EXECUTION VERSION
12,000,000 Shares
AKAMAI TECHNOLOGIES, INC.
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
October 31, 2005
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Akamai Technologies, Inc., a Delaware corporation (the "Company"),
proposes to sell to Deutsche Bank Securities Inc. (the "Underwriter") an
aggregate of 12,000,000 shares of the Company's Common Stock, $0.01 par value
(the "Firm Shares"). The Company also proposes to sell at the Underwriter's
option an aggregate of up to 1,800,000 additional shares of the Company's Common
Stock (the "Option Shares") as set forth below. The Firm Shares and the Option
Shares, to the extent the aforementioned option is exercised, are collectively
referred to herein as the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, on Form S-3
(File No. 333-53906), relating to the Shares. The registration statement as
amended to the date of this Agreement, including the information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A under the Securities Act of 1933, as amended (the "Securities
Act"), is hereinafter referred to as the "Registration Statement," and the
related prospectus covering the Shares in the form contained in the Registration
Statement at the time of effectiveness is hereinafter referred to as the "Base
Prospectus." The Base Prospectus, as supplemented by the prospectus supplement
specifically relating to the Shares in the form first used to confirm sales of
the Shares is hereinafter referred to as the "Prospectus," and the term
"preliminary prospectus" means any preliminary form of the Prospectus. As used
herein, the terms "Registration Statement," "Base Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated therein by reference. If the Company has filed an abbreviated
registration statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such
Rule 462 Registration Statement. The terms "supplement," "amendment" or "amend"
as used in this Agreement with respect to the Registration Statement, Base
Prospectus, Prospectus or preliminary prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are deemed to be
incorporated by reference therein.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to the Underwriter as
follows:
(i) At the time the Registration Statement was filed with the
Commission, the Company met the applicable eligibility requirements for use of
Form S-3; the Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(ii) (A) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Registration Statement
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (B)
the Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any 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, (C) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (D) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, provided, however, that the Company
makes no representations or warranties as to information contained in or omitted
from the Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriter specifically for use
therein.
(iii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Prospectus. Each of the subsidiaries of
the Company as listed in Schedule I hereto (collectively, the "Subsidiaries")
has been duly organized and is validly existing under the laws of the
jurisdiction of its organization as an entity of the type specified in such
Schedule I and is in good standing under such laws (to the extent such status
exists under such laws), with corporate or similar power and authority to own or
lease its properties and conduct its business as described in the Prospectus.
The Subsidiaries are the only subsidiaries, direct or indirect, of the Company.
The Company and each
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of the Subsidiaries are duly qualified to transact business in all jurisdictions
in which the conduct of their business requires such qualification, except for
such jurisdictions where the failure to so qualify would not, individually or in
the aggregate, result in any material adverse change in the business, financial
condition, results of operations or prospects of the Company or its
Subsidiaries, taken together as a whole (a "Material Adverse Change"). The
outstanding shares of capital stock or other ownership interests of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable (to the extent such status exists under the laws of the
jurisdictions in which the Subsidiaries are organized) and are owned by the
Company or another Subsidiary free and clear of all liens, encumbrances and
equities and claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(iv) The outstanding shares of Common Stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; the Shares have been duly authorized and when issued and paid
for as contemplated herein will be validly issued, fully paid and
non-assessable; and no preemptive rights of stockholders exist with respect to
any of the Shares or the issue and sale thereof. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated by
this Agreement gives rise to any rights, other than those which have been waived
or satisfied, for or relating to the registration of any shares of Common Stock
of the Company.
(v) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct as of the date or dates
indicated. All of the Shares conform to the description thereof contained in the
Prospectus. Except as described in the Prospectus and except as has been granted
under the (i) the Second Amended and Restated 1998 Stock Incentive Plan, (ii)
the 2001 Incentive Stock Option Plan, and (iii) the 1999 Employee Stock Purchase
Plan, , (A) there are no outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of capital stock of the Company and (B) there are no outstanding or
authorized options, warrants or rights of any character obligating the Company
to issue any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of such stock.
(vi) The Commission has not issued an order preventing or
suspending the use of the Prospectus relating to the proposed offering of the
Shares nor instituted, to the Company's knowledge, proceedings for that purpose.
