sv3asr
As filed with the Securities and Exchange Commission on
December 27, 2006
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
AKAMAI TECHNOLOGIES,
INC.
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
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04-3432319
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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8 Cambridge Center
Cambridge, Massachusetts 02142
(617) 444-3000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Paul Sagan
President and Chief Executive Officer
8 Cambridge Center
Cambridge, Massachusetts 02142
(617) 444-3000
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code, of Agent for
Service)
Copy to:
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Melanie
Haratunian, Esq.
Akamai Technologies, Inc.
8 Cambridge Center
Cambridge, Massachusetts 02142
Telephone:
(617) 444-3000
Telecopy:
(617) 444-3001
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Susan W. Murley, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02129
Telephone: (617) 526-6000
Telecopy: (617) 526-5000
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box. þ
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount
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Offering
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Aggregate
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Registration
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Securities to be Registered
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to be Registered
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Price per Unit(1)
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Offering Price(1)
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Fee
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Common Stock, $0.01 par value
per share (including the associated Series A Junior
Participating Preferred Stock purchase rights)
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2,664,684
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$53.67
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$143,013,590.28
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$15,302.45
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(1) |
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Estimated solely for purposes of calculating the registration
fee pursuant to Rule 457(c) under the Securities Act, based
on average of high and low price per share of the common stock
as reported on The Nasdaq Global Select Market on
December 22, 2006. |
AKAMAI
TECHNOLOGIES, INC.
2,664,684 Shares
of Common Stock
This prospectus relates to resales of shares of common stock
previously issued by Akamai Technologies, Inc. or Akamai, to the
former stockholders, or selling stockholders, of Nine Systems
Corporation, a Delaware corporation, in connection with our
acquisition of that company.
We will not receive any proceeds from the sale of the shares
offered by this prospectus.
The selling stockholders identified in this prospectus, or their
pledgees, donees, transferees or other
successors-in-interest,
may offer the shares from time to time through public or private
transactions at prevailing market prices, at prices related to
prevailing market prices or at privately negotiated prices.
Our common stock is traded on The Nasdaq Global Market under the
symbol “AKAM.” On December 26, 2006, the closing
sale price of our common stock on Nasdaq was $53.00 per
share. You are urged to obtain current market quotations for the
common stock.
Investing in our common stock involves a high degree of risk.
See “Risk Factors” beginning on page 2.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is December 27, 2006.
TABLE OF
CONTENTS
In this prospectus, unless the context otherwise requires,
references to “Akamai,” “we,” “us”
and “our” refer to Akamai Technologies, Inc. and its
subsidiaries. Akamai, EdgeSuite, EdgeComputing and FreeFlow are
registered trademarks of Akamai Technologies, Inc. in the United
States
and/or other
countries. All other trademarks or trade names referred to in
this prospectus or in the documents that we incorporate by
reference into this prospectus are the property of their
respective owners.
We have not authorized anyone to provide you with information
different from that contained or incorporated by reference in
this prospectus. The selling stockholders are offering to sell,
and seeking offers to buy, shares of our common stock only in
jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of
the date of this prospectus, regardless of the time of delivery
of this prospectus or of any sale of our common stock.
i
PROSPECTUS
SUMMARY
This summary highlights important features of this offering
and the information included or incorporated by reference in
this prospectus. This summary does not contain all of the
information that you should consider before investing in our
common stock. You should read the entire prospectus carefully,
especially the risks of investing in our common stock discussed
under “Risk Factors.”
AKAMAI
TECHNOLOGIES, INC.
Akamai provides services for accelerating and improving the
delivery of content and applications over the Internet. Our
solutions are designed to help businesses, government agencies
and other enterprises enhance their revenue streams and reduce
costs by maximizing the performance of their online businesses
and operations. By advancing the performance and reliability of
their websites, our customers can improve visitor experiences
and increase the effectiveness of Web-based campaigns and
operations. Through the Akamai EdgePlatform, the technological
platform of Akamai’s business solutions, our customers are
able to utilize Akamai’s infrastructure and reduce expenses
associated with internal infrastructure
build-ups.
We began selling our content delivery services in 1999 under the
trade name
FreeFlow®.
Later that year, we added streaming media delivery services to
our portfolio and introduced traffic management services that
allow customers to monitor traffic patterns on their websites
both on a continual basis and for specific events. In 2000, we
began offering a software solution that identifies the
geographic location and network origin from which end users
access our customers’ websites, enabling content providers
to customize content without compromising user privacy. In 2001,
we commenced commercial sales of our
EdgeSuite®
offering, a suite of services that is designed to allow
high-performance and dynamic delivery of web content. In 2003,
we began offering on a commercial basis our
EdgeComputing®
service, which enables Web-based delivery of applications, such
as store/dealer locators, promotional contests, search
functionalities and user registration, over our network. In
2004, we packaged a number of services and specialized features
to tailor solutions to the needs of specific vertical market
segments, such as media and entertainment, software downloads
and online commerce. In particular, Akamai’s Media Delivery
services are aimed at addressing the rapid increase in use of
the Internet for delivery of music, sporting events and other
types of audio and video entertainment. In 2005, we began
commercial sales of our Web Application Accelerator service,
which is designed to improve the performance of Web- and
IP-based
applications through a combination of dynamic caching,
compression of large packets, routing and connection
optimization. We also introduced two free, publicly-available
information tools: the Akamai Net Usage Index for Retail, which
measures Internet traffic to selected retail sites, and the
Akamai Net Usage Index for News, which tracks online consumption
of news at selected news sites and portals.
We were incorporated in Delaware in 1998. Our principal
executive offices are located at 8 Cambridge Center, Cambridge,
Massachusetts 02142, our telephone number at that address is
(617) 444-3000
and our Internet address is www.akamai.com. The information on
our Internet website is not incorporated by reference in this
prospectus nor is any of the information that can be accessed
through links contained on our website, and you should not
consider it or any information that can be accessed through it
to be a part of this document. Our website address is included
as an inactive textual reference only.
