EXHIBIT 99.3
1.0% CONVERTIBLE SENIOR NOTES DUE 2033
REGISTRATION RIGHTS AGREEMENT
Dated as of December 12, 2003
by and among
Akamai Technologies, Inc.
and
Credit Suisse First Boston LLC
================================================================================
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of December 12, 2003, by and among Akamai Technologies, Inc., a
Delaware corporation (the "COMPANY"), and Credit Suisse First Boston LLC (the
"INITIAL PURCHASER"), who has agreed to purchase the Company's 1.0% Convertible
Senior Notes due 2033 (the "NOTES") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 8, 2003, (the "PURCHASE AGREEMENT"), by and among the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to purchase the
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser set forth in Section 2 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture, dated December 12, 2003, between
the Company and U.S. Bank National Association, as Trustee, relating to the
Notes (the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as
amended.
AFFILIATE: As defined in Rule 144 of the Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date hereof.
COMMON STOCK: Common Stock, $.01 par value per
share, of the Company.
COMMISSION: The Securities and Exchange
Commission.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934,
as amended.
FILING DEADLINE: As defined in Section 3(a) hereof.
HOLDERS: As defined in Section 2 hereof.
NOTES: The up to $200,000,000 aggregate
principal amount of 1.0% Convertible
Senior Notes being issued pursuant to
the Purchase Agreement.
PROSPECTUS: The prospectus included in a
Registration Statement at the time
such Registration Statement is
declared effective, as amended or
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supplemented by any prospectus
supplement and by all other
amendments thereto, including
post-effective amendments, all
material incorporated by reference
into such Prospectus and any
information previously omitted in
reliance upon Rule 430A of the Act.
QUESTIONNAIRE: The written notice delivered to the
Company containing the information
called for by the Selling
Securityholder Notice and
Questionnaire attached as Exhibit A
to the Offering Memorandum dated
December 12, 2003 relating to the
Notes.
RECOMMENCEMENT DATE: As defined in Section 5(b) hereof.
REGULATION S: Regulation S promulgated under the
Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
SUSPENSION NOTICE: As defined in Section 5(b) hereof.
TIA: The Trust Indenture Act of 1939
(15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the
Indenture.
TRANSFER RESTRICTED SECURITIES: The Notes and the shares of Common
Stock into which the Notes are
convertible, upon original issuance
thereof, and at all times subsequent
thereto, until, in the case of any
such Notes or shares of Common Stock,
(a) the date on which such Notes or
shares of Common Stock have been
registered under the Act and disposed
of in accordance with the Shelf
Registration Statement, (b) the date
on which such Notes or shares of
Common Stock are distributed to the
public pursuant to Rule 144 or are
saleable pursuant to Rule 144(k) (or
similar provisions then in effect)
under the Act or (c) the date on
which such Notes or shares of Common
Stock cease to be outstanding.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns of record Transfer Restricted
Securities.
SECTION 3. SHELF REGISTRATION
(a) Shelf Registration. As soon as practicable after the Closing Date
but in no event later than 90 days after the Closing Date (such 90th day,
"FILING DEADLINE"), the Company shall file with the Commission a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION
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STATEMENT"), relating to all Transfer Restricted Securities, and shall use its
reasonable best efforts to cause such Shelf Registration Statement to become
effective on or prior to 210 days after the Closing Date (such 210th day, the
"EFFECTIVENESS DEADLINE").
The Company shall use its reasonable best efforts to keep any Shelf
Registration Statement required by this Section 3(a) continuously effective,
supplemented and amended as required by and subject to the provisions of Section
5(a) hereof to the extent necessary to ensure that it is available for sales of
Transfer Restricted Securities by the Holders thereof entitled to the benefit of
this Section 3(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for the shorter of (i) two years or (ii) the date
on which all Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
Under Section 2 of the Notes, the Company will pay Special Interest with
respect to the first 90-day period immediately following the occurrence of a
Registration Default (as defined therein) in an amount equal to an increase in
the annual interest rate on the Notes of 0.25% and, with respect to any
subsequent periods, additional amounts equal to an increase in the annual
interest rate on the Notes of 0.25% until all Registration Defaults have been
cured.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing a Questionnaire prior to any intended distribution. Each
selling Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
SECTION 4. [INTENTIONALLY OMITTED]
SECTION 5. SHELF REGISTRATION PROCEDURES
(a) Procedures. In connection with the Shelf Registration Statement,
the Company shall:
(i) use its reasonable best efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to Section 3(b)
hereof), and pursuant thereto the Company will prepare and file with the
Commission a Shelf Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof (including, without limitation, one or more
underwritten offerings) within the time periods and otherwise in accordance with
the provisions hereof. The Company shall not be permitted to include in the
Shelf Registration Statement any securities other than the Transfer Restricted
Securities.