(vii) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes included in the Registration
Statement and the Prospectus, present fairly in all material respects the
financial position, the results of operations and cash flows of the Company and
the consolidated Subsidiaries, at the indicated dates and for the indicated
periods. Such financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently applied throughout the
periods involved, except as disclosed therein, and all adjustments necessary for
a fair presentation of results for such periods have been made. The summary
financial data included in the Prospectus present fairly, on the basis stated in
the Prospectus, the information shown therein and such data have been compiled
on a basis
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consistent with the financial statements presented therein and the books and
records of the Company. The pro forma financial statements and other pro forma
financial information included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(viii) To the Company's knowledge after reasonable inquiry,
(a) PricewaterhouseCoopers LLP, who have certified certain of the financial
statements filed with the Commission as part of the Prospectus, are independent
public accountants as required by the Securities Act and the and the applicable
rules and regulations of the Commission thereunder and Rule 3600T of the Public
Company Accounting Oversight Board (the "PCAOB") and (b) BDO Xxxxxxx, LLP, who
have certified certain of the financial statements of Speedera Networks, Inc. as
independent certified public accountants with respect to the Company under Rule
101 of the AICPA's Code of Professional Conduct, and its interpretations and
rulings.
(ix) There is no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries which if determined adversely to the Company or any of its
Subsidiaries is reasonably likely to result in any Material Adverse Change or
might prevent the consummation of the transactions contemplated hereby, except
as set forth in the Prospectus.
(x) The Company and the Subsidiaries have good and valid title
to all of the properties and assets reflected in the consolidated financial
statements hereinabove described or described in the Prospectus as owned by
them, subject to no lien, mortgage, pledge, charge or encumbrance of any kind
except those reflected in such financial statements or described in the
Prospectus or which do not materially affect the value of such properties and
assets and do not interfere with the use made and proposed to be made of such
properties and assets by the Company and the Subsidiaries. The Company and the
Subsidiaries occupy their leased real properties under valid and binding leases,
with such exceptions as are not reasonably likely to result in a Material
Adverse Change and do not materially interfere with the use made and proposed to
be made of such properties by the Company and the Subsidiaries, except as
described in the Prospectus.
(xi) Since the respective dates as of which information is
given in the Prospectus, as it may be amended or supplemented, (i) there has not
occurred any Material Adverse Change or any development that is reasonably
likely to result in a Material Adverse Change, whether or not occurring in the
ordinary course of business, and there has not been any material transaction
entered into, other than transactions in the ordinary course of business and
changes and transactions described in the Prospectus, as it may be amended or
supplemented and (ii) neither the Company nor any Subsidiary has incurred any
material liability, direct or contingent, nor entered into any material
transaction other than in the ordinary course of business.
(xii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust
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or other agreement or instrument to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary or any of their respective
properties is bound, or of the Certificate of Incorporation of the Company, as
amended and/or restated (the "Charter") or By-Laws of the Company, as amended
and/or restated (the "By-Laws"), or any law, order, rule or regulation judgment,
order, writ or decree applicable to the Company or any Subsidiary of any court
or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions herein
contemplated (except for (A) the filing of the Prospectus specifically relating
to the Shares with the Commission, (B) the electronic filing on COBRADesk,
including the filing of the Prospectus and other documents necessary for the
review of the offering of the Shares in accordance with Rule 2710 of the Conduct
Rules of the National Association of Securities Dealers, Inc. (the "NASD") (C)
letter from the NASD confirming that the NASD shall not have raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements or (D) such additional steps as may be necessary to
qualify the Shares for public offering by the Underwriter under State securities
or Blue Sky laws) has been obtained or made and is in full force and effect.
(xv) The Company and each of the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct its business, other
than those which, if not so possessed, would not result in a Material Adverse
Change, and neither the Company nor any of its Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Change, except as described the Prospectus.
(xvi) The Company and each of the Subsidiaries own or possess,
or believes that it would be able to license on reasonable and customary terms,
all material patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names currently employed by it in connection with the business now
operated by it in the manner in which it is conducted, and neither the Company
nor any of its Subsidiaries have received any notice of infringement of, or
conflict with, asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would be reasonably likely to result in a Material Adverse
Change.
(xvii) Neither the Company, nor to the Company's knowledge,
any of its affiliates, has taken or intends to take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or
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manipulation of the price of the shares of the Company's Common Stock to
facilitate the sale or resale of the Shares. The Company acknowledges that the
Underwriter may engage in passive market making transactions in the Shares on
the Nasdaq National Market in accordance with Regulation M under the Exchange
Act.
(xviii) Neither the Company nor any Subsidiary is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act") and the rules and regulations
of the Commission thereunder or, after giving effect to the offering and sale of
the Shares contemplated hereunder and the application of the net proceeds from
such sale as described in the Prospectus, will be required to register as an
"investment company" pursuant to the 0000 Xxx.
(xix) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals.