THE
OFFERING
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Common stock offered by selling
stockholders
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2,664,684 shares
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Use of proceeds
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Akamai will not receive any
proceeds from the sale of shares in this offering
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Nasdaq Global Market symbol
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AKAM
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RISK
FACTORS
Investing in our common stock involves a high degree of risk.
You should carefully consider the risks and uncertainties
described below before purchasing our common stock. The risks
and uncertainties described below are not the only ones we face.
Additional risks and uncertainties may also impair our business
operations. If any of the following risks actually occur, our
business, financial condition or results of operations would
likely suffer. In that case, the trading price of our common
stock could fall, and you may lose all or part of the money you
paid to buy our common stock.
The
markets in which we operate are highly competitive, and we may
be unable to compete successfully against new entrants with
innovative approaches and established companies with greater
resources.
We compete in markets that are intensely competitive, highly
fragmented and rapidly changing. We have experienced and expect
to continue to experience increased competition. Many of our
current competitors, as well as a number of our potential
competitors, have longer operating histories, greater name
recognition, broader customer relationships and industry
alliances and substantially greater financial, technical and
marketing resources than we do. Other competitors may attract
customers by offering less-sophisticated versions of services
than we provide at lower prices than those we charge. Our
competitors may be able to respond more quickly than we can to
new or emerging technologies and changes in customer
requirements. Some of our current or potential competitors may
bundle their offerings with other services, software or hardware
in a manner that may discourage website owners from purchasing
any service we offer. Increased competition could result in
price and revenue reductions, loss of customers and loss of
market share, which could materially and adversely affect our
business, financial condition and results of operations.
In addition, potential customers may decide to purchase or
develop their own hardware, software and other technology
solutions rather than rely on an external provider like Akamai.
As a result, our competitors include hardware manufacturers,
software companies and other entities that offer
Internet-related solutions that are not service-based. It is an
important component of our growth strategy to educate
enterprises and government agencies about our services and
convince them to entrust their content and applications to an
external service provider, and Akamai in particular. If we are
unsuccessful in such efforts, our business, financial condition
and results of operations could suffer.
If we
are unable to sell our services at acceptable prices relative to
our costs, our business and financial results are likely to
suffer.
Prices we have been charging for some of our services have
declined in recent years. We expect that this decline may
continue in the future as a result of, among other things,
existing and new competition in the markets we serve.
Consequently, our historical revenue rates may not be indicative
of future revenues based on comparable traffic volumes. If we
are unable to sell our services at acceptable prices relative to
our costs or if we are unsuccessful with our strategy of selling
additional services and features to our existing content
delivery customers, our revenues and gross margins will
decrease, and our business and financial results will suffer.
Failure
to increase our revenues and keep our expenses consistent with
revenues could prevent us from maintaining profitability at
recent levels or at all.
The year ended December 31, 2004 was the first fiscal year
during which we achieved profitability as measured in accordance
with accounting principles generally accepted in the United
States of America. We have large fixed expenses, and we expect
to continue to incur significant bandwidth, sales and marketing,
product development, administrative and other expenses.
Therefore, we will need to generate higher revenues to maintain
profitability at recent levels or at all. There are numerous
factors that could, alone or in combination with other factors,
impede our ability to increase revenues
and/or
moderate expenses, including:
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failure to increase sales of our core services;
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significant increases in bandwidth costs or other operating
expenses;
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inability to maintain our prices;
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any failure of our current and planned services and software to
operate as expected;
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loss of any significant customers or loss of existing customers
at a rate greater than we increase our number of new customers
or our sales to existing customers;
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unauthorized use or access to content delivered over our network
or network failures;
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failure of a significant number of customers to pay our fees on
a timely basis or at all or failure to continue to purchase our
services in accordance with their contractual
commitments; and
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inability to attract high-quality customers to purchase and
implement our current and planned services.
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As
part of our business strategy, we have entered into and may
enter into or seek to enter into business combinations and
acquisitions that may be difficult to integrate, disrupt our
business, dilute stockholder value or divert management
attention.
On December 13, 2006, we completed our acquisition of Nine
Systems Corporation, or Nine Systems, and in June 2005, we
completed our acquisition of Speedera Networks, Inc., or
Speedera. We may seek to enter into additional business
combinations or acquisitions in the future. Acquisitions are
typically accompanied by a number of risks, including the
difficulty of integrating the operations and personnel of the
acquired companies, the potential disruption of our ongoing
business, the potential distraction of management, expenses
related to the acquisition and potential unknown liabilities
associated with acquired businesses. Any inability to integrate
completed acquisitions in an efficient and timely manner could
have an adverse impact on our results of operations. If we are
not successful in completing acquisitions that we may pursue in
the future, we may be required to reevaluate our business
strategy, and we may incur substantial expenses and devote
significant management time and resources without a productive
result. In addition, future acquisitions could require use of
substantial portions of our available cash or, as in the Nine
Systems and Speedera acquisitions, dilutive issuances of
securities. Future acquisitions or attempted acquisitions could
also have an adverse effect on our ability to remain profitable.
Future
changes in financial accounting standards may adversely affect
our reported results of operations.
A change in accounting standards can have a significant effect
on our reported results. New accounting pronouncements and
interpretations of accounting pronouncements have occurred and
may occur in the future. These new accounting pronouncements may
adversely affect our reported financial results. For example,
beginning in 2006, under Statement of Financial Accounting
Standards No. 123(R) “Share Based Payment”, or
SFAS No. 123(R), we are required to account for our
stock-based awards as a compensation expense and, as a result,
our net income and net income per share in subsequent periods
has been significantly reduced. Previously, we recorded
stock-based compensation expense only in connection with option
grants that have an exercise price below fair market value.
For option grants that have an exercise price at fair market
value, we calculated compensation expense and disclosed its
impact on net income (loss) and net income (loss) per share, as
well as the impact of all stock-based compensation expense in a
footnote to the consolidated financial statements.