(ii) use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 of this Agreement.
Upon the occurrence of any event (including, without limitation, pending
negotiations relating to, or the consummation of, a transaction or the
occurrence of any event which would require additional
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disclosure of material non-public information by the Company in the Shelf
Registration Statement as to which the Company has a bona fide business purpose
for preserving confidential or which renders the Company unable to comply with
Commission requirements) that would cause any such Shelf Registration Statement
or the Prospectus contained therein (A) to contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Shelf Registration Statement curing such defect, and, if Commission review is
required, use its best efforts to cause such amendment to be declared effective
as soon as practicable; provided that in the event of a material business
transaction or other prospective corporate development (including, without
limitation, pending negotiations relating to such a transaction) which would, in
the reasonable discretion of the Company, make it appropriate to suspend the
availability of the Shelf Registration Statement, then for so long as such
circumstances exist, the Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder.
(iii) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the applicable
period set forth in Section 3 hereof, cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the provisions of
the Act with respect to the disposition of all Transfer Restricted Securities
covered by such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Shelf Registration Statement or supplement to the
Prospectus;
(iv) advise the Holders and underwriters, if any, promptly and,
if requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Shelf Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under the Act
or of the suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, and (D) of
the existence of any fact or the happening of any event (including, without
limitation, pending negotiations relating to, or the consummation of, a
transaction or the occurrence of any event which would require additional
disclosure of material non-public information by the Company in the Shelf
Registration Statement as to which the Company has a bona fide business purpose
for preserving confidential or which renders the Company unable to comply with
Commission requirements) that makes any statement of a material fact made in the
Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement so that the statements therein are not misleading and do not omit to
state a material fact required to be stated therein, or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company shall
use its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
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(v) subject to Section 5(a)(ii), if any fact or event
contemplated by Section 5(iv)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(vi) furnish to each Holder named in any Shelf Registration
Statement or Prospectus and underwriter, if any, in connection with such sale
before filing with the Commission, copies of any Shelf Registration Statement or
any Prospectus included therein or any amendments or supplements to any such
Shelf Registration Statement or Prospectus (other than documents incorporated by
reference after the initial filing of such Shelf Registration Statement), which
documents will be subject to the review and comment of such Persons in
connection with such sale, if any, for a period of at least five (5) Business
Days, and the Company will not file any such Shelf Registration Statement or
Prospectus or any amendment or supplement to any such Shelf Registration
Statement or Prospectus (other than documents incorporated by reference) to
which such Persons shall reasonably object within five (5) Business Days after
the receipt thereof. Any such Person shall be deemed to have reasonably objected
to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue statement
of a material fact or omits to state any material fact necessary to make the
statements therein not misleading or fails to comply with the applicable
requirements of the Act;
(vii) if requested by any Holders or underwriters, if any, in
connection with such sale, promptly include in any Shelf Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders or underwriters, if any, may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer Restricted
Securities, so that the Holder is named as a selling security holder in a Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of Transfer Restricted
Securities in accordance with the Act; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
the Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment; provided, however, that (i) any
supplement to a Prospectus filed pursuant to this Section 5(a)(vii) shall be
filed within five (5) Business Days after receipt of a duly completed and
executed Questionnaire (provided, that with respect to any Questionnaire
received by the Company after the date that is thirty (30) days after the date
the Shelf Registration Statement becomes effective under the Act, the Company
shall not be required to file more than one (1) such supplement during any
twenty (20) day period) and (ii) if a post-effective amendment is required by
the rules and regulations of the Commission in order to permit resales by
Holders who were not named as selling security holders in the initial Shelf
Registration Statement as of the time it became effective under the Act, the
Company shall not be required to file more than one (1) post-effective amendment
for such purpose in any three (3) month period. If the Company shall file a
post-effective amendment to the Shelf Registration Statement, it shall use its
reasonable best efforts to cause such post-effective amendment to become
effective under the Act as promptly as is practicable.