(xx) The Company is not aware of (i) any significant
deficiencies or material weaknesses in the design or operation of its internal
controls over financial reporting which are reasonably likely to adversely
affect its ability to record, process, summarize and report financial
information or (ii) any fraud, whether or not material, that involves management
or other employees who have a role in the registrant's internal control over
financial reporting. The Company is not aware of any change in its internal
controls over financial reporting that has occurred since the date of the most
recent evaluation of such internal controls that has materially affected, or is
reasonably likely to materially affect, the Company's internal controls over
financial reporting.
(xxi) The Company and each of its Subsidiaries (i) is in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (the "Environmental Laws"), (ii) has received all permits, licenses
or other approvals required of it under applicable Environmental Laws to conduct
its business and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, result in a
Material Adverse Change.
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(xxii) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, result in a Material Adverse Change.
(xxiii) No material labor dispute with the employees of the
Company or any of its Subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent; and the Company is
not aware of any existing, threatened or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors that
could result in a Material Adverse Change.
(xxiv) The Company and each of its Subsidiaries are insured by
the insurers of recognized financial responsibility against such losses and
risks and in such amounts as, in the Company's reasonable judgment, are prudent
and customary in the businesses in which they are engaged; neither the Company
nor any of its Subsidiaries has been refused any insurance coverage sought or
applied for; and neither the Company nor any of its Subsidiaries has any reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
result in a Material Adverse Change, except as described in the Prospectus.
(xxv) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect
to any securities of the Company, except as has been satisfied or waived. No
such contract, agreement or understanding contains a provision requiring the
Company to include such securities with the Shares registered pursuant to the
Registration Statement.
(xxvi) The Company has established and maintains and evaluates
"disclosure controls and procedures" (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and "internal control over financial reporting"
(as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material
information relating to the Company, including its consolidated Subsidiaries, is
made known to the Company's Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established.
(xxvii) Solely to the extent that the Xxxxxxxx-Xxxxx Act has
been applicable to the Company, there is and has been no failure on the part of
the Company to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act. The Company has taken all necessary actions to ensure that
it is in compliance with all provisions of the Xxxxxxxx-Xxxxx Act that are in
effect and with which the Company is required to comply and is actively taking
steps to ensure that it will be in compliance with other provisions of the
Xxxxxxxx-Xxxxx Act not currently in effect or which will become applicable to
the Company.
(xxviii) There are no relationships or related-party
transactions involving the Company or any of its Subsidiaries or any other
person required to be described in the Prospectus which have not been described
as required.
2. Purchase, Sale and Delivery of the Firm Shares and the Option shares.
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(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriter and the Underwriter agrees to purchase, at a
price of $16.855 per Share, the Firm Shares.
(b) Payment for the Firm Shares to be sold hereunder is to be made
in Federal (same day) funds to an account designated by the Company against
delivery of certificates for the account of the Underwriter. Such payment and
delivery are to be made through the facilities of The Depository Trust Company
at 10:00 a.m., New York time, on the third business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and not permitted by law or executive
order to be closed.)
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriter to purchase the Option Shares
at the price per Share as set forth in the first paragraph of this Section 2.
The option granted hereby may be exercised in whole or in part by giving written
notice (i) at any time before the Closing Date and (ii) only once thereafter
within 30 days after the date of this Agreement, to the Company, setting forth
the number of Option Shares as to which the Underwriter is exercising the option
and the time and date at which such certificates are to be delivered. The time
and date at which certificates for Option Shares are to be delivered shall be
determined by the Underwriter but shall not be earlier than three nor later than
10 full business days after the exercise of such option, nor in any event prior
to the Closing Date (such time and date being herein referred to as the "Option
Closing Date"). If the date of exercise of the option is three or more days
before the Closing Date, the notice of exercise shall set the Closing Date as
the Option Closing Date. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriter. You may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Shares
shall be made on the Option Closing Date in Federal (same day) funds drawn to
the order of the Company for the Option Shares to be sold by it against delivery
of certificates therefor through the facilities of The Depository Trust Company,
New York, New York.
3. Offering by the Underwriter.
It is understood that the Underwriter is to make a public offering
of the Firm Shares as soon as the Underwriter deems it advisable to do so. The
Firm Shares are to be initially offered to the public at the offering price set
forth in the Prospectus.
4. Covenants of the Company.
(a) The Company covenants and agrees with the Underwriter that:
(i) The Company will (A) use its best efforts to prepare and
timely file with the Commission under Rule 424(b) of the rules and regulations
of the Commission promulgated
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pursuant to the Securities Act a Prospectus in a form approved by the
Underwriter containing information previously omitted at the time of
effectiveness of the Registration Statement and (B) not file any amendment to
the Registration Statement or supplement to the Prospectus of which the
Underwriter shall not previously have been advised and furnished with a copy or
to which the Underwriter shall have reasonably objected in writing or which is
not in compliance with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(ii) The Company will advise the Underwriter promptly of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose. The Company will use its reasonable best efforts
to prevent the issuance of any such stop order preventing or suspending the use
of the Prospectus and to obtain as soon as possible the lifting thereof, if
issued.