SFAS No. 123(R) required us to adopt the new
accounting provisions beginning in our first quarter of 2006,
and requires us to expense stock-based awards, including shares
issued under our employee stock purchase plan, stock options,
restricted stock, deferred stock units and restricted stock
units, as compensation cost. As a result, our earnings per share
is likely to be significantly lower in the future even if our
revenues increase.
If we
are unable to develop new services and enhancements to existing
services, and if we fail to predict and respond to emerging
technological trends and customers’ changing needs, our
operating results may suffer.
The market for our services is characterized by rapidly changing
technology, evolving industry standards and new product and
service introductions. Our operating results depend on our
ability to develop and
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introduce new services into existing and emerging markets. The
process of developing new technologies is complex and uncertain;
we must commit significant resources to developing new services
or enhancements to our existing services before knowing whether
our investments will result in services the market will accept.
Furthermore, we may not execute successfully our technology
initiatives because of errors in planning or timing, technical
hurdles that we fail to overcome in a timely fashion,
misunderstandings about market demand or a lack of appropriate
resources. Failures in execution or market acceptance of new
services we introduce could result in competitors providing
those solutions before we do and, consequently, loss of market
share, revenues and earnings.
Any
unplanned interruption in the functioning of our network or
services could lead to significant costs and disruptions that
could reduce our revenues and harm our business, financial
results and reputation.
Our business is dependent on providing our customers with fast,
efficient and reliable distribution of application and content
delivery services over the Internet. For our core services, we
currently provide a standard guarantee that our networks will
deliver Internet content 24 hours a day, 7 days a
week, 365 days a year. If we do not meet this standard, our
customer does not pay for all or a part of its services on that
day. Our network or services could be disrupted by numerous
events, including natural disasters, failure or refusal of our
third-party network providers to provide the necessary capacity,
power losses and intentional disruptions of our services, such
as disruptions caused by software viruses or attacks by
unauthorized users. Although we have taken steps to prevent such
disruptions, there can be no assurance that attacks by
unauthorized users will not be attempted in the future, that our
enhanced security measures will be effective or that a
successful attack would not be damaging. Any widespread
interruption of the functioning of our network or services would
reduce our revenues and could harm our business, financial
results and reputation.
Because
our services are complex and are deployed in complex
environments, they may have errors or defects that could
seriously harm our business.
Our services are highly complex and are designed to be deployed
in and across numerous large and complex networks. From time to
time, we have needed to correct errors and defects in our
software. In the future, there may be additional errors and
defects in our software that may adversely affect our services.
We may not have in place adequate quality assurance procedures
to ensure that we detect errors in our software in a timely
manner. If we are unable to efficiently fix errors or other
problems that may be identified, or if there are unidentified
errors that allow persons to improperly access our services, we
could experience loss of revenues and market share, damage to
our reputation, increased expenses and legal actions by our
customers.
We may
have insufficient transmission and server capacity, which could
result in interruptions in our services and loss of
revenues.
Our operations are dependent in part upon transmission capacity
provided by third-party telecommunications network providers. In
addition, our distributed network must be sufficiently robust to
handle all of our customers’ traffic. We believe that we
have access to adequate capacity to provide our services;
however, there can be no assurance that we are adequately
prepared for unexpected increases in bandwidth demands by our
customers. In addition, the bandwidth we have contracted to
purchase may become unavailable for a variety of reasons,
including payment disputes or network providers going out of
business. Any failure of these network providers to provide the
capacity we require, due to financial or other reasons, may
result in a reduction in, or interruption of, service to our
customers. If we do not have access to third-party transmission
capacity, we could lose customers. If we are unable to obtain
transmission capacity on terms commercially acceptable to us or
at all, our business and financial results could suffer. We may
not be able to deploy on a timely basis enough servers to meet
the needs of our customer base or effectively manage the
functioning of those servers. In addition, damage or destruction
of, or other denial of access to, a facility where our servers
are housed could result in a reduction in, or interruption of,
service to our customers.
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If the
estimates we make, and the assumptions on which we rely, in
preparing our financial statements prove inaccurate, our actual
results may be adversely affected.
Our financial statements have been prepared in accordance with
accounting principles generally accepted in the United States of
America. The preparation of these financial statements requires
us to make estimates and judgments about, among other things,
taxes, revenue recognition, stock-based compensation costs,
capitalization of internal-use software, contingent obligations,
doubtful accounts and restructuring charges. These estimates and
judgments affect the reported amounts of our assets,
liabilities, revenues and expenses, the amounts of charges
accrued by us, such as those made in connection with our
restructuring charges, and related disclosure of contingent
assets and liabilities. We base our estimates on historical
experience and on various other assumptions that we believe to
be reasonable under the circumstances and at the time they are
made. If our estimates or the assumptions underlying them are
not correct, we may need to accrue additional charges that could
adversely affect our results of operations, which in turn could
adversely affect our stock price.
If we
are unable to retain our key employees and hire qualified sales
and technical personnel, our ability to compete could be
harmed.
Our future success depends upon the continued services of our
executive officers and other key technology, sales, marketing
and support personnel who have critical industry experience and
relationships that they rely on in implementing our business
plan. There is increasing competition for talented individuals
in the areas in which our primary offices are located. This
affects both our ability to retain key employees and hire new
ones. None of our officers or key employees is bound by an
employment agreement for any specific term. The loss of the
services of any of our key employees could delay the development
and introduction of, and negatively impact our ability to sell,
our services.
If our
license agreement with MIT terminates, our business could be
adversely affected.
We have licensed technology from MIT covered by various patents,
patent applications and copyrights relating to Internet content
delivery technology. Some of our core technology is based in
part on the technology covered by these patents, patent
applications and copyrights. Our license is effective for the
life of the patents and patent applications; however, under
limited circumstances, such as a cessation of our operations due
to our insolvency or our material breach of the terms of the
license agreement, MIT has the right to terminate our license. A
termination of our license agreement with MIT could have a
material adverse effect on our business.
We may
need to defend our intellectual property and processes against
patent or copyright infringement claims, which would cause us to
incur substantial costs.