(viii) make available to each Holder and underwriter, if any,
without charge, at least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
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(ix) deliver to each Holder and underwriter, if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each Holder and each
underwriter, if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(x) upon the request of any Holder or underwriter, if any, enter
into such agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Shelf Registration Statement contemplated
by this Agreement as may be reasonably requested by such Person in connection
with any sale or resale pursuant to any applicable Shelf Registration Statement
and in such connection, the Company shall:
(A) upon request of any Holder or underwriter, if any, furnish (or
in the case of paragraphs (2) and (3) below, use its reasonable
best efforts to cause to be furnished) to each Holder or
underwriter, if any, upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the President or any Vice President and (y)
a principal financial or accounting officer of the
Company, confirming, as of the date thereof, the matters
set forth in Sections 6(dd), 9(a) and 9(b) of the Purchase
Agreement and such other similar matters as the Holders
may reasonably request;
(2) make available at reasonable times for inspection by the
Holders and underwriters, if any, and any attorney or
accountant retained by such Holders, or underwriters, if
any, all financial and other records, pertinent corporate
documents of the Company and cause the Company's officers,
directors and employees to supply all information
reasonably requested by any such Holder, underwriters, if
any, attorney or accountant in connection with such Shelf
Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness, provided, however, that the foregoing
inspection and information gathering shall be coordinated
by one counsel designated by the Holders and that such
persons shall first agree in writing with the Company that
any information that is designated in writing by the
Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by
such person, unless such disclosure is made in connection
with a court proceeding or required by law, or such
information becomes available to the public generally or
through a third party without an accompanying obligation
of confidentiality;
(3) in the case of an underwritten offering, an opinion, dated
the date effectiveness of the Shelf Registration Statement
and addressed to the underwriters, of counsel for the
Company covering matters similar to those set forth in
paragraph (e) of Section 9 of the Purchase Agreement and
such other matter as the selling Holders may reasonably
request, and in any event including a statement to the
effect that such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the independent public accountants for
the Company and have
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considered the matters required to be stated therein and
the statements contained therein, although such counsel
has not independently verified the accuracy, completeness
or fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying as to
materiality to the extent such counsel deems appropriate
upon the statements of officers and other representatives
of the Company), no facts came to such counsel's attention
that caused such counsel to believe that the Shelf
Registration Statement, at the time such Shelf
Registration Statement or any post-effective amendment
thereto became effective, contained an untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus
contained in such Shelf Registration Statement as of its
date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy,
completeness or fairness of the financial statements,
notes and schedules and other financial data included in
any Registration Statement contemplated by this Agreement
or the related Prospectus; and
(4) in the case of an underwritten public offering, a
customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement and
addressed to the underwriters, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section
9(g) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the Holders and underwriters, if any, to
evidence compliance with the matters set forth in clause (A)
above and with any customary conditions contained in any
agreement entered into by the Company pursuant to this clause
(x);
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the Holders, underwriters, if any, and their
respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions, if any, as such Persons may request and do any and all other acts
or things necessary or advisable to enable the disposition in such jurisdictions
of the Transfer Restricted Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be required to register
or qualify as a foreign corporation where it is not now so qualified or to take
any action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the Shelf
Registration Statement, in any jurisdiction where it is not now so subject;
(xii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations and such names as the
Holders may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
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(xiii) (A) list all shares of Common Stock covered by such Shelf
Registration Statement on any securities exchange on which the Common Stock is
then listed or (B) authorize for quotation on the National Association of
Securities Dealers Automated Quotation System ("Nasdaq") or the National Market
System of Nasdaq all shares of Common Stock covered by such Shelf Registration
Statement if the Common Stock is then so authorized for quotation.
(xiv) use its reasonable best efforts to cause the disposition
of the Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (xi) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Shelf Registration Statement
covering such Transfer Restricted Securities and provide the Trustee under the
Indenture with certificates for the Transfer Restricted Securities which are in
a form eligible for deposit with the Depository Trust Company;
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders with regard to any applicable Registration Statement, as
soon as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);
(xvii) if underwritten, make appropriate officers of the Company
available to the underwriters for meetings with prospective purchasers of the
Transfer Restricted Securities and prepare and present to potential investors
customary "road show" material in a manner consistent with other new issuances
of other securities similar to the Transfer Restricted Securities; and
(xiii) cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use its best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xix) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or Section
15(d) of the Exchange Act.