(iii) The Company will cooperate with the Underwriter in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Underwriter may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information
as may be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as the
Underwriter may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Underwriter, from time to time, as many copies of any preliminary prospectus as
the Underwriter may reasonably request. The Company will deliver to, or upon the
order of, the Underwriter during the period when delivery of a Prospectus is
required under the Securities Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Underwriter may
reasonably request.
(v) The Company will comply with the Securities Act and the
rules and regulations of the Commission thereunder, and the Exchange Act and the
rules and regulations of the Commission thereunder, so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement
and the Prospectus. If during the period in which a prospectus is required by
the Securities Act to be delivered by the Underwriter or dealer, any event shall
occur as a result of which it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law, the Company promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of
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the Registration Statement, an earnings statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, which earnings statement
shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations and will advise you in writing when such statement has
been so made available.
(vii) No offering, sale, short sale or other disposition of
any shares of Common Stock of the Company or other securities convertible into
or exchangeable or exercisable for shares of the Company's Common Stock or
derivative of such Common Stock (or agreement for such), including the filing of
any registration statement under the Securities Act (other than registration
statements on Form S-8) or any other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of Common Stock
of the Company, will be made for a period of 90 days after the date of this
Agreement, directly or indirectly, by the Company otherwise than hereunder or
with the prior written consent of the Underwriter, provided, however, that the
Company may (A) grant stock options, restricted stock, deferred stock units or
other stock-based awards to employees, consultants or directors pursuant to the
terms of its plans in effect on the date hereof and described in the Prospectus
or incorporated by reference therein, (B) issue shares of its Common Stock
pursuant to: (1) the exercise of such options and stock-based awards, (2) the
exercise of any employee stock options outstanding on the date hereof and (3)
the distribution of vested deferred stock units in effect as of the date hereof,
(C) issue shares of its Common Stock upon the conversion of convertible
securities issued prior to the date hereof and described in the Prospectus or
incorporated by reference therein, (D) issue shares of its Common Stock or other
securities convertible into or exchangeable or exercisable for shares of its
Common Stock or derivative of its Common Stock (or enter into agreements for
such) in connection with one or more acquisitions by the Company of assets,
capital stock or businesses of unaffiliated persons or entities (whether by
mergers, exchanges of stock or otherwise), or in connection with the entering
into of one or more strategic partnering agreements with unaffiliated entities,
or (E) issue shares in connection with the acquisition by the Company or one of
its Subsidiaries of the assets or capital stock of another person or entity,
whether through merger, asset acquisition, stock purchase or otherwise, provided
that, in the case of clauses (D) and (E), each person or entity receiving any
such securities of the Company (or entering into any agreement for such)
pursuant to any such acquisition or agreement shall enter into a letter
agreement with transfer restriction terms (including a lock-up period continuing
for 90 days after the date of this Agreement) equivalent to those set forth
above in this sentence.
(viii) The Company will use its best efforts to list the
Shares for quotation on the Nasdaq National Market.
(ix) The Company has caused each of its directors listed on
Schedule II hereto to furnish to you, on or prior to the date of this Agreement,
a letter or letters, in the form attached hereto as Exhibit I, pursuant to which
each such person has agreed not to offer, sell, sell short or otherwise dispose
of any shares of Common Stock of the Company or other capital stock of the
Company, or any other securities convertible, exchangeable or exercisable for
such Common Stock or derivative of such Common Stock owned by such person or
request the registration for the offer or sale of any of the foregoing (or as to
which such person has the right to direct the
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disposition of) for a period of 90 days after the date of this Agreement,
directly or indirectly, except with the prior written consent of the Underwriter
("Lockup Agreements").
(x) The Company shall apply the net proceeds of the sale of
Shares as set forth in the Prospectus.
(xi) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the 1940 Act.