Other companies or individuals, including our competitors, may
hold or obtain patents or other proprietary rights that would
prevent, limit or interfere with our ability to make, use or
sell our services or develop new services, which could make it
more difficult for us to increase revenues and improve or
maintain profitability. Companies holding Internet-related
patents or other intellectual property rights are increasingly
bringing suits alleging infringement of such rights. Any
litigation or claims, whether or not valid, could result in
substantial costs and diversion of resources and require us to
do one or more of the following:
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cease selling, incorporating or using products or services that
incorporate the challenged intellectual property;
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pay substantial damages;
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obtain a license from the holder of the infringed intellectual
property right, which license may not be available on reasonable
terms or at all; or
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If we are forced to take any of these actions, our business may
be seriously harmed. In the event of a successful claim of
infringement against us and our failure or inability to obtain a
license to the infringed technology, our business and operating
results could be materially adversely affected.
Our
business will be adversely affected if we are unable to protect
our intellectual property rights from unauthorized use or
infringement by third parties.
We rely on a combination of patent, copyright, trademark and
trade secret laws and restrictions on disclosure to protect our
intellectual property rights. We have previously brought
lawsuits against entities that we believe are infringing on our
intellectual property rights. These legal protections afford
only limited protection. Monitoring unauthorized use of our
services is difficult and we cannot be certain that the steps we
have taken will prevent unauthorized use of our technology,
particularly in foreign countries where the laws may not protect
our proprietary rights as fully as in the United States.
Although we have licensed from other parties proprietary
technology covered by patents, we cannot be certain that any
such patents will not be challenged, invalidated or
circumvented. Furthermore, we cannot be certain that any pending
or future patent applications will be granted, that any future
patent will not be challenged, invalidated or circumvented, or
that rights granted under any patent that may be issued will
provide competitive advantages to us.
We
face risks associated with international operations that could
harm our business.
We have operations in several foreign countries and may continue
to expand our sales and support organizations internationally.
Such expansion could require us to make significant
expenditures. We are increasingly subject to a number of risks
associated with international business activities that may
increase our costs, lengthen our sales cycle and require
significant management attention. These risks include:
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increased expenses associated with marketing services in foreign
countries;
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currency exchange rate fluctuations;
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unexpected changes in regulatory requirements resulting in
unanticipated costs and delays;
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interpretations of laws or regulations that would subject us to
regulatory supervision or, in the alternative, require us to
exit a country, which could have a negative impact on the
quality of our services or our results of operations;
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longer accounts receivable payment cycles and difficulties in
collecting accounts receivable; and
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potentially adverse tax consequences.
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Any
failure to meet our debt obligations would damage our
business.
We have long-term debt. As of September 30, 2006, our total
long-term debt was $200.0 million. If we are unable to
remain profitable or if we use more cash than we generate in the
future, our level of indebtedness could adversely affect our
future operations by increasing our vulnerability to adverse
changes in general economic and industry conditions and by
limiting or prohibiting our ability to obtain additional
financing for future capital expenditures, acquisitions and
general corporate and other purposes. In addition, if we are
unable to make interest or principal payments when due, we would
be in default under the terms of our long-term debt obligations,
which would result in all principal and interest becoming due
and payable which, in turn, would seriously harm our business.
Internet-related
and other laws could adversely affect our
business.
Laws and regulations that apply to communications and commerce
over the Internet are becoming more prevalent. In particular,
the growth and development of the market for online commerce has
prompted calls for more stringent tax, consumer protection and
privacy laws, both in the United States and abroad, that may
impose additional burdens on companies conducting business
online or providing Internet-related services such as ours. This
could negatively affect both our business directly as well as
the businesses of our customers, which could reduce their demand
for our services. Tax laws that might apply to our servers,
which are located
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in many different jurisdictions, could require us to pay
additional taxes that would adversely affect our continued
profitability. We have recorded certain tax reserves to address
potential exposures involving our sales and use and franchise
tax positions. These potential tax liabilities result from the
varying application of statutes, rules, regulations and
interpretations by different jurisdictions. Our reserves,
however, may not be adequate to reflect our total actual
liability. Internet-related laws remain largely unsettled, even
in areas where there has been some legislative action. The
adoption or modification of laws or regulations relating to the
Internet or our operations, or interpretations of existing law,
could adversely affect our business.
Provisions
of our charter documents, our stockholder rights plan and
Delaware law may have anti-takeover effects that could prevent a
change in control even if the change in control would be
beneficial to our stockholders.
Provisions of our amended and restated certificate of
incorporation, amended and restated by-laws and Delaware law
could make it more difficult for a third party to acquire us,
even if doing so would be beneficial to our stockholders. In
addition, our Board of Directors has adopted a stockholder
rights plan the provisions of which could make it more difficult
for a potential acquirer of Akamai to consummate an acquisition
transaction without the approval of our Board of Directors.
If we
are required to seek additional funding, such funding may not be
available on acceptable terms or at all.
If our revenues decrease or grow more slowly than we anticipate,
if our operating expenses increase more than we expect or cannot
be reduced in the event of lower revenues, or if we seek to
acquire significant businesses or technologies, we may need to
obtain funding from outside sources. If we are unable to obtain
this funding, our business would be materially and adversely
affected. In addition, even if we were to find outside funding
sources, we might be required to issue securities with greater
rights than the securities we have outstanding today. We might
also be required to take other actions that could lessen the
value of our common stock, including borrowing money on terms
that are not favorable to us. In addition, we may not be able to
raise any additional capital.
A
class action lawsuit has been filed against us and an adverse
resolution of such action could have a material adverse effect
on our financial condition and results of operations in the
period in which the lawsuit is resolved.
We are named as a defendant in a purported class action lawsuit
filed in 2001 alleging that the underwriters of our initial
public offering received undisclosed compensation in connection
with our initial public offering of common stock in violation of
the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended. See Item 3 of Part I
of our annual report on
Form 10-K
for the year ended December 31, 2005 for more information.
Any conclusion of these matters in a manner adverse to us could
have a material adverse affect on our financial position and
results of operations.
