Leighton
------------------------------
Print Name: F.T. Leighton
---------------------
Title: Trustee
---------------------------
Arthur H. Bilger 1996 Family Trust
By:
------------------------------
Print Name: ---------------------
Title:
---------------------------
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<PAGE> 21
SERIES A PURCHASERS:
BATTERY VENTURES IV, L.P.
By: Battery Partners IV, LLC
By: /s/ Todd Dagres
--------------------------------
Member Manager
BATTERY INVESTMENT PARTNERS IV, LLC
By: /s/ Todd Dagres
--------------------------------
Member Manager
ADASE PARTNERS, L.P.
By: /s/ Arthur H. Bilger
-------------------------------
Print Name: Arthur H. Bilger
------------------------
Title: Managing Member
----------------------------
/s/ Paul Sagen
-----------------------------------
Paul Sagan
David Allan Kaplan Revocable Trust Dated
December 19, 1980
By:
--------------------------------
Print Name:
------------------------
Title:
----------------------------
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<PAGE> 22
/s/ Jonathan Seelig
--------------------------------
Jonathan Seelig
--------------------------------
Michael Seelig
--------------------------------
Julie Seelig
--------------------------------
Gilbert B. Friesen
Ehrenkranz & Ehrenkranz LLP
By:
-----------------------------
Print Name:
---------------------
Title:
--------------------------
Peter Morton Lifetime Trust
By:
-----------------------------
Print Name:
---------------------
Title:
--------------------------
--------------------------------
Brian T. Bedol
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<PAGE> 23
Richard Donner & Lauren Shuler Donner as
trustees of the R&L Donner Trust under
the amended and restated trust agreement
dated 12/15/95
By:
--------------------------------
Print Name:
------------------------
Title:
----------------------------
Straight Arrow Publishers Company, L.P.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
-----------------------------------
Randall Kaplan
-----------------------------------
Earl P. Galleher III
-----------------------------------
Linda Eder Ross
Polaris Venture Partners II L.P.
By: /s/ Terence McGuire
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
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<PAGE> 24
Polaris Venture Partners Founders Fund II L.P.
By: /s/ Terence McGuire
--------------------------------
Print Name: Terence McGuire
------------------------
Title:
-----------------------------
/s/ George Conrades
-----------------------------------
George Conrades
-----------------------------------
David F. Callan
-----------------------------------
Scott Morrisse
-----------------------------------
Thomas A. Herring
SERIES B PURCHASERS:
AT INVESTORS LLC
By: /s/ Arthur H. Bilger
--------------------------------
Print Name: Arthur H. Bilger
------------------------
Title: Managing Member
----------------------------
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<PAGE> 25
BAKER COMMUNICATIONS FUND, L.P.
By: Baker Capital Partners, LLC
its General Partner
By: /s/ Edward W. Scott
--------------------------------
Print Name: Edward W. Scott
------------------------
Title: General Partner
-----------------------------
BATTERY INVESTMENT PARTNERS IV, LLC
By: /s/ Todd Dagres
--------------------------------
Print Name: Todd Dagres
------------------------
Title: Member Manager
----------------------------
BATTERY VENTURES IV, L.P.
By: /s/ Todd Dagres
--------------------------------
Print Name: Todd Dagres
------------------------
Title: Member Manager
-----------------------------
-----------------------------------
Brian T. Bedol
-----------------------------------
David F. Callan
/s/ George Conrades
-----------------------------------
George Conrades
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<PAGE> 26
DAVID ALLAN KAPLAN REVOCABLE TRUST
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
_________________________________
James Dolce
EHRENKRANZ & EHRENKRANZ LLP
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
_________________________________
Gilbert B. Friesen
_________________________________
Earl P. Galleher III
_________________________________
Thomas A. Herring
_________________________________
Randall Kaplan
_________________________________
Scott Morrisse
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<PAGE> 27
PETER MORTON LIFETIME TRUST
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
POLARIS VENTURE PARTNERS FOUNDERS
FUND II L.P.
By: /s/ Terence McGuire
---------------------------------------
Print Name: Terence McGuire
-------------------------------
Title:
-----------------------------------
POLARIS VENTURE PARTNERS II L.P.
By: /s/ Terence McGuire
---------------------------------------
Print Name: Terence McGuire
-------------------------------
Title:
------------------------------------
RICHARD DONNER & LAUREN SHULER DONNER
AS TRUSTEES OF THE R&L DONNER TRUST
UNDER THE AMENDED AND RESTATED TRUST
AGREEMENT DATED 12/15/95
By:
--------------------------------------
Print Name:
------------------------------
Title:
-----------------------------------
--------------------------------
Linda Eder Ross
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<PAGE> 28
/s/ Paul Sagan
----------------------------------
Paul Sagan
/s/ Jonathan Seelig
----------------------------------
Jonathan Seelig
----------------------------------
Michael Seelig
----------------------------------
Julie Seelig
STRAIGHT ARROW PUBLISHERS CO., L.P.
By:
-------------------------------
Print Name:
-----------------------
Title:
---------------------------
SERIES D PURCHASER:
Apple Computer Inc. Ltd.
By:
---------------------------------
Print Name:
-------------------------
Title:
------------------------------
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<PAGE> 29
SERIES E PURCHASER:
Cisco Systems, Inc.
By: /s/ John Chambers
----------------------------------
Print Name: John Chambers
--------------------------
Title:
------------------------------
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