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company; the cost
of printing and delivering to, or as requested by, the Underwriter copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, this
Agreement, the Underwriter's Selling Memorandum (if any), the Underwriters'
Invitation Letter (if any), the Listing Application and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including reasonable legal fees and disbursements) incident to
securing any required review by the NASD of the terms of the sale of the Shares;
the Listing Fee of the Nasdaq National Market; and the expenses, including the
reasonable fees and disbursements of counsel for the Underwriter incurred in
connection with the qualification of the Shares under State securities or Blue
Sky laws. The Company shall not, however, be required to pay for any of the
Underwriter's expenses (other than to the extent set forth in the preceding
sentence with respect to expenses related to qualification under NASD
regulations and State securities or Blue Sky laws) except that, if this
Agreement shall not be consummated, in accordance with the terms hereof, because
the conditions in Section 6 hereof are not satisfied, unless such failure is due
primarily to the default or omission of the Underwriter, or because this
Agreement is terminated by the Underwriter pursuant to Section 10 hereof, or by
reason of any failure, refusal or inability on the part of the Company to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on their part to be performed, unless such failure,
refusal or inability is due primarily to the default or omission of the
Underwriter, the Company shall reimburse the Underwriter for reasonable
out-of-pocket expenses, including reasonable fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to
market the Shares or in contemplation of performing its obligations hereunder.
6. Conditions of Obligations of the Underwriter.
The obligation of the Underwriter to purchase the Firm Shares on the
Closing Date and the Option Shares, if any, on the Option Closing Date are
subject to the accuracy, as of the Closing Date or the Option Closing Date, as
the case may be, of the representations and warranties of the Company contained
herein, and to the performance in all material respects by the Company of its
covenants and obligations hereunder and to the following additional conditions:
11
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Securities Act shall have been made within the applicable
time period prescribed by, and in compliance with the applicable rules and
regulations of the Commission promulgated under the Securities Act, and any
request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Underwriter and complied with to its reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated or
threatened by the Commission and no injunction, restraining order or order of
any nature by a Federal or State court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance of the Shares.
(b) The Underwriter shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinions of Xxxxxx Xxxxxx Xxxxxxxxx
Xxxx and Xxxx LLP, counsel for the Company, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Underwriter substantially to
the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware and has the corporate power and
authority to carry on its business and to own, lease and operate its properties,
as such business and properties are described in the Prospectus.
(ii) The Company is duly qualified and is in good standing as
a foreign corporation authorized to do business in the States identified in such
opinion.
(iii) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered to the Underwriter against payment
therefor as provided by this Agreement, will be validly issued, fully paid and
non assessable, and the issuance of such Shares will not be subject to any
preemptive rights under the Delaware General Corporation Law statute or the
Charter of the Company.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) Except as may be required under the Securities Act and the
rules and regulations of the Commission thereunder and the Exchange Act and the
rules and regulations of the Commission thereunder, no filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any United States federal or Massachusetts state governmental
authority or agency is necessary for the execution and delivery of this
Agreement or the issuance, sale and delivery of Shares by the Company to the
Underwriter pursuant to this Agreement.
(vi) The statements in the Prospectus under the captions
"Description of Common Stock and Preferred Stock", insofar as such statements
constitute matters of law or legal conclusions are correct in all material
respects.
12
(vii) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company," as such term
is defined in the 1940 Act.
In addition to the matters set forth above, such counsel shall
confirm to you as follows: In the course of acting as counsel for the Company in
connection with the preparation of the Registration Statement and the
Prospectus, such counsel participated in conferences with officers and other
representatives of the Company, representatives of and counsel for the
Underwriter and representatives of the independent public accountants of the
Company, during which the contents of the Registration Statement and the
Prospectus were discussed. While the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that such counsel does not pass upon or assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except to the extent
expressly set forth pursuant to paragraph (vi) above), subject to the foregoing
and based on such participation and discussions:
(A) the Registration Statement, as of its effective date, and
the Prospectus, as of the date thereof (except for the financial statements,
including the notes thereto, and other financial, statistical and accounting
data and information, and information relating to the Underwriter and the method
of distribution of the Shares by the Underwriter included therein or omitted
therefrom, as to which such counsel need express no view) appear on their face
to be appropriately responsive in all material respects to the requirements of
the Securities Act and the applicable rules and regulations of the Commission
thereunder,
(B) no facts have come to the attention of such counsel that
have caused such counsel to believe that (1) the Registration Statement, at the
time the Registration Statement 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 (except as
set forth in the parenthetical in clause (A) above) or (2) the Prospectus, as of
the date it was filed with the Commission pursuant to Rules 424(b) under the
Securities Act and as of the Closing Date or the Option Closing Date, as the
case may be, contained or contains an untrue statement of a material fact or
omitted or omits 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 (except as set forth in the parenthetical in clause (A)
above),
(C) such counsel is not aware of any contract or other
document of a character required by the Securities Act and the applicable rules
and regulations of the Commission thereunder to be filed as an exhibit to the
Registration Statement that is not so filed, and
(D) such counsel is not aware of any action, proceeding or
litigation pending, contemplated or threatened against the Company before any
court or governmental or administrative agency or body that is required by the
Securities Act or the rules and regulations thereunder to be described in the
Registration Statement or the Prospectus that is not so described.