We may
become involved in other litigation that may adversely affect
us.
In the ordinary course of business, we are or may become
involved in litigation, administrative proceedings and
governmental proceedings. Such matters can be time-consuming,
divert management’s attention and resources and cause us to
incur significant expenses. Furthermore, there can be no
assurance that the results of any of these actions will not have
a material adverse effect on our business, results of operations
or financial condition.
SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus includes and incorporates forward-looking
statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. All statements,
other than statements of historical facts, included or
incorporated in this prospectus regarding our strategy, future
operations, financial position, future revenues, projected
costs, prospects, plans and objectives of management are
forward-looking statements. The words “anticipates,”
“believes,”
7
“estimates,” “expects,” “intends,”
“may,” “plans,” “projects,”
“will,” “would” and similar expressions are
intended to identify forward-looking statements, although not
all forward-looking statements contain these identifying words.
We cannot guarantee that we actually will achieve the plans,
intentions or expectations disclosed in our forward-looking
statements and you should not place undue reliance on our
forward-looking statements. Actual results or events could
differ materially from the plans, intentions and expectations
disclosed in the forward-looking statements we make. We have
included important factors in the cautionary statements included
or incorporated in this prospectus, particularly under the
heading “Risk Factors”, that we believe could cause
actual results or events to differ materially from the
forward-looking statements that we make. Our forward-looking
statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or
investments we may make. Any such forward-looking statements
represent management’s views as of the date of the document
in which such forward-looking statement is contained. While we
may elect to update such forward-looking statements at some
point in the future, we disclaim any obligation to do so, even
if subsequent events cause our views to change.
USE OF
PROCEEDS
We are filing the registration statement of which this
prospectus is a part to permit the holders of shares of our
common stock described in the section entitled “Selling
Stockholders” to resell such shares. We will not receive
any of the proceeds from the resale of the shares from time to
time by such holders. The selling stockholders will pay any
underwriting discounts and commissions and expenses incurred by
the selling stockholders for brokerage, accounting, tax or legal
services or any other expenses incurred by the selling
stockholders in disposing of the shares. We will bear all other
costs, fees and expenses incurred in effecting the registration
of the shares covered by this prospectus, including, without
limitation, all registration and filing fees, Nasdaq Global
Market listing fees and fees and expenses of our counsel, our
accountants and our independent registered public accounting
firm.
SELLING
STOCKHOLDERS
We issued the shares of common stock covered by this prospectus
in a private placement in connection with our acquisition of
Nine Systems Corporation on December 13, 2006. The
following table sets forth, to our knowledge, certain
information about the selling stockholders as of
December 26, 2006.
8
Beneficial ownership is determined in accordance with the rules
of the Securities and Exchange Commission, or SEC, and includes
voting or investment power with respect to shares. Shares of
common stock issuable under stock options that are exercisable
within 60 days after December 26, 2006 are deemed
outstanding for computing the percentage ownership of the person
holding the options but are not deemed outstanding for computing
the percentage ownership of any other person. Unless otherwise
indicated below, to our knowledge, all persons named in the
table have sole voting and investment power with respect to
their shares of common stock, except to the extent authority is
shared by spouses under applicable law. The inclusion of any
shares in this table does not constitute an admission of
beneficial.
| |
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|
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Number of
|
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|
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|
Shares of Common
|
|
Shares of
|
|
|
|
|
|
Stock Beneficially
|
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Common Stock
|
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Shares of Common Stock to be Beneficially Owned
|
|
|
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Owned Prior to Offering
|
|
Being Offered
|
|
After Offering(1)
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|
Name of Selling Stockholder
|
|
Number(2)
|
|
Percentage
|
|
Offered(2)
|
|
Number(2)
|
|
Percentage
|
|
|
|
Wren Holdings LLC(3)
|
|
|
1,514,556
|
|
|
|
*
|
|
|
|
1,514,556
|
|
|
|
0
|
|
|
|
*
|
|
|
Javva Partners LLC(4)
|
|
|
527,935
|
|
|
|
*
|
|
|
|
527,935
|
|
|
|
0
|
|
|
|
*
|
|
|
Catalyst Investors, L.P.
|
|
|
285,023
|
|
|
|
*
|
|
|
|
285,023
|
|
|
|
0
|
|
|
|
*
|
|
|
Cameron Family Partnership, L.P.(5)
|
|
|
71,714
|
|
|
|
*
|
|
|
|
71,714
|
|
|
|
0
|
|
|
|
*
|
|
|
Janney, Montgomery &
Scott Inc. as custodian for IRA FBO Andrew T. Dwyer
|
|
|
68,103
|
|
|
|
*
|
|
|
|
68,103
|
|
|
|
0
|
|
|
|
*
|
|
|
Rick Murphy
|
|
|
11,491
|
|
|
|
*
|
|
|
|
11,491
|
|
|
|
0
|
|
|
|
*
|
|
|
Janney, Montgomery &
Scott Inc. as custodian for SEP FBO Andrew T. Dwyer
|
|
|
5,919
|
|
|
|
*
|
|
|
|
5,919
|
|
|
|
0
|
|
|
|
*
|
|
|
Yehida Inc.