(b) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 5(a)(iv)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 5(a)(iv)(D) hereof (in each case, a "SUSPENSION
NOTICE"), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder's has received copies of the supplemented or amended Prospectus
contemplated by Section 5(a)(v) hereof, or (ii) such Holder is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "RECOMMENCEMENT DATE"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
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destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the Suspension Notice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Shelf Registration Statement required by this Agreement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses; (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Common Stock to be issued upon conversion of the
Notes and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company (subject
to clause (b) below); (v) all application and filing fees in connection with
listing the Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company will pay, on behalf of the Initial Purchaser and the
Holders selling Transfer Restricted Securities pursuant to the "Plan of
Distribution" contained in the Shelf Registration Statement, the reasonable fees
and disbursements of not more than one counsel, who shall be Ropes & ▇▇▇▇ LLP,
unless another firm shall be chosen by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities (provided that holders of
Common Stock issued upon conversion of the Notes shall be deemed to be holders
of the aggregate principal amount of Notes from which such Common Stock was
converted) for whose benefit such Shelf Registration Statement is being
prepared.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder,
its partners, its directors, its officers and each Person, if any, who controls
such Holder (within the meaning of Section 15 of the Act and Section 20 of the
Exchange Act), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Company to any Holder or any prospective purchaser of registered
Notes or registered shares of Common Stock or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by an untrue
statement or
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omission or alleged untrue statement or omission that is based upon information
relating to any of the Holders furnished in writing to the Company by any of the
Holders.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and its directors
and officers, and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company, to the
same extent as the foregoing indemnity from the Company set forth in Section
7(a) above, but only with reference to information relating to such Holder
furnished in writing to the Company by such Holder expressly for use in any
Registration Statement. In no event shall any Holder, its partners, its
directors, its officers or any Person, if any, who controls such Holder be
liable or responsible for any amount in excess of the amount by which the total
amount received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Shelf Registration Statement exceeds the amount of any
damages that such Holder, its partners, its directors, its officers or any
Person, if any, who controls such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 7(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 7(a), and by
the Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action effected with its written consent. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability
10
or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 7(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand, and of the Holders, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holders, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action that
could have given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 7, no Holder or its related
Indemnified Holders shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of its Transfer Restricted Securities pursuant to a
Registration Statement exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each of the Holders hereunder and not
joint.
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SECTION 8. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
SECTION 9. UNDERWRITTEN REGISTRATIONS
(a) If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Company, subject to the approval
by the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities (provided that holders of Common Stock issued upon
conversion of the Notes shall be deemed to be holders of the aggregate principal
amount of Notes from which such Common Stock was converted), such approval not
to be unreasonably withheld or delayed, and the terms of such underwritten
offering will be approved by the Holders of a majority in aggregate principal
amount of such Transfer Restricted Securities (provided that holders of Common
Stock issued upon conversion of the Notes shall be deemed to be holders of the
aggregate principal amount of Notes from which such Common Stock was converted),
subject to the consent of the Company, such consent not to be unreasonably
withheld or delayed.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder unless such Holder (i) agrees to sell its
Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if
requested (pursuant to a timely written notice) by the managing underwriters in
an underwritten offering made pursuant to a Shelf Registration Statement, not to
effect any private sale or distribution (including a sale pursuant to Rule
144(k) and Rule 144A, but excluding non-public sales to any of its affiliates,
officers, directors, employees and controlling persons) of any of the Notes, in
the case of an underwritten offering of the Notes, or the Common Stock, in the
case of an underwritten offering of shares of Common Stock constituting Transfer
Restricted Securities, during the period beginning not more than 20 days prior
to, and ending 90 days after, the closing date of such underwritten offering.
The foregoing provisions of Section 9(b) shall not apply to any
Holder of Transfer Restricted Securities if such Holder is prevented by
applicable statute or regulation from entering into any such agreement.
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(c) If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the underwriters, their
controlling persons and their respective officers, directors, employees,
representatives and agents shall be entitled to indemnity (substantially similar
to the indemnity set forth in Section 7 of the Agreement) from the Company and
the Holders, which indemnity may be set forth in an underwriting agreement.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 3 hereof may result in
material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 3 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate. Other than the equitable
remedy of specific enforcement, the sole damages payable for a violation of the
terms of this Agreement for which Special Interest is expressly provided in
Section 2 of the Notes shall be such Special Interest.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Except pursuant to the
agreements listed on Annex A, the Company has not previously entered into any
agreement (which has not expired or been terminated) granting any registration
rights with respect to its securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof that has not been waived.
(c) No Piggybacks on Shelf Registration Statement. The Company shall
not grant to any of its security holders (other than the holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in any Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (I) in the case of this
Section 10(d)(I), the Company has obtained the written consent of all
outstanding Transfer Restricted Securities and (II) in the case of all other
provisions hereof, the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount (provided that holders of Common
Stock issued upon conversion of the Notes shall be deemed to be holders of the
aggregate principal amount of Notes from which such Common Stock was converted)
of Transfer Restricted Securities (excluding Transfer Restricted Securities held
by the Company or its Affiliates).
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be
13
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
Akamai Technologies, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: 617-526-5000
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall
14
not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(The remainder of this page has been intentionally left blank)
15
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
AKAMAI TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
ANNEX A
AGREEMENTS AS TO REGISTRATION RIGHTS
Fourth Amended and Restated Registration Rights Agreement dated
September 20, 1999