(c) The Underwriter shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxxxx Xxxxxxxxxx,
General Counsel for the Company,
13
dated the Closing Date or the Option Closing Date, addressed to the Underwriter
to the effect that the execution and delivery of this Agreement by the Company
and the consummation of the transactions contemplated thereby will not conflict
with or constitute a breach of any of the terms or provisions of, or a default
under the Charter, By-Laws, any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the Company.
(d) The Underwriter shall have received on the Closing Date or the
Option Closing Date, as the case may be, an intellectual property opinion of The
Law Offices of Xxxxx Xxxxxx, intellectual property counsel for the Company,
dated the Closing Date or the Option Closing Date, as the case may be, addressed
to the Underwriter (and stating that it may be relied upon by counsel to the
Underwriter) substantially in a form previously approved by you.
(e) The Underwriter shall have received from Ropes & Xxxx LLP,
counsel for the Underwriter, an opinion dated the Closing Date or the Option
Closing Date, as the case may be, substantially to the effect that:
(i) The Company is validly existing as a corporation and in
good standing under Delaware law.
(ii) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement against payment of the
consideration set forth therein, will be validly issued, fully paid and
non-assessable.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
In addition to the matters set forth above, such opinion shall also
include a statement that no facts have come to the attention of such counsel
that have caused such counsel to believe that (i) the Registration Statement (as
amended by any post-effective amendment filed prior to the date of such
opinion), at the time the Registration Statement (or such post-effective
amendment) became effective, and the Registration Statement as supplemented by
the Prospectus and the Prospectus (as supplemented) specifically relating to the
Shares, 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 (ii) the Prospectus, as of the date it was filed with
the Commission pursuant to Rule 424(b) under the Securities Act and as of the
Closing Date or the Option Closing Date, as the case may be, contained or
contains an untrue statement of a material fact or omitted or omits 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 (except that, in
the case of clauses (i) and (ii) above, such counsel need express no view as to
financial statements and related notes and other financial, statistical and
accounting data and information therein). With respect to such statement, Ropes
& Xxxx LLP may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(f) You shall have received, on each of the date hereof, the Closing
Date and, if applicable, the Option Closing Date, a letter dated the date
hereof, the Closing Date or the Option Closing Date, as the case may be, in form
and substance satisfactory to you, of
14
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable rules
and regulations of the Commission thereunder and stating that in their opinion
the financial statements examined by them and included in the Registration
Statement comply in form in all material respects with the applicable accounting
requirements of the Securities Act and the related published rules and
regulations of the Commission thereunder; and containing such other statements
and information as is ordinarily included in accountants' "comfort letters" to
Underwriter with respect to the financial statements and certain financial and
statistical information contained in the Registration Statement and Prospectus.
(g) The Underwriter shall have received on the Closing Date and, if
applicable, the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer of
the Company to the effect that as of the Closing Date or the Option Closing
Date, as the case may be, each of them represents on behalf of the Company that
the representations and warranties of the Company contained in Section 1 hereof
are true and correct as of the Closing Date or the Option Closing Date, as the
case may be.
(h) You shall have received on the date hereof a letter of BDO
Xxxxxxx, LLP, dated October 26, 2005, in the form attached hereto as Exhibit
II.
(i) The Company shall have furnished to the Underwriter such further
certificates and documents confirming the representations and warranties,
covenants and conditions contained herein and related matters as the Underwriter
may reasonably have requested.
(j) The Firm Shares and Option Shares, if any, have been approved
for quotation upon notice of issuance on the Nasdaq National Market.
(k) The Lockup Agreements described in Section 4(ix) are in full
force and effect.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriter hereunder may be terminated by the
Underwriter by notifying the Company of such termination in writing at or prior
to the Closing Date or the Option Closing Date, as the case may be.
In such event, the Company and the Underwriter shall not be under
any obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the Shares
required to be delivered as and when specified in this Agreement are subject to
the conditions that:
(a) at the Closing Date or the Option Closing Date, as the case may
be, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect or proceedings therefor initiated or
threatened.
15
(b) the Underwriter provide a letter acknowledging and agreeing that
the only information furnished or to be furnished by the Underwriter to the
Company for inclusion in any Prospectus or the Registration Statement consists
of the information set forth in the third, tenth and twelfth paragraphs under
the caption "Underwriting" in the Prospectus.