|
|
|
46
|
|
|
|
*
|
|
|
|
46
|
|
|
|
0
|
|
|
|
*
|
|
|
Peter D. Mountanos
|
|
|
10,088
|
|
|
|
*
|
|
|
|
10,088
|
|
|
|
0
|
|
|
|
*
|
|
|
Jenny J. Kim
|
|
|
5,528
|
|
|
|
*
|
|
|
|
5,528
|
|
|
|
0
|
|
|
|
*
|
|
|
Morris Friedman
|
|
|
3,512
|
|
|
|
*
|
|
|
|
3,512
|
|
|
|
0
|
|
|
|
*
|
|
|
Michael Langsner
|
|
|
156
|
|
|
|
*
|
|
|
|
156
|
|
|
|
0
|
|
|
|
*
|
|
|
e-Media LLC
|
|
|
92,723
|
|
|
|
*
|
|
|
|
92,723
|
|
|
|
0
|
|
|
|
*
|
|
|
Newport Capital Partners
|
|
|
8,852
|
|
|
|
*
|
|
|
|
8,852
|
|
|
|
0
|
|
|
|
*
|
|
|
Milton Baumwolspiner
|
|
|
194
|
|
|
|
*
|
|
|
|
194
|
|
|
|
0
|
|
|
|
*
|
|
|
Charles Hoffman
|
|
|
194
|
|
|
|
*
|
|
|
|
194
|
|
|
|
0
|
|
|
|
*
|
|
|
Barry Wien
|
|
|
3,589
|
|
|
|
*
|
|
|
|
3,589
|
|
|
|
0
|
|
|
|
*
|
|
|
Unknown
|
|
|
55,061
|
|
|
|
*
|
|
|
|
55,061
|
|
|
|
55,061
|
|
|
|
*
|
|
|
|
|
|
* |
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Less than one percent. |
| |
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(1) |
|
We do not know when or in what amounts a selling stockholder may
offer shares for sale. The selling stockholders might not sell
any or all of the shares offered by this prospectus. Because the
selling stockholders may offer all or some of the shares
pursuant to this offering, and because there are currently no
agreements, arrangements or understandings with respect to the
sale of any of the shares, we cannot estimate the number of the
shares that will be held by the selling stockholders after
completion of the offering. However, for purposes of this table,
we have assumed that, after completion of the offering, none of
the shares covered by this prospectus will be held by the
selling stockholders. |
| |
|
(2) |
|
Approximately 15.25% of the shares represented are held in
escrow as security for certain indemnification obligations of
Nine Systems under the terms of the Agreement and Plan of Merger
governing Akamai’s acquisition of Nine Systems and a
related Escrow Agreement. |
| |
|
(3) |
|
Dort A. Cameron III is Managing Member of Wren Holdings LLC
and was previously a member of the board of directors of Nine
Systems Corporation. Mr. Cameron has sole voting and
investment power with respect to all of these shares. |
9
|
|
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|
(4) |
|
Howard Katz is Sole Managing Member of Javva Partners LLC and
was previously a member of the board of directors of Nine
Systems Corporation. Mr. Katz has sole voting and
investment power with respect to all of these shares. |
| |
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(5) |
|
Dort A. Cameron III is General Partner of Cameron Family
Partnership, L.P. and was previously a member of the board of
directors of Nine Systems Corporation. Mr. Cameron has sole
voting and investment power with respect to all of these shares. |
Except as described in footnotes above, none of the selling
stockholders has held any position or office with, or has
otherwise had a material relationship with, us or any of our
subsidiaries within the past three years. In connection with our
acquisition of Nine Systems Corporation, we entered into
employment agreements with Troy Snyder, formerly Chief Executive
Officer of Nine Systems, Jerry Scheibeler, formerly Vice
President of Sales of Nine Systems, and Christopher Knox,
formerly Chief Technology Officer of Nine Systems, under which
each agreed to perform certain services for us.
This prospectus also covers any additional shares of common
stock that we may issue or that may be issuable by reason of any
stock split, stock dividend or similar transactions involving
our common stock.
PLAN OF
DISTRIBUTION
The shares covered by this prospectus may be offered and sold
from time to time by the selling stockholders. The term
“selling stockholders” includes donees, pledgees,
transferees or other
successors-in-interest
selling shares received after the date of this prospectus from a
selling stockholder as a gift, pledge, partnership distribution
or other non-sale related transfer. The selling stockholders
will act independently of us in making decisions with respect to
the timing, manner and size of each sale. Such sales may be made
on one or more exchanges or in the
over-the-counter
market or otherwise, at prices and under terms then prevailing
or at prices related to the then current market price or in
negotiated transactions. The selling stockholders may sell their
shares by one or more of, or a combination of, the following
methods:
|
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| |
•
|
purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
|
| |
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•
|
ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
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•
|
block trades in which the broker-dealer so engaged will attempt
to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
|
| |
| |
•
|
an
over-the-counter
distribution in accordance with the rules of The Nasdaq Global
Market;
|
| |
| |
•
|
in privately negotiated transactions;
|
| |
| |
•
|
in options transactions; and
|
| |
| |
•
|
by any other legally available means.
|
In addition, any shares that qualify for sale pursuant to
Rule 144 may be sold under Rule 144 rather than
pursuant to this prospectus.
To the extent required, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution. In connection with distributions of the shares or
otherwise, the selling stockholders may enter into hedging
transactions with broker-dealers or other financial
institutions. In connection with such transactions,
broker-dealers or other financial institutions may engage in
short sales of the common stock in the course of hedging the
positions they assume with selling stockholders. The selling
stockholders may also sell the common stock short and redeliver
the shares to close out such short positions. The selling
stockholders may also enter into option or other transactions
with broker-dealers or other financial institutions which
require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares
such broker-dealer or other financial institution may resell
pursuant to this prospectus (as supplemented or amended to
reflect such transaction). The selling stockholders may also
pledge shares to a broker-dealer or other financial institution,
and, upon a default, such broker-dealer or other financial
institution, may effect sales of the pledged shares pursuant to
this prospectus (as supplemented or amended to reflect such
transaction).
10
In effecting sales, broker-dealers or agents engaged by the
selling stockholders may arrange for other broker-dealers to
participate. Broker-dealers or agents may receive commissions,
discounts or concessions from the selling stockholders in
amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling
stockholders and any broker-dealers who execute sales for the
selling stockholders may be deemed to be
“underwriters” within the meaning of the Securities
Act in connection with such sales. Any profits realized by the
selling stockholders and the compensation of any broker-dealer
may be deemed to be underwriting discounts and commissions. Some
of the underwriters or deemed underwriters or agents and their
associates may be customers of, engage in transactions with, and
perform services for us in the ordinary course of business.
In order to comply with the securities laws of certain states,
if applicable, the shares must be sold in such jurisdictions
only through registered or licensed brokers or dealers. In
addition, in certain states the shares may not be sold unless
they have been registered or qualified for sale in the
applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
We have advised the selling stockholders that the
anti-manipulation rules of Regulation M under the Exchange
Act may apply to sales of shares in the market and to the
activities of the selling stockholders and their affiliates. In
addition, we will make copies of this prospectus available to
the selling stockholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act. The
selling stockholders may indemnify any broker-dealer that
participates in transactions involving the sale of the shares
against certain liabilities, including liabilities arising under
the Securities Act.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth
the number of shares being offered and the terms of the
offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any
discount, commission or concession allowed or reallowed or paid
to any dealer, and the proposed selling price to the public.
We have agreed to indemnify the selling stockholders and each of
their respective directors, officers and affiliates against
certain liabilities, including certain liabilities under the
Securities Act.
We have agreed with the selling stockholders to keep the
registration statement of which this prospectus constitutes a
part effective until the earlier of (i) such time as all of
the shares covered by this prospectus have been disposed of
pursuant to and in accordance with the registration statement or
(ii) December 27, 2007. Notwithstanding the foregoing
obligations, we may, under specified circumstances, suspend the
effectiveness of the registration statement, or any amendments
or supplement thereto.
LEGAL
MATTERS
The validity of the shares offered by this prospectus has been
passed upon by Wilmer Cutler Pickering Hale and Dorr LLP.
EXPERTS
The financial statements and management’s assessment of the
effectiveness of internal control over financial reporting
(which is included in Management’s Report on Internal
Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on
Form 10-K
for the year ended December 31, 2005 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, as stated
in their report given upon their authority as experts in
accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the
SEC. You may read and copy any document we file at the
SEC’s public reference room at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549. You should call
1-800-SEC-0330
for more information on the public reference room. Our SEC
filings are also available to you on the SEC’s Internet
site at www.sec.gov.
11
This prospectus is part of a registration statement that we
filed with the SEC. The registration statement contains more
information than this prospectus regarding us and our common
stock, including certain exhibits and schedules. You can obtain
a copy of the registration statement from the SEC at the address
listed above or from the SEC’s Internet site.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC requires us to “incorporate” into this
prospectus information that we file with the SEC in other
documents. This means that we can disclose important information
to you by referring to other documents that contain that
information. The information incorporated by reference is
considered to be part of this prospectus. Information contained
in this prospectus and information that we file with the SEC in
the future and incorporate by reference in this prospectus
automatically updates and supersedes previously filed
information. We incorporate by reference the documents listed
below and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus and prior to the sale of all
the shares covered by this prospectus.
(1) Our Current Report on
Form 8-K
filed February 17, 2006;
(2) Our Current Report on
Form 8-K
filed March 8, 2006;
(3) Our Annual Report on
Form 10-K
for the year ended December 31, 2005;
(4) Our definitive proxy statement on Schedule 14A
filed on April 10, 2006;
(5) Our Quarterly Report on
Form 10-Q
filed May 10, 2006;
(6) Our Current Report on
Form 8-K
filed May 26, 2006;
(7) Our Current Report on
Form 8-K
filed July 21, 2006;
(8) Our Quarterly Report on
Form 10-Q
filed August 9, 2006;
(9) Our Current Report on
Form 8-K
filed September 26, 2006;
(10) Our Current Report on
Form 8-K
filed October 20, 2006;
(11) Our Quarterly Report on
Form 10-Q
filed November 9, 2006;
(12) Our Current Report on
Form 8-K
filed November 22, 2006;
(13) Our Current Report on
Form 8-K/A
filed November 28, 2006;
(14) Our Current Report on
Form 8-K
filed December 22, 2006;
(15) Our Current Report on
Form 8-K/A
filed on December 27, 2006; and
(16) The description of the securities contained in our
registration statements on
Form 8-A
filed under the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
A statement contained in a document incorporated by reference
into this prospectus shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus, any prospectus
supplement or in any other subsequently filed document which is
also incorporated in this prospectus modifies or replaces such
statement. Any statements so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a
part of this prospectus.
You may request a copy of these documents, which will be
provided to you at no cost, by writing or telephoning us using
the following contact information:
Akamai Technologies, Inc.
8 Cambridge Center
Cambridge, Massachusetts 02142
Attention: Investor Relations
Telephone:
(617) 444-3000
12
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.
|
The following table sets forth the various expenses to be
incurred in connection with the sale and distribution of the
securities being registered hereby, all of which will be borne
by Akamai (except any underwriting discounts and commissions and
expenses incurred by the selling stockholders for brokerage,
accounting, tax or legal services or any other expenses incurred
by the selling stockholders in disposing of the shares). All
amounts shown are estimates except the SEC registration fee.
| |
|
|
|
|
|
SEC registration fee
|
|
$
|
15,302
|
|
|
|
|
|
|
|
|
Legal fees and expenses
|
|
$
|
15,000
|
|
|
Accounting fees and expenses
|
|
$
|
9,000
|
|
|
|
|
|
|
|
|
Miscellaneous expenses
|
|
$
|
15,000
|
|
|
Total expenses
|
|
$
|
54,302
|
|
|
|
|
|
|
|
|
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
Section 102 of the Delaware General Corporation Law allows
a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director,
except where the director breached his duty of loyalty, failed
to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment of a dividend
or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit. We have
included such a provision in our Certificate of Incorporation.
Section 145 of the Delaware General Corporation Law, as
amended, provides that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Section 145 further provides that a corporation similarly
may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure
a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite an
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Article SEVENTH of our Restated Certificate of
Incorporation, as amended (the “Restated Certificate of
Incorporation”), provides that no director of Akamai shall
be personally liable for any monetary damages for
II-1
any breach of fiduciary duty as a director, except to the extent
that the Delaware General Corporation Law prohibits the
elimination or limitation of liability of directors for breach
of fiduciary duty.