8. Indemnification.
(a) The Company agrees:
(i) to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which such Underwriter or any such controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (A) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendment or supplement
thereto and (B) 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 in the light of the circumstances under which they were made;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability of the Underwriter or
controlling person arises out of or is based upon (A) an untrue statement or
alleged untrue statement of a material fact contained in, or the omission or
alleged omission of a material fact from, any Preliminary Prospectus that was
corrected in the Prospectus or any amendment or supplement thereto, if such
Underwriter sold Shares to the person alleging such loss, claim, damage or
liability without sending or giving, at or prior to the written confirmation of
the sale of such Shares, a copy of the Prospectus or any amendment or supplement
thereto, but only if the Company has previously furnished copies of the
Prospectus or any such amendment or supplement to the Underwriter, or (B) an
untrue statement or alleged untrue statement contained in, or the omission or
alleged omission of a material fact from, the Registration Statement, any
Preliminary Prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Underwriter specifically for use in the preparation
thereof; and
(ii) except as otherwise provided in Section 8(a)(i), to
reimburse the Underwriter and each such controlling person upon demand for any
reasonable legal or other out-of-pocket expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage or liability, action or proceeding or in
responding to a subpoena or governmental inquiry related to the offering of the
Shares, whether or not such Underwriter or controlling person is a party to any
action or proceeding. In the event that it is finally judicially determined that
the Underwriter was not entitled to receive payments for legal and other
expenses pursuant to this subparagraph, the Underwriter will promptly return all
sums that had been advanced pursuant hereto.
(b) The Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims,
16
damages or liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Underwriter will be
liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Underwriter specifically
for use in the preparation thereof. This indemnity agreement will be in addition
to any liability which the Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Sections 8(a)(i), 8(a)(ii) or 8(b) shall be
available to any party who shall fail to give notice as provided in this Section
8(c) if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was materially prejudiced by the
failure to give such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of the provisions of Sections 8(a)(i), 8(a)(ii) or 8(b). In case any such
proceeding 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 therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party and shall pay as incurred the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or
within 30 days of presentation) the reasonable fees and expenses of the counsel
retained by the indemnified party in the event (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them or (iii) the indemnifying
party shall have failed to assume the defense and employ counsel acceptable to
the indemnified party within a reasonable period of time after notice of
commencement of the action. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Underwriter in the case of party indemnified pursuant to Section
8(a) and by the Company in the case of a party indemnified
17
pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of the
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then the indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law then the indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault 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 the Underwriter on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(d) shall be deemed to include any reasonable
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) the Underwriter shall
not be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Shares purchased by the Underwriter, and (ii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
18
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over the other
contributing party, agrees that process issuing from such court may be served
upon it by the other contributing party and consents to the service of such
process and agrees that the other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
the Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to the
Underwriter, or any person controlling the Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 8.
9. Notices.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed or delivered and confirmed as follows:
if to the Underwriter, to Deutsche Bank Securities Inc.,Underwriter address] and
Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxx, Esq.; if to the Company, to Akamai Technologies,
Inc., 0 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: General
Counsel, with a copy to Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq.
10. Termination.
This Agreement may be terminated by you by notice to the Company (a)
at any time prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to Option Shares) if any of the following
has occurred: (i) since the respective dates as of which information is given in
the Prospectus, any Material Adverse Change, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency or other national or international
calamity or crisis or change in economic or political conditions if the effect
of such outbreak, escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the United States would, in your reasonable
judgment, make it impracticable or inadvisable to market the Shares or to
enforce contracts for the sale of the Shares, or (iii) suspension of trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market or limitation on prices (other than limitations on
hours or numbers of days of trading) for securities on either such Exchange or
National Market, (iv) the enactment, publication, decree or other promulgation
of any statute,
19
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects or may materially and adversely
affect the business or operations of the Company, (v) the declaration of a
banking moratorium by United States or New York State authorities, (vi) any
downgrading, or placement on any watch list for possible downgrading, in the
rating of any of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Exchange Act), (vii) the suspension of trading of the Company's Common Stock
by the Nasdaq National Market, the Commission, or any other governmental
authority or (viii) the taking of any action by any governmental body or agency
in respect of its monetary or fiscal affairs which in your reasonable opinion
has a material adverse effect on the securities markets in the United States; or
(b) as provided in Section 6 of this Agreement.
11. Successors.
This Agreement has been and is made solely for the benefit of the
Underwriter and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from the Underwriter
shall be deemed a successor or assign merely because of such purchase.
12. Miscellaneous.
The Company acknowledges and agrees that the Underwriter in
providing investment banking services to the Company in connection with the
offering, including in acting pursuant to the terms of this Agreement, has acted
and is acting as an independent contractor and not as a fiduciary and the
Company does not intend such Underwriter to act in any capacity other than
independent contractor, including as a fiduciary or in any other position of
higher trust.