Article EIGHTH of our Restated Certificate of Incorporation
provides that a director or officer of Akamai: (a) shall be
indemnified by Akamai against all expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement incurred in connection with any litigation or other
legal proceeding (other than an action by or in the right of
Akamai) brought against him by virtue of his position as a
director or officer of Akamai if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the
best interests of Akamai, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful and (b) shall be indemnified by Akamai
against all expenses (including attorneys’ fees) and
amounts paid in settlement incurred in connection with any
action by or in the right of Akamai brought against him by
virtue of his position as a director or officer of Akamai if he
acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of Akamai, except that
no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to
Akamai, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. Notwithstanding
the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is
required to be indemnified by Akamai against all expenses
(including attorneys’ fees) incurred in connection
therewith. Expenses shall be advanced to a director or officer
at his request, provided that he undertakes to repay the amount
advanced if it is ultimately determined that he is not entitled
to indemnification for such expenses.
Indemnification is required to be made unless Akamai determines
that the applicable standard of conduct required for
indemnification has not been met. In the event of a
determination by Akamai that the director or officer did not
meet the applicable standard of conduct required for
indemnification, or if Akamai fails to make an indemnification
payment within 60 days after such payment is claimed by
such person, such person is permitted to petition the court to
make an independent determination as to whether such person is
entitled to indemnification. As a condition precedent to the
right of indemnification, the director or officer must give
Akamai notice of the action for which indemnity is sought and
Akamai has the right to participate in such action or assume the
defense thereof.
Article EIGHTH of our Restated Certificate of Incorporation
further provides that the indemnification provided therein is
not exclusive, and provides that in the event that the Delaware
General Corporation Law is amended to expand the indemnification
permitted to directors or officers, then Akamai must indemnify
those persons to the fullest extent permitted by such law as so
amended.
We have purchased directors’ and officers’ liability
insurance which would indemnify our directors and officers
against damages arising out of certain kinds of claims which
might be made against them based on their negligent acts or
omissions while acting in their capacity as such.
II-2
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Exhibit
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Number
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Description
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4
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.1(1)
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Restated Certificate of
Incorporation, as amended.
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4
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.2(2)
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Amended and Restated By-laws, as
amended.
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4
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.3(3)
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Rights Agreement, dated as of
September 10, 2002, between Akamai and EquiServe Trust
Company, N.A.
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4
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.4(4)
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Certificate of Designations of
Series A Junior Participating Preferred Stock of the
Registrant.
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4
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.5(5)
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Amendment No. 1, dated as of
January 29, 2004, to the Rights Agreement, dated as of
September 10, 2002, between Akamai and EquiServe Trust
Company, N.A.
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4
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.6
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Agreement and Plan of Merger,
dated as of November 17, 2006, among Akamai, Nantucket
Acquisition Corp., Nine Systems Corporation and the Stockholders
identified therein.
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5
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.1
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Opinion of Wilmer Cutler Pickering
Hale and Dorr LLP.
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23
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.1
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Consent of PricewaterhouseCoopers
LLP
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23
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.2
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Consent of Wilmer Cutler Pickering
Hale and Dorr LLP (included in Exhibit 5.1)
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23
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.3
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Consent of BDO Seidman, LLP
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23
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.4
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Consent of PricewaterhouseCoopers
LLP
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(1) |
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Incorporated by reference to the Registrant’s Quarterly
Report on Form
10-Q filed
with the Commission on August 14, 2000. |
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(2) |
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Incorporated by reference to the Registrant’s
Form S-1
(File No.
333-85679),
as amended, filed with the Securities and Exchange Commission on
August 20, 1999. |
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(3) |
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Incorporated by reference to the Registrant’s Current
Report on
Form 8-K
filed with the Commission on September 11, 2002. |
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(4) |
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Incorporated by reference to the Registrant’s Quarterly
Report on Form
10-Q filed
with the Commission on November 14, 2002. |
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(5) |
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Incorporated by reference to the Registrant’s Current
Report on
Form 8-K
filed with the Commission on February 2, 2004. |
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
II-3
provided, however, that paragraphs (i),
(ii) and (iii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
II-4
(6) That, for the purpose of determining any liability
under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Cambridge, Commonwealth of Massachusetts, on
December 27, 2006.
Akamai Technologies, Inc.
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By:
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/s/ Melanie
Haratunian
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Melanie Haratunian
Vice President and General Counsel
SIGNATURES
AND POWER OF ATTORNEY
We, the undersigned officers and directors of Akamai
Technologies, Inc., hereby severally constitute and appoint Paul
Sagan, J. Donald Sherman and Melanie Haratunian, and each of
them singly, our true and lawful attorneys with full power to
any of them, and to each of them singly, to sign for us and in
our names in the capacities indicated below the Registration
Statement on
Form S-3
filed herewith and any and all post-effective amendments to said
Registration Statement and generally to do all such things in
our name and behalf in our capacities as officers and directors
to enable Akamai Technologies, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by
our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Paul
Sagan
Paul
Sagan
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President, Chief Executive
Officer,
and Director
(Principal Executive Officer)
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December 27, 2006
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/s/ J.
Donald Sherman
J.
Donald Sherman
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Chief Financial Officer
(Principal Financing and
Accounting Officer)
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December 27, 2006
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/s/ George
H. Conrades
George
H. Conrades
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Director
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December 27, 2006
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/s/ Martin
M. Coyne II
Martin
M. Coyne II
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Director
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December 27, 2006
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/s/ Ronald
L. Graham
Ronald
L. Graham
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Director
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December 27, 2006
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/s/ William
A. Halter
William
A. Halter
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Director
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December 27, 2006
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II-6
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Signature
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Title
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Date
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/s/ Peter
J. Kight
Peter
J. Kight
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Director
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December 27, 2006
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/s/ F.
Thomson Leighton
F.
Thomson Leighton
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Director
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December 27, 2006
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/s/ Geoffrey
A. Moore
Geoffrey
A. Moore
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Director
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December 27, 2006
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/s/ Frederic
V. Salerno
Frederic
V. Salerno
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Director
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December 27, 2006
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/s/ Naomi
O. Seligman
Naomi
O. Seligman
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Director
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December 27, 2006
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II-7