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.
This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York without regard to the conflict of laws
provisions thereof.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
[reminder of this page intentionally left blank]
20
Very truly yours,
AKAMAI TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx, Chief Executive Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx, Managing Director
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx, Director
21
SCHEDULE I
SCHEDULE OF SUBSIDIARIES
AKAMAI TECHNOLOGIES Ltd. -- Incorporated in the United Kingdom
AKAMAI TECHNOLOGIES GMBH -- Incorporated in Germany
AKAMAI TECHNOLOGIES SARL -- Incorporated in France
AKAMAI TECHNOLOGIES NETHERLANDS BV - Incorporated in the Netherlands
AKAMAI INTERNAIONAL BV - Incorporated in the Netherlands
AKAMAI SECURITIES TRUST -- Registered in Massachusetts
K STREAMING LLC - Organized in Delaware
AKAMAI SALES LLC - Organized in Delaware
AKAMAI JAPAN KK - Incorporated in Japan
KAHUA HK LIMITED - Organized in Hong Kong
SPEEDERA NETWORKS, INC. - Incorporated in Delaware
AKAMAI TECHNOLOGIES INDIA PRIVATE LTD. - Incorporated in India
22
SCHEDULE II
SCHEDULE OF PARTIES SUBJECT TO LOCK-UP AGREEMENTS
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx XX
C. Xxx Xxxxxxx
Xxxxxx Xxxxxx
F. Xxxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxx X. Xxxxxxxx
Xxxx Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxx
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EXHIBIT I
FORM OF LOCK-UP AGREEMENT
October 31, 2005
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Akamai Technologies, Inc., a Delaware
corporation (the "COMPANY"), proposes to enter into an underwriting agreement
(the "UNDERWRITING AGREEMENT") with an underwriter (the "UNDERWRITER") of a
proposed offering (the "OFFERING") of common stock, par value $0.01 per share,
of the Company (the "COMMON STOCK").
To induce the Underwriter to continue its efforts in connection with the
Offering, the undersigned hereby agrees that, without the prior written consent
and waiver of the Underwriter, the undersigned will not, during the period
commencing on the date hereof and ending on January 30, 2006, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (i) dispositions of
shares of Common Stock pursuant to a written plan for trading securities that is
designed to satisfy the requirements of Rule 10b5-1 promulgated under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and is existing
on the date hereof and (ii) transactions relating to shares of Common Stock or
other securities acquired by the undersigned in open market transactions or the
sale or transfer of shares to the acquiror in connection with the sale of the
Company pursuant to a merger, sale of stock, sale of assets or otherwise. In
addition, the undersigned agrees that, without the prior written consent of the
manager or managers, it will not, during the period commencing on the date
hereof and ending on January 30, 2006, make any demand for or exercise any right
with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock, cause to be
filed a registration statement with respect to Common Stock or such securities
or publicly announce the intention to do any of the foregoing .
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Notwithstanding the foregoing: (i) bona fide gifts and transfers by will or
intestacy; or (ii) dispositions or transfers to (A) the undersigned's members,
partners, stockholders, affiliates or immediate family, (B) trusts, family
limited partnerships or family limited liability companies for the direct or
indirect benefit of the undersigned and/or members of the undersigned's
immediate family, or (C) a trust or other entity for charitable and/or estate or
financial planning purposes, shall not be prohibited by this agreement;
provided, that in the case of any transfer or disposition pursuant to clauses
(i) or (ii) of this sentence, each donee or transferee shall agree in writing to
be bound by the foregoing in the same manner as it applies to the undersigned.
For purposes hereof, "immediate family" shall mean the undersigned and the
spouse, any lineal descendant, father, mother, brother or sister of the
undersigned and any lineal descendant, father, mother, brother or sister of the
undersigned's spouse.
The undersigned agrees that the terms of this lock-up supersede the terms
of any and all other lock-ups relating to Common Stock of the Company entered
into by the undersigned prior to the date hereof. If (1) the Company notifies
you in writing that it does not intend to proceed with the Offering, (2) the
registration statement or prospectus filed with the Securities and Exchange
Commission with respect to the Offering is withdrawn, (3) for any reason the
Underwriting Agreement shall be terminated prior to the Closing Date (as defined
in the Underwriting Agreement), or (4) the Closing Date shall not have occurred
by November 15, 2005, this agreement shall be terminated and the undersigned
shall be released from any obligations hereunder.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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The undersigned executes this lock-up agreement as of the date above
written.
Very truly yours,
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(Print Name - Individual or Entity)
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(Signature)
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(Title, if applicable)
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------------------------------------
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(Address)